EXHIBIT 4
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GS MORTGAGE SECURITIES CORP.,
Depositor,
CHASE MANHATTAN MORTGAGE CORPORATION,
Servicer,
ACCREDITED HOME LENDERS, INC.,
Servicer and Responsible Party,
and
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
Trustee
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POOLING AND SERVICING AGREEMENT
Dated as of October 1, 2003
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GSAMP TRUST 2003-AHL
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2003-AHL
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.01 Definitions..................................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans.................................
Section 2.02 Acceptance by the Trustee of the Mortgage Loans..............
Section 2.03 Representations, Warranties and Covenants of the
Responsible Party and the Servicer..........................
Section 2.04 Delivery of Opinion of Counsel in Connection with
Substitution; Non-Qualified Mortgages.......................
Section 2.05 Execution and Delivery of Certificates.......................
Section 2.06 REMIC Matters................................................
Section 2.07 Representations and Warranties of the Depositor..............
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicer to Service Mortgage Loans............................
Section 3.02 Subservicing Agreements between the Servicer and
Subservicers................................................
Section 3.03 Successor Subservicers.......................................
Section 3.04 Liability of the Servicer....................................
Section 3.05 No Contractual Relationship between Subservicers and the
Trustee.....................................................
Section 3.06 Assumption or Termination of Subservicing Agreements by
Trustee.....................................................
Section 3.07 Collection of Certain Mortgage Loan Payments.................
Section 3.08 Subservicing Accounts........................................
Section 3.09 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts.............................................
Section 3.10 Collection Account...........................................
Section 3.11 Withdrawals from the Collection Account......................
Section 3.12 Investment of Funds in the Collection Account and the
Distribution Account........................................
Section 3.13 Maintenance of Hazard Insurance, Errors and Omissions and
Fidelity Coverage...........................................
Section 3.14 Enforcement of Due-on-Sale Clauses; Assumption Agreements....
Section 3.15 Realization upon Defaulted Mortgage Loans....................
Section 3.16 Release of Mortgage Files....................................
Section 3.17 Title, Conservation and Disposition of REO Property..........
Section 3.18 Notification of Adjustments..................................
Section 3.19 Access to Certain Documentation and Information Regarding
the Mortgage Loans..........................................
Section 3.20 Documents, Records and Funds in Possession of the
Servicer to Be Held for the Trustee.........................
Section 3.21 Servicing Compensation.......................................
Section 3.22 Annual Statement as to Compliance............................
Section 3.23 Annual Independent Public Accountants' Servicing
Statement; Financial Statements.............................
Section 3.24 Trustee to Act as Servicer...................................
Section 3.25 Compensating Interest........................................
Section 3.26 Credit Reporting; Xxxxx-Xxxxx-Xxxxxx Act.....................
Section 3.27 Excess Reserve Fund Account; Distribution Account............
Section 3.28 Optional Purchase of Delinquent Mortgage Loans...............
Section 3.29 Transfer of Servicing for the Mortgage Loans.................
ARTICLE IV
DISTRIBUTIONS AND
ADVANCES BY THE SERVICER
Section 4.01 Advances.....................................................
Section 4.02 Priorities of Distribution...................................
Section 4.03 Monthly Statements to Certificateholders.....................
Section 4.04 Certain Matters Relating to the Determination of LIBOR.......
Section 4.05 Allocation of Applied Realized Loss Amounts..................
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates..............................................
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates....................................
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates............
Section 5.04 Persons Deemed Owners........................................
Section 5.05 Access to List of Certificateholders' Names and Addresses....
Section 5.06 Maintenance of Office or Agency..............................
ARTICLE VI
THE DEPOSITOR AND THE SERVICER
Section 6.01 Respective Liabilities of the Depositor and the Servicer......
Section 6.02 Merger or Consolidation of the Depositor or the Servicer......
Section 6.03 Limitation on Liability of the Depositor, the Servicer
and Others..................................................
Section 6.04 Limitation on Resignation of the Servicer....................
Section 6.05 Additional Indemnification by the Servicer; Third Party
Claims......................................................
ARTICLE VII
DEFAULT
Section 7.01 Events of Default............................................
Section 7.02 Trustee to Act; Appointment of Successor.....................
Section 7.03 Notification to Certificateholders...........................
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of the Trustee........................................
Section 8.02 Certain Matters Affecting the Trustee........................
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans........
Section 8.04 Trustee May Own Certificates.................................
Section 8.05 Trustee's Fees and Expenses..................................
Section 8.06 Eligibility Requirements for the Trustee.....................
Section 8.07 Resignation and Removal of the Trustee.......................
Section 8.08 Successor Trustee............................................
Section 8.09 Merger or Consolidation of the Trustee.......................
Section 8.10 Appointment of Co-Trustee or Separate Trustee................
Section 8.11 Tax Matters..................................................
Section 8.12 Periodic Filings.............................................
Section 8.13 Tax Classification of the Excess Reserve Fund Account and
the Cap Agreement...........................................
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Liquidation or Purchase of the Mortgage
Loans.......................................................
Section 9.02 Final Distribution on the Certificates.......................
Section 9.03 Additional Termination Requirements..........................
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Amendment....................................................
Section 10.02 Recordation of Agreement; Counterparts.......................
Section 10.03 Governing Law................................................
Section 10.04 Intention of Parties.........................................
Section 10.05 Notices......................................................
Section 10.06 Severability of Provisions...................................
Section 10.07 Assignment; Sales; Advance Facilities........................
Section 10.08 Limitation on Rights of Certificateholders...................
Section 10.09 Inspection and Audit Rights..................................
Section 10.10 Certificates Nonassessable and Fully Paid....................
Section 10.11 Waiver of Jury Trial.........................................
SCHEDULES
Schedule I Mortgage Loan Schedule
Schedule II Representations and Warranties of Chase Manhattan Mortgage
Corporation, as Servicer
Schedule III Representations and Warranties of Accredited, as Servicer and
Responsible Party
Schedule IV Representations and Warranties of Accredited as to the Mortgage
Loans
EXHIBITS
Exhibit A-I Form of Class A, Class M and Class B Certificates
Exhibit A-II Form of Class A-IO Certificate
Exhibit B Form of Class P Certificate
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 Request for Release
Exhibit K Form of Contents for Each Mortgage File
Exhibit L Power of Attorney
Exhibit M Form of Certification to be provided with Form 10-K
Exhibit N Form of Trustee Certification to be provided to Depositor
Exhibit O Form of Servicer Certification to be provided to Depositor
Exhibit P Purchase Agreement
THIS POOLING AND SERVICING AGREEMENT, dated as of October 1, 2003,
among GS MORTGAGE SECURITIES CORP., a Delaware corporation, as depositor (the
"Depositor"), ACCREDITED HOME LENDERS, INC., a California corporation, as
servicer and responsible party ("Accredited"), CHASE MANHATTAN MORTGAGE
CORPORATION, a New Jersey corporation, as servicer ("Chase"), and XXXXX FARGO
BANK MINNESOTA, NATIONAL ASSOCIATION, a national banking association, as trustee
(the "Trustee"),
W I T N E S S E T H:
In consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
PRELIMINARY STATEMENT
The Trustee shall elect that three segregated asset pools within the
Trust Fund be treated for federal income tax purposes as comprising three REMICs
(each, a "Trust REMIC" or, in the alternative, the Pooling-Tier REMIC, the
Lower-Tier REMIC and the Upper-Tier REMIC, respectively). The Class X
Certificates and each Class of Offered Certificates (other than the right of
each Class of Offered Certificates to receive Basis Risk Carry Forward Amounts
and the right of the Class X Certificates to receive payments from the Cap
Agreement) 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 Pooling-Tier
REMIC, the Lower-Tier REMIC and the Upper-Tier REMIC for purposes of the REMIC
Provisions. The Start-up Day for each REMIC described herein is the Closing
Date. The latest possible maturity date for each Certificate is the latest date
referenced in Section 2.06. The Upper-Tier REMIC shall hold as assets the
several classes of uncertificated Lower-Tier Regular Interests, and the
Lower-Tier REMIC shall hold as assets the several classes of uncertificated
Pooling-Tier Regular Interests, each set out below. Each such Lower-Tier Regular
Interest is hereby designated as a regular interest in the Lower-Tier REMIC and
each such Pooling-Tier Regular Interest is hereby designated as a regular
interest in the Pooling-Tier REMIC. The Class LT-A-1, Class LT-A-2A, Class
LT-A-2B, Class LT-A-IO, Class LT-M1, Class LT-M2, 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 Offered Certificate represents a
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 and
the Excess Reserve Fund Account and the Cap Agreement, which portions of the
Trust Fund shall be treated as a grantor trust.
POOLING-TIER REMIC
------------------
POOLING-TIER POOLING-TIER INITIAL POOLING-TIER
CLASS DESIGNATION INTEREST RATE PRINCIPAL AMOUNT
------------------- ------------- --------------------
Class PT-IA (1) $ 152,100,788.00
Class PT-IB1 (1) $ 6,997,000.00
Class PT- IB2 (1) $ 27,989,000.00
Class PT-IB3 (1) $ 27,989,000.00
Class PT-IIA (2) $ 65,346,758.00
Class PT-II-B1 (2) $ 3,003,000.00
Class PT-IIB2 (2) $ 12,011,000.00
Class PT-IIB3 (2) $ 12,011,000.00
Class PT-R (3) (3)
(1) The interest rate with respect to any Distribution Date for these
interests is a per annum variable rate equal to the Class A-IO(1) Net WAC
Cap.
(2) The interest rate with respect to any Distribution Date for these
interests is a per annum variable rate equal to the Class A-IO(2) Net WAC
Cap.
(3) The Class PT-R Interest is the sole Class of residual interest in the
Pooling-Tier REMIC and it does not have a principal amount or an interest
rate.
The Pooling-Tier REMIC shall hold as assets all of the assets
included in the Trust Fund other than Prepayment Premiums, the Cap Agreement,
the Excess Reserve Fund Account, the Pooling-Tier Regular Interests, the
Lower-Tier Regular Interests and the Upper-Tier Regular Interests.
On each Distribution Date, the Class PT-IA, Class PT-IB1, Class
PT-IB2 and Class PT-IB3 Interests shall receive distributions of interest and
principal equal in the aggregate to amounts distributable in respect of the
Group I Mortgage Loans pursuant to Section 4.02 (other than to the Class R
Certificates in respect of the Class PT-R Interest) from amounts on deposit in
the Distribution Account. On each Distribution Date, the Class PT-IIA, Class
PT-IIB1, Class PT-IIB2 and Class PT-IIB3 Interests shall receive distributions
of interest and principal equal in the aggregate to amounts distributable in
respect of the Group II Mortgage Loans pursuant to Section 4.02 (other than to
the Class R Certificates in respect of the Class PT-R Interest) from amounts on
deposit in the Distribution Account. Such amounts with respect to interest shall
accrue at the related Pooling-Tier Interest Rate specified above. Any shortfalls
of interest on the Group I Mortgage Loans shall be allocated, pro rata, to the
Class PT-IA Interest, Class PT-IB1 Interest, Class PT-IB2 Interest and Class
PT-IB3 Interest. Any shortfalls of interest on the Group II Mortgage Loans will
be allocated, pro rata, to the Class PT-IIA Interest, Class PT-IIB1 Interest,
Class PT-IIB2 Interest, and Class PT-IIB3 Interest.
Amounts in reduction of the principal balance of the Pooling-Tier
Regular Interests in respect of the Group I Mortgage Loans shall be allocated
first, to the Class PT-IA Interest until its principal balance is reduced to
zero, second, to the Class PT-IB1 Interest, third, to the Class PT-IB2 Interest,
and fourth, to the Class PT-IB3 Interest. Amounts in reduction of the principal
balance of the Pooling-Tier Regular Interests in respect of the Group II
Mortgage Loans shall be allocated first, to the Class PT-IIA Interest until its
principal balance is reduced to zero, second, to the Class PT-IIB1 Interest,
third, to the Class PT-IIB2 Interest, and fourth, to the Class PT-IIB3 Interest.
Realized Losses shall be allocated in the same manner as amounts in reduction of
principal balance. Such amounts with respect to principal and any Realized
Losses with respect to principal shall reduce the principal balances of the
Pooling-Tier Regular Interests so that, in the aggregate, such balances
correspond to the Pool Stated Principal Balance of the Mortgage Loans in the
related group as of the last day of the related Due Period. Any amounts
remaining in Pooling-Tier REMIC on a Distribution Date shall be distributed to
the Class R Certificates in respect of the Class PT-R Interest.
LOWER-TIER REMIC
----------------
LOWER-TIER CORRESPONDING
LOWER-TIER INTEREST INITIAL LOWER-TIER UPPER-TIER
CLASS DESIGNATION RATE PRINCIPAL AMOUNT REMIC CLASS
----------------- ---------- ------------------------- -------------
Class LT-A-1 (1) 1/2 initial Corresponding A-1
Upper-Tier REMIC initial
principal balance
Class LT-A-2A (1) 1/2 initial Corresponding A-2A
Upper-Tier REMIC initial
principal balance
Class LT-A-2B (1) 1/2 initial Corresponding A-2B
Upper-Tier REMIC initial
principal balance
Class LT-M-1 (1) 1/2 initial Corresponding M-1
Upper-Tier REMIC initial
principal balance
Class LT-M-2 (1) 1/2 initial Corresponding M-2
Upper-Tier REMIC initial
principal balance
Class LT-B-1 (1) 1/2 initial Corresponding B-1
Upper-Tier REMIC initial
principal balance
Class LT-B-2 (1) 1/2 initial Corresponding B-2
Upper-Tier REMIC initial
principal balance
Class LT-Accrual (1) 1/2 Pool Stated Principal
Balance plus 1/2
Overcollateralized
Amount, less $2,000
Class LT-Group I (2) $ 1,399.11(4) N/A
Class LT-Group II (3) $ 600.89(4) N/A
Class LT-A-IO (5) (6) A-IO
Class LT-R (7) (7)
(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) On the Closing Date, the Initial Lower-Tier Principal Amount of the Class
LT-Group I Interest shall be $1,399.10557620 and the Initial Lower-Tier
Principal Amount of the Class LT-Group II Interest shall be $600.89442379
For all future Distribution Dates, the principal balances of these
Lower-Tier Regular Interests shall be rounded to eight decimal places.
(5) Notional Amount.
(6) The interest rate with respect to any Distribution Date for Class LT-A-IO
Interest is a per annum variable rate equal to the Class A-IO Pass-Through
Rate.
(7) 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 the Pooling-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 principal balance of its Corresponding
Class) and will be accrued and added to the principal balance of the Class
LT-Accrual Interest. On each Distribution Date, the increase in the principal
balance 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 (i) 50% to the Class LT-Accrual Interest, the
Class LT-Group I Interest and the Class LT-Group II Interest (and further
allocated among these Lower-Tier Regular Interests in the manner described
below), and (ii) 50% to the LT-Accretion Directed Classes (principal payments
shall be allocated among such LT-Accretion Directed Classes in an amount equal
to 50% of the principal amounts allocated to their respective Corresponding
Classes), until paid in full. Notwithstanding the above, principal payments
allocated to the Class X Interest that result in the reduction in the
Overcollateralized Amount shall be allocated to the Class LT-Accrual Interest
(until paid in full). Realized Losses shall be applied so that after all
distributions have been made on each Distribution Date (i) the principal balance
of each of the LT-Accretion Directed Classes is equal to 50% of the principal
balance of their Corresponding Class, and (ii) the Class LT-Accrual Interest,
the Class LT-Group I Interest and the Class LT-Group II Interest (and further
allocated among these Lower-Tier Regular Interests in the manner described
below) is equal to 50% of the aggregate Stated Principal Balance of the Mortgage
Loans plus 50% of the Overcollateralized Amount. As among the Class LT-Accrual
Interest, the Class LT-Group I Interest and the Class LT-Group II Interest, all
payments of scheduled principal and prepayments of principal generated by the
Mortgage Loans, and all Realized Losses, allocable to such Lower-Tier Regular
Interests shall be allocated (i) to the Class LT-Accrual Interest in the same
proportion that the then outstanding principal balance of such Lower-Tier
Regular Interest bears to the then outstanding aggregate principal balance of
the Class LT-Accrual Interest, the Class LT-Group I Interest and the Class
LT-Group II Interest and (ii) the remainder to each of the Class LT-Group I
Interest and the Class LT-Group II Interest in the same proportion that the then
outstanding aggregate Stated Principal Balance of the Mortgage Loans in the
related Loan Group bears to the then outstanding aggregate Stated Principal
Balance of the Mortgage Loans.
UPPER-TIER REMIC
----------------
The Upper-Tier REMIC shall issue the following classes of Upper-Tier
Regular Interests, and each such interest, other than the Class UT-R Interest,
is hereby designated as a regular interest in the Upper-Tier REMIC.
UPPER-TIER INITIAL UPPER-TIER
INTEREST RATE PRINCIPAL AMOUNT
AND AND CORRESPONDING
CORRESPONDING CLASS CERTIFICATE CORRESPONDING
UPPER-TIER CLASS PASS-THROUGH BALANCE OR CLASS OF
CLASS DESIGNATION RATE NOTIONAL AMOUNT CERTIFICATES
-------------------- ------------------ ------------------ ---------------
Class A-1 (1) $ 179,587,000 Class A-1A(9)
Class A-2A (2) $ 57,465,000 Class A-2A(9)
Class A-2B (3) $ 19,666,000 Class A-2B(9)
Class A-IO (4) $ 90,000,000(5) Class A-IO(9)
Class M-1 (6) $ 17,678,000 Class M-1(9)
Class M-2 (6) $ 13,836,000 Class M-2(9)
Class B-1 (6) $ 8,454,000 Class B-1(9)
Class B-2 (6) $ 3,843,000 Class B-2(9)
Class X (7) 0(6) Class X(7)
Class UT-R (8) 0 Class R
(1) The Class A-1 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the Optional
Termination Date, the least of (i) LIBOR plus 0.340%, (ii) the Loan Group
I Cap and (iii) the WAC Cap or (b) after the Optional Termination Date,
the least of (i) LIBOR plus 0.680%, (ii) the Loan Group I Cap and (iii)
the WAC Cap.
(2) The Class A-2A 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 0.200%, (ii) the Loan Group
II Cap and (iii) the WAC Cap or (b) after the Optional Termination Date,
the least of (i) LIBOR plus 0.400%, (ii) the Loan Group II Cap and (iii)
the WAC Cap.
(3) The Class A-2B 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 0.620%, (ii) the Loan Group
II Cap and (iii) the WAC Cap or (b) after the Optional Termination Date,
the least of (i) LIBOR plus 0.400%, (ii) the Loan Group II Cap and (iii)
the WAC Cap.
(4) The Class A-IO Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to the Class A-IO Pass-Through Rate.
(5) Notional Amount.
(6) The Class M-1, Class M-2, Class B-1 and Class B-2 Interests will bear
interest during each Interest Accrual Period at a per annum rate equal to
(a) on or prior to the Optional Termination Date, the least of (i) LIBOR
plus 0.700%, 1.700%, 4.000%, and 4.250%, respectively, and (ii) the WAC
Cap or (b) after the Optional Termination Date, the lesser of (i) LIBOR
plus 1.050%, 2.550%, 6.000%, and 6.375%, respectively, and (ii) the WAC
Cap.
(7) The Class X Interest has an initial principal balance of $6,918,546, 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 (other than the
Class LT-A-IO Interest) as of the first day of the related Interest
Accrual Period. With respect to any Interest Accrual Period, the Class X
Interest shall bear interest at a rate equal to the excess, if any, of the
WAC Cap over the product of (i) 2 and (ii) the weighted average
Pass-Through Rate of the Lower-Tier REMIC Interests (other than the Class
LT-A-IO Interest), where the interest rate on each of the Class LT-Accrual
Interest, Class LT-Group I Interest and Class LT-Group II Interest 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 Agreement and amounts in the Excess Reserve
Fund Account, subject to the obligation to make payments from the Excess
Reserve Fund Account in respect of Basis Risk Carry Forward Amounts. For
federal income tax purposes, the Trustee will treat a Class X
Certificateholder's obligation to make payments from the Excess Reserve
Fund Account as payments made pursuant to an interest rate cap contract
written by the Class X Certificateholders in favor of each Class of
Offered Certificates. Such rights of the Class X Certificateholders and
Offered Certificateholders shall be treated as held in a portion of the
Trust Fund that is treated as a grantor trust under subpart E, Part I of
subchapter J of the Code.
(8) The Class UT-R Interest is the sole Class of residual interest in the
Upper-Tier REMIC. The Class UT-R Interest does not have an interest rate.
(9) Each of these Certificates will represent not only the ownership of the
Corresponding Class of Upper-Tier Regular Interest but also the right to
receive payments from the Excess Reserve Fund Account in respect of any
Basis Risk Carry Forward Amounts.
For federal income tax purposes, the Trustee will treat a LIBOR
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. Such rights of the Offered Certificateholders
shall be treated as held in a portion of the Trust Fund that is treated as a
grantor trust under subpart E, Part I of subchapter J of the Code.
The minimum denomination for each Class of the LIBOR Certificates
will be $50,000, with integral multiples of $1 in excess thereof except that one
Certificate in each Class may be issued in a different amount. The minimum
denomination for the Class A-IO Certificates will be $50,000 notional amount,
with integral multiples of $1,000 notional amount in excess thereof except that
one Class A-IO Certificate may be issued in a different amount. The minimum
denomination for (a) each of the Class P and Class R Certificates will be 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......... Class A-1, Class A-2A, Class A-2B, and Class A-IO
Certificates.
Class A LIBOR Certificates... Class A-1, Class A-2A and Class A-2B Certificates.
Delay Certificates........... None.
ERISA-Restricted
Certificates............... Class R Certificates, Class P Certificates and
Class X Certificates; any certificate with a
rating below the lowest applicable permitted
rating under the Underwriters' Exemption.
Non-Delay Certificates....... Class A, Class X and Subordinated Certificates.
LIBOR Certificates........... All Classes of Offered Certificates other than the
Class A-IO Certificates.
Offered Certificates......... All Classes of Certificates other than the Private
Certificates.
Physical Certificates........ Class X, Class P and Class R Certificates.
Private Certificates......... Class X, Class P and Class R Certificates.
Rating Agencies.............. Fitch and Standard & Poor's.
Regular Certificates......... All Classes of Certificates other than the Class P
and 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. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
Accepted Servicing Practices: The servicing and administration
of such Mortgage Loan (i) in the same manner in which, and with the same care,
skill, prudence and diligence with which Chase generally services and
administers similar mortgage loans with similar mortgagors (A) for other third
parties, giving due consideration to customary and usual standards of practice
of prudent institutional residential mortgage lenders servicing their own
mortgage loans or (B) held in Chase's own portfolio, whichever standard is
higher, and (ii) in accordance with applicable local, state and federal laws,
rules and regulations.
Account: Any of the Collection Account, the Distribution
Account, any Escrow Account or the Excess Reserve Fund Account. Each Account
shall be an Eligible Account.
Accredited: Accredited Home Lenders, Inc., a California
corporation, and its successors in interest.
Accrued Certificate Interest Distribution Amount: With respect
to any Distribution Date for each Class of the Offered Certificates, the amount
of interest accrued during the related Interest Accrual Period at the applicable
Pass-Through Rate on the related Class Certificate Balance (or in the case of
the Class A-IO Certificates, the Class A-IO Notional Amount) 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.
Adjustable Rate Mortgage Loan: An adjustable rate Mortgage
Loan purchased pursuant to the Purchase Agreement.
Adjusted Net Mortgage Interest Rate: As to each Mortgage Loan
and at any time, the per annum rate equal to the Mortgage Interest Rate less the
Expense Fee Rate.
Adjustment Date: As to any Mortgage Loan, the first Due Date
on which the related Mortgage Interest Rate adjusts as set forth in the related
Mortgage Note and each Due Date thereafter on which the Mortgage Interest Rate
adjusts as set forth in the related Mortgage Note.
Advance: Any P&I Advance or Servicing Advance.
Advance Facility: A financing or other facility as described
in Section 10.07.
Advancing Person: The Person to whom the Servicer's rights
under this Agreement to be reimbursed for any P&I Advances or Servicing Advances
have been assigned pursuant to Section 10.07.
Affiliate: With respect to any Person, any other Person
controlling, controlled by or under common control with such first Person. For
the purposes of this definition, "control" means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
Agreement: This Pooling and Servicing Agreement and all
amendments or supplements hereto.
Amount Held for Future Distribution: As to the Certificates on
any Distribution Date, the aggregate amount held in the Collection Account at
the close of business on the related Remittance Date on account of (i) Principal
Prepayments, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds
on the Mortgage Loans received after the end of the related Prepayment Period
and (ii) all Scheduled Payments on the Mortgage Loans due after the end of the
related Due Period.
Applied Realized Loss Amount: With respect to any Distribution
Date, the amount, if any, by which the aggregate Class Certificate Balance of
the LIBOR Certificates after distributions of principal on such Distribution
Date exceeds the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date.
Appraised Value: With respect to any Mortgage Loan, the value
of the related Mortgaged Property based upon the appraisal made for the
originator at the time of origination of such Mortgage Loan or the sales price
of such Mortgaged Property at such time of origination, whichever is less;
provided, however, that in the case of a refinanced Mortgage Loan, such value is
based solely upon the appraisal made at the time of origination of such
refinanced Mortgage Loan.
Assignment of Mortgage: An assignment of the Mortgage, notice
of transfer or equivalent instrument in recordable form (other than the
assignee's name and recording information not yet returned from the recording
office), reflecting the sale of the Mortgage to the Trustee.
Available Funds: With respect to any Distribution Date and the
Mortgage Loans to the extent received by the Trustee (x) the sum of (i) all
scheduled installments of interest (net of the related Expense Fees) and
principal due on the Due Date on such Mortgage Loans in the related Due Period
and received on or prior to the related Determination Date, together with any
P&I Advances in respect thereof; (ii) all Condemnation Proceeds, Insurance
Proceeds and Liquidation Proceeds during the related Prepayment Period (in each
case, net of unreimbursed expenses incurred in connection with a liquidation or
foreclosure and unreimbursed Advances, if any); (iii) all partial or full
prepayments on the Mortgage Loans received during the related Prepayment Period
together with all Compensating Interest thereon (excluding Prepayment Premiums);
and (iv) amounts received with respect to such Distribution Date as the
Substitution Adjustment Amount or purchase price in respect of a Deleted
Mortgage Loan or a Mortgage Loan repurchased by the Responsible Party or the
Depositor as of such Distribution Date; reduced by (y) amounts in reimbursement
for P&I Advances and Servicing Advances previously made with respect to the
Mortgage Loans and other amounts as to which the Servicer, the Depositor or the
Trustee (or co-trustee) are entitled to be paid or reimbursed pursuant to this
Agreement.
Balloon Loan: Any Mortgage Loan that provided on the date of
origination for an amortization schedule extending beyond its stated maturity
date.
Basic Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the Principal Remittance Amount for such
Distribution Date over (ii) the Excess Overcollateralized Amount, if any, for
such Distribution Date.
Basis Risk Carry Forward Amount: With respect to each Class of
LIBOR Certificates, as of any Distribution Date, the sum of (A) if on such
Distribution Date the Pass-Through Rate for any Class of LIBOR Certificates is
based upon a Loan Group Cap or the WAC Cap, the excess of (i) the amount of
interest such Class of Certificates would otherwise be entitled to receive on
such Distribution Date had such rate been calculated as the sum of LIBOR and the
applicable Pass-Through Margin on such Class of Certificates for such
Distribution Date, over (ii) the amount of interest payable on such Class of
Certificates at (a) with respect to the Class A-1 Certificates, the lesser of
(y) the Loan Group I Cap or (z) the WAC Cap, (b) with respect to the Class A-2A
and Class A-2B Certificates, the lesser of (y) the Loan Group II Cap or (z) the
WAC Cap and (c) with respect to each other Class of LIBOR Certificates, the WAC
Cap, as applicable, and (B) the Basis Risk Carry Forward Amount for such Class
of Certificates for all previous Distribution Dates not previously paid,
together with interest thereon at a rate equal to, the sum of LIBOR and the
applicable Pass-Through Margin for such Class of Certificates for such
Distribution Date. The Basis Risk Carry Forward Amount for the Class A-IO
Certificates is equal to the Class A-IO Basis Risk Carry Forward Amount.
Basis Risk Payment: For any Distribution Date, an amount equal
to the aggregate of the Basis Risk Carry Forward Amounts for such Distribution
Date; provided, however, that with respect to any Distribution Date, the Basis
Risk Payment shall not exceed the Class X Distributable Amount.
Best's: Best's Key Rating Guide, as the same shall be amended
from time to time.
Book-Entry Certificates: As specified in the Preliminary
Statement.
BPO: A broker's price opinion.
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, New Jersey, Florida, Maryland, Arizona, Minnesota and California,
(b) the State in which the Servicer's servicing operations are located, or (c)
the State in which the Trustee's operations are located, are authorized or
obligated by law or executive order to be closed.
Cap Agreement: The interest rate cap agreement, dated as of
October 21, 2003, between the Purchaser and the Cap Provider.
Cap Provider: Xxxxxxx Xxxxx Capital Markets L.P., a Delaware
limited partnership, and its successors in interest.
Certificate: Any one of the Certificates executed by the
Trustee in substantially the forms attached hereto as exhibits.
Certificate Balance: With respect to any Class of
Certificates, other than the Class A-IO, Class X, Class P or Class R
Certificates, at any date, the maximum dollar amount of principal to which the
Holder thereof is then entitled hereunder, such amount being equal to the
Denomination thereof minus all distributions of principal previously made with
respect thereto and in the case of any Subordinated Certificates, reduced by any
Applied Realized Loss Amounts applicable to such Class of Subordinated
Certificates. 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 Trustee is
entitled to rely conclusively on a certification of the Depositor or any
affiliate of the Depositor in determining which Certificates are registered in
the name of an affiliate of the Depositor.
Certification: As defined in Section 8.12(b).
Chase: Chase Manhattan Mortgage Corporation, a New Jersey
corporation, and its successors in interest.
Class: All Certificates bearing the same Class designation as
set forth in the Preliminary Statement.
Class A Certificate Group: Either the Class A-1 Certificates
or the Class A-2 Certificate Group, as applicable.
Class A Certificates: As specified in the Preliminary
Statement.
Class A LIBOR Certificates: As specified in the Preliminary
Statement.
Class A Principal Allocation Percentage: For any Distribution
Date is the percentage equivalent of a fraction, determined as follows: (A) with
respect to the Class A-1 Certificates, the numerator of which is the portion of
the Principal Remittance Amount for that 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 that Distribution
Date; and (B) with respect to the Class A-2 Certificate Group, the numerator of
which is the portion of the Principal Remittance Amount for that 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 that 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 LIBOR Certificates immediately prior to such Distribution Date over
(ii) the lesser of (A) 67.00% (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 Certificates: All Certificates bearing the Class
designation of "Class A-1 Certificates."
Class A-2 Certificate Group: The Class A-2A Certificates and
the class A-2B Certificates, collectively.
Class A-2A Certificates: All Certificates bearing the Class
designation of "Class A-2A Certificates."
Class A-2B Certificates: All Certificates bearing the Class
designation of "Class A-2B Certificates."
Class A-IO Basis Risk Carry Forward Amount: With respect to
any Distribution Date, the sum of (i) the Class A-IO(1) Component Basis Risk
Carry Forward Amount, and (ii) the Class A-IO(2) Component Basis Risk Carry
Forward Amount.
Class A-IO Certificates: All Certificates bearing the Class
designation of "Class A-IO Certificates."
Class A-IO Notional Amount: With respect to any Distribution
Date in or prior to April 2005, the sum of (i) the Class A-IO(1) Component
Notional Amount, and (ii) the Class A-IO(2) Component Notional Amount. On each
Distribution Date following the Distribution Date in April 2005, the Class A-IO
Notional Amount will equal $0.
Class A-IO Pass-Through Rate: With respect to any Distribution
Date, the sum of (i) the product of (x) the Class A-IO(1) Component Notional
Amount for the related Interest Accrual Period and (y) the Class A-IO(1)
Pass-Through Rate, and (ii) the product of (x) the Class A-IO(2) Component
Notional Amount for the related Interest Accrual Period and (y) the Class
A-IO(2) Pass-Through Rate, divided by the Class A-IO Notional Amount for the
related Interest Accrual Period.
Class A-IO(1) Component: The portion of the Class A-IO
Certificates related to the Group I Mortgage Loans, bearing interest at the
Class A-IO(1) Pass-Through Rate on the Class A-IO(1) Notional Amount.
Class A-IO(1) Component Basis Risk Carry Forward Amount: With
respect to any Distribution Date, the sum of (i) the excess, if any, of the
interest that would be payable on the Class A-IO Certificates relating to the
Class A-IO(1) Component at the Class A-IO(1) Pass-Through Rate (without regard
to the Class A-IO(1) Net WAC Cap) over interest payable on the Class A-IO
Certificates relating to the Class A-IO(1) Component at a rate equal to the
Class A-IO(1) Net WAC Cap, (ii) any Class A-IO(1) Basis Risk Carry Forward
Amount remaining unpaid from prior Distribution Dates, and (iii) interest on the
amount in clause (ii) at the Class A-IO(1) Pass-Through Rate (without regard to
the Class A-IO(1) Net WAC Cap).
Class A-IO(1) Component Notional Amount: With respect to any
Distribution Date, the lesser of (i) the Class A-IO(1) Scheduled Notional
Amount, and (ii) the aggregate Stated Principal Balance of the Group I Mortgage
Loans at the beginning of the related Due Period.
Class A-IO(1) Net WAC Cap: With respect to any Distribution
Date, a per annum rate equal to the weighted average Adjusted Net Mortgage
Interest Rates of the Group I Mortgage Loans in effect on the beginning of the
related Due Period.
Class A-IO(1) Pass-Through Rate: With respect to any
Distribution Date in or prior to April 2005, a per annum rate equal to the
lesser of (i) 5.500% and (ii) the Class A-IO(1) Net WAC Cap and with respect to
any Distribution Date thereafter, 0%.
Class A-IO(1) Scheduled Notional Amount: With respect to any
Distribution Date, the amount set forth in the following schedule:
A-IO(1)
Scheduled
Distribution Dates Notional Amount
-----------------------------------------------------
November 2003 through April 2004 $62,975,000
May 2004 through October 2004 $55,978,000
November 2004 through April 2005 $27,989,000
May 2005 and thereafter $0
Class A-IO(2) Component: The portion of the Class A-IO
Certificates related to the Group II Mortgage Loans, bearing interest at the
Class A-IO(2) Pass-Through Rate on the Class A-IO(2) Notional Amount.
Class A-IO(2) Component Basis Risk Carry Forward Amount: With
respect to any Distribution Date, the sum of: (i) the excess, if any, of the
interest that would be otherwise payable on the Class A-IO Certificates relating
to the Class A-IO(2) Component at the Class A-IO(2) Pass-Through Rate (without
regard to the Class A-IO(2) Net WAC Cap) over interest payable on the Class A-IO
Certificates relating to the Class A-IO(2) Component at a rate equal to the
Class A-IO(2) Net WAC Cap; (ii) any Class A-IO(2) Basis Risk Carry Forward
Amount remaining unpaid from prior Distribution Dates, and (iii) interest on the
amount in clause (ii) at the Class A-IO(2) Pass-Through Rate (without regard to
the Class A-IO(2) Net WAC Cap).
Class A-IO(2) Component Notional Amount: With respect to any
Distribution Date, the lesser of (i) the Class A-IO(2) Scheduled Notional
Amount, and (ii) the aggregate Stated Principal Balance of the Group II Mortgage
Loans at the beginning of the related Due Period.
Class A-IO(2) Net WAC Cap: With respect to any Distribution
Date, a per annum rate equal to the weighted average Adjusted Net Mortgage
Interest Rates of the Group II Mortgage Loans in effect on the beginning of the
related Due Period.
Class A-IO(2) Pass-Through Rate: With respect to any
Distribution Date in or prior to April 2005, a per annum rate equal to the
lesser of (i) 5.500% and (ii) the Class A-IO(2) Net WAC Cap and with respect to
any Distribution Date thereafter, 0%.
Class A-IO(2) Scheduled Notional Amount: With respect to any
Distribution Date, the amount set forth in the following schedule:
A-IO(2)
Scheduled
Distribution Dates Notional Amount
------------------------------------------------------
November 2003 through April 2004 $27,025,000
May 2004 through October 2004 $24,022,000
November 2004 through April 2004 $12,011,000
May 2005 and thereafter $ 0
Class B-1 Certificates: All Certificates bearing the Class
designation of "Class B-1 Certificates."
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 LIBOR 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) 93.00% (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 B-2 Certificates: All Certificates bearing the Class
designation of "Class B-2 Certificates."
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 LIBOR 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) 95.50% (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 Certificates."
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 LIBOR 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) 78.50% (rounded to two decimal places) of the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date and (B) the excess, if
any, of the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date over the Overcollateralization Floor.
Class M-2 Certificates: All Certificates bearing the Class
designation of "Class M-2 Certificates."
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 LIBOR 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) 87.50% (rounded to two decimal
places) of the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date and (B) the excess, if any, of the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class P Certificates: All Certificates bearing the Class
designation of "Class P Certificates."
Class PT-R Interest: The residual interest in the Pooling-Tier
REMIC as described in the Preliminary Statement and the related footnote
thereto.
Class R Certificates: All Certificates bearing the Class
designation of "Class R Certificates."
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 Certificates."
Class X Distributable Amount: On any Distribution Date, (i) as
a distribution in respect to 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 (ii) as a distribution in
respect of principal, any portion of the principal balance of the Class X
Interest which is distributable as an Overcollateralization Reduction Amount,
minus (iii) any amounts paid as a Basis Risk Payment.
Class X Interest: The Upper-Tier Regular Interest represented
by the Class X Certificates as specified and described in the Preliminary
Statement and the related footnote thereto.
Closing Date: October 30, 2003.
Code: The Internal Revenue Code of 1986, including any
successor or amendatory provisions.
Collection Account: As defined in Section 3.10(a).
Compensating Interest: For any Distribution Date, the lesser
of (a) the Prepayment Interest Shortfall, if any, for such Distribution Date,
with respect to voluntary Principal Prepayments in full by the Mortgagor
(excluding any payments made upon liquidation of the Mortgage Loan), and (b) the
amount of the Servicing Fee payable to the Servicer for such Distribution Date.
Condemnation Proceeds: All awards, compensation and/or
settlements in respect of a Mortgaged Property, whether permanent or temporary,
partial or entire, by exercise of the power of eminent domain or condemnation.
Corporate Trust Office: The designated office of the Trustee
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 (i) for certificate transfer purposes, Xxxxx Xxxxxx
xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust
Services- GSAMP 2003-AHL and (ii) for all other purposes, 0000 Xxx Xxxxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxx 00000 Attn: Client Manager-GSAMP 2003-AHL, facsimile
no. (000) 000-0000 and which is the address to which notices to and
correspondence with the Trustee should be directed.
Corresponding Class: The Class of interests in one Trust REMIC
created under this Agreement that corresponds to the Class of interests in the
other Trust REMIC or to a Class of Certificates in the manner set out below:
LOWER-TIER UPPER-TIER CORRESPONDING
CLASS DESIGNATION REGULAR INTEREST CLASS OF CERTIFICATES
----------------- ---------------- ---------------------
Class LT-A-1A Class A-1A Class A-1A
Class LT-A-2A Class A-2A Class A-2A
Class LT-A-2B Class A-2B Class A-2B
Class LT-A-IO Class A-IO Class A-IO
Class LT-M-1 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
N/A Class X Class X
Custodial File: With respect to each Mortgage Loan, the file
retained by the Trustee consisting of items (a) - (h) as listed on Exhibit K
hereto.
Cut-off Date: October 1, 2003.
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).
Data Tape Information: The information provided by the
Responsible Party as of the Cut-off Date to the Depositor setting forth the
following information with respect to each Mortgage Loan: (1) the Responsible
Party's Mortgage Loan identifying number; (2) the Mortgagor's name; (3) the
street address of the Mortgaged Property including the city, state and zip code;
(4) a code indicating whether the Mortgaged Property is owner-occupied, a second
home or investment property; (5) the number and type of residential units
constituting the Mortgaged Property (i.e., a single family residence, a 2-4
family residence, a unit in a condominium project or a unit in a planned unit
development, manufactured housing); (6) the original months to maturity or the
remaining months to maturity from the Cut-off Date, in any case based on the
original amortization schedule and, if different, the maturity expressed in the
same manner but based on the actual amortization schedule; (7) the Loan-to-Value
Ratio at origination; (8) the Mortgage Interest Rate as of the Cut-off Date; (9)
the date on which the Scheduled Payment was due on the Mortgage Loan and, if
such date is not consistent with the Due Date currently in effect, such Due
Date; (10) the stated maturity date; (11) the amount of the Scheduled Payment as
of the Cut-off Date; (12) the last payment date on which a Scheduled Payment was
actually applied to pay interest and the outstanding principal balance; (13) the
original principal amount of the Mortgage Loan; (14) the principal balance of
the Mortgage Loan as of the close of business on the Cut-off Date, after
deduction of payments of principal due and collected on or before the Cut-off
Date; (15) with respect to Adjustable Rate Mortgage Loans, the Adjustment Date;
(16) with respect to Adjustable Rate Mortgage Loans, the Gross Margin; (17) with
respect to Adjustable Rate Mortgage Loans, the Lifetime Rate Cap under the terms
of the Mortgage Note; (18) with respect to Adjustable Rate Mortgage Loans, a
code indicating the type of Index; (19) with respect to Adjustable Rate Mortgage
Loans, the Periodic Mortgage Interest Rate Cap under the terms of the Mortgage
Note; (20) the type of Mortgage Loan (i.e., fixed rate, adjustable rate, first
lien); (21) a code indicating the purpose of the loan (i.e., purchase, rate and
term refinance, equity take-out refinance); (22) a code indicating the
documentation style (i.e., full documentation, limited documentation or stated
income); (23) the loan credit classification (as described in the Underwriting
Guidelines); (24) whether such Mortgage Loan provides for a Prepayment Premium;
(25) the Prepayment Premium period of such Mortgage Loan, if applicable; (26) a
description of the Prepayment Premium, if applicable; (27) the Mortgage Interest
Rate as of origination; (28) the credit risk score (FICO score) at origination;
(29) the date of origination; (30) the Mortgage Interest Rate adjustment period;
(31)the Mortgage Interest Rate floor; (32) the Mortgage Interest Rate
calculation method (i.e., 30/360, simple interest, other); (33) a code
indicating whether the Mortgage Loan is a High Cost Mortgage Loan; (34) a code
indicating whether the Mortgage Loan has been modified; (35) the current
Loan-to-Value Ratio; (36) the one year payment history; (37) the Due Date for
the first Scheduled Payment; (38) the original Scheduled Payment due; (39) with
respect to the related Mortgagor, the debt-to-income ratio; (40) the Appraised
Value of the Mortgaged Property; (41) the sales price of the Mortgaged Property
if the Mortgage Loan was originated in connection with the purchase of the
Mortgaged Property; (42) the MERS identification number; and (43) a code
indicating if a Mortgage Loan is or has had a 30 Day Delinquency. With respect
to the Mortgage Loans in the aggregate: (1) the number of Mortgage Loans; (2)
the current aggregate outstanding principal balance of the Mortgage Loans; (3)
the weighted average Mortgage Interest Rate of the Mortgage Loans; and (4) the
weighted average maturity of the Mortgage Loans.
Debt Service Reduction: With respect to any Mortgage Loan, a
reduction by a court of competent jurisdiction in a proceeding under the United
States Bankruptcy Code in the Scheduled Payment for such Mortgage Loan which
became final and non-appealable, except for such a reduction resulting from a
Deficient Valuation or any reduction that results in a permanent forgiveness of
principal.
Deficient Valuation: With respect to any Mortgage Loan, a
valuation of the related Mortgaged Property by a court of competent jurisdiction
in an amount less than the then outstanding principal balance of the Mortgage
Loan, which valuation results from a proceeding initiated under the United
States Bankruptcy Code.
Definitive Certificates: Any Certificate evidenced by a
Physical Certificate and any Certificate issued in lieu of a Book-Entry
Certificate pursuant to Section 5.02(e).
Delay Certificates: As specified in the Preliminary Statement.
Deleted Mortgage Loan: As defined in Section 2.03(d).
Denomination: With respect to each Certificate, the amount set
forth on the face thereof as the "Initial Certificate Balance of this
Certificate" or the Percentage Interest appearing on the face thereof.
Depositor: GS Mortgage Securities Corp., a Delaware
corporation, and its successors in interest.
Depository: The initial Depository shall be The Depository
Trust Company, the nominee of which is CEDE & Co., as the registered Holder
of the Book-Entry Certificates. The Depository shall at all times be a
"clearing corporation" as defined in Section 8-102(a)(5) of the Uniform
Commercial Code of the State of New York.
Depository Institution: Any depository institution or trust
company, including the Trustee, that (a) is incorporated under the laws of the
United States of America or any State thereof, (b) is subject to supervision and
examination by federal or state banking authorities and (c) has outstanding
unsecured commercial paper or other short-term unsecured debt obligations that
are rated P-1 by Moody's, F1 by Fitch 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: With respect to each Distribution Date,
the 18th of the calendar month in which such Distribution Date occurs or, if
such day is not a Business Day, the immediately preceding Business Day.
Distribution Account: The separate Eligible Account created
and maintained by the Trustee pursuant to Section 3.27(b) in the name of the
Trustee for the benefit of the Certificateholders and designated "Xxxxx Fargo
Bank Minnesota, National Association in trust for registered holders of GSAMP
Trust 2003-AHL Mortgage Pass-Through Certificates, Series 2003-AHL." Funds in
the Distribution Account shall be held in trust for the Certificateholders for
the uses and purposes set forth in this Agreement and may be invested in
Permitted Investments.
Distribution Date: The 25th day of each calendar month after
the initial issuance of the Certificates, or if such day is not a Business Day,
the next succeeding Business Day, commencing in November 2003.
Document Certification and Exception Report: The report
attached to Exhibit F hereto.
Due Date: The day of the month on which the Scheduled Payment
is due on a Mortgage Loan, exclusive of any days of grace.
Due Period: With respect to any Distribution Date, the period
commencing on the second day of the calendar month preceding the month in which
the Distribution Date occurs and ending on the first day of the calendar month
in which the Distribution Date occurs.
Eligible Account: Either (i) an account maintained with a
federal or state chartered depository institution or trust company the
short-term unsecured debt obligations of which (or, in the case of a depository
institution or trust company that is a subsidiary of a holding company, the
short-term unsecured debt obligations of such holding company) are rated A-1 by
Standard & Poor's, F1 by Fitch and P-1 by Moody's (and a comparable rating if
another Rating Agency is specified by the Depositor by written notice to the
Servicer) at the time any amounts are held on deposit therein, (ii) a trust
account or accounts maintained with a federal or state chartered depository
institution or trust company acting in its fiduciary capacity or (iii) any other
account acceptable to each Rating Agency. Eligible Accounts may bear interest,
and may include, if otherwise qualified under this definition, accounts
maintained with the Trustee.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA-Qualifying Underwriting: A best efforts or firm
commitment underwriting or private placement that meets the requirements of
Prohibited Transaction Exemption ("PTE") 2002-41, 67 Fed. Reg. 54487 (2002) (or
any successor thereto), or any substantially similar administrative exemption
granted by the U.S. Department of Labor.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Escrow Account: The Eligible Account or Accounts established
and maintained pursuant to Section 3.09(b).
Escrow Payments: As defined in Section 3.09(b) of this
Agreement.
Event of Default: As defined in Section 7.01.
Excess Overcollateralized Amount: With respect to any
Distribution Date, the excess, if any, of (a) the Overcollateralized Amount on
such Distribution Date over (b) the Specified Overcollateralized Amount for such
Distribution Date.
Excess Reserve Fund Account: The separate Eligible Account
created and maintained by the Trustee pursuant to Sections 3.27(a) in the name
of the Trustee for the benefit of the Regular Certificateholders and designated
"Xxxxx Fargo Bank Minnesota, National Association in trust for registered
holders of GSAMP Trust 2003-AHL, Mortgage Pass-Through Certificates, Series
2003-AHL." Funds in the Excess Reserve Fund Account shall be held in trust for
the Regular Certificateholders for the uses and purposes set forth in this
Agreement. Amounts on deposit in the Excess Reserve Fund Account shall not be
invested.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Expense Fee Rate: As to each Mortgage Loan, a per annum rate
equal to the sum of the Servicing Fee Rate and the Trustee Fee Rate.
Expense Fees: As to each Mortgage Loan, the sum of the
Servicing Fee and the Trustee Fee.
Extra Principal Distribution Amount: As of any Distribution
Date, the lesser of (x) the related Total Monthly Excess Spread for such
Distribution Date and (y) the related Overcollateralization Deficiency for such
Distribution Date.
Xxxxxx Xxx: The Federal National Mortgage Association and its
successors in interest.
Xxxxxx Mae Guides: The Xxxxxx Xxx Seller's Guide and the
Xxxxxx Mae Servicer's Guide and all amendments or additions thereto.
FDIC: The Federal Deposit Insurance Corporation, or any
successor thereto.
Final Recovery Determination: With respect to any defaulted
Mortgage Loan or any REO Property (other than a Mortgage Loan or REO Property
purchased by the Responsible Party as contemplated by this Agreement), a
determination made by the Servicer that all Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds and other payments or recoveries which the
Servicer, in its reasonable good faith judgment, expects to be finally
recoverable in respect thereof have been so recovered. The Servicer shall
maintain records, prepared by a Servicing Officer, of each Final Recovery
Determination made thereby.
Final Scheduled Distribution Date: The Final Scheduled
Distribution Date for each Class of Certificates is the Distribution Date in
each of the following months:
MONTH OF
FINAL SCHEDULED
DISTRIBUTION DATE
-----------------
Class A-1 Certificates.................................... October 2033
Class A-2A Certificates................................... October 2033
Class A-2B Certificates................................... October 2033
Class A-IO Certificates................................... April 2005
Class M-1 Certificates.................................... October 2033
Class M-2 Certificates.................................... October 2033
Class B-1 Certificates.................................... October 2033
Class B-2 Certificates.................................... October 2033
Class X Certificates...................................... October 2033
Class P Certificates...................................... October 2033
Class R Certificates...................................... October 2033
Fitch: Fitch Ratings, or any successor thereto. If Fitch is
designated as a Rating Agency in the Preliminary Statement, for purposes of
Section 10.05(b) the address for notices to Fitch shall be Fitch Ratings, Xxx
Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: MBS Monitoring - GSAMP
Trust 2003-AHL, or such other address as Fitch may hereafter furnish to the
Depositor, the Servicer and the Trustee.
Fixed Rate Mortgage Loan: A fixed rate Mortgage Loan purchased
pursuant to the Purchase Agreement.
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.
Xxxxxxx Mac Guides: The Xxxxxxx Mac Seller's & Servicer's
Guide and all amendments or additions thereto.
Gross Margin: With respect to each Adjustable Rate Mortgage
Loan, the fixed percentage amount set forth in the related Mortgage Note to be
added to the applicable Index to determine the Mortgage Interest Rate.
Group I Mortgage Loans: The Mortgage Loans identified on the
Mortgage Loan Schedule as Group I Mortgage Loans.
Group II Mortgage Loans: The Mortgage Loans identified on the
Mortgage Loan Schedule as Group II Mortgage Loans.
High Cost Mortgage Loan: A Mortgage Loan classified as (a) a
"high cost" loan under the Home Ownership and Equity Protection Act of 1994 or
(b) a "high cost," "threshold," "covered" or "predatory" loan under any other
applicable state, federal or local law (or a similarly classified loan using
different terminology under a law imposing heightened regulatory scrutiny or
additional legal liability for residential mortgage loans having high interest
rates, points and/or fees).
Index: As to each Adjustable Rate Mortgage Loan, the index
from time to time in effect for the adjustment of the Mortgage Interest Rate set
forth as such on the related Mortgage Note.
Insurance Policy: With respect to any Mortgage Loan included
in the Trust Fund, any insurance policy, including all riders and endorsements
thereto in effect, including any replacement policy or policies for any
Insurance Policies.
Insurance Proceeds: With respect to each Mortgage Loan,
proceeds of insurance policies insuring the Mortgage Loan or the related
Mortgaged Property.
Interest Accrual Period: With respect to each Class of
Non-Delay Certificates and each Class of Lower-Tier Regular Interests and any
Distribution Date, the period commencing on the Distribution Date occurring in
the month preceding the month in which the current Distribution Date occurs and
ending on the day immediately preceding the current Distribution Date (or, in
the case of the first Distribution Date, the period from and including the
Closing Date to but excluding such first Distribution Date). For purposes of
computing interest accruals on each Class of LIBOR Certificates, each Interest
Accrual Period has the actual number of days in such month and each year is
assumed to have 360 days. For purposes of computing interest accruals on the
Class A-IO Certificates, each Interest Accrual Period has 30 days in such month
and each year is assumed to have 360 days.
Interest Rate Cap Payment: Beginning on the first Distribution
Date and continuing through the immediately succeeding 59 Distribution Dates
thereafter, the amount, if any, equal to the product of (a) the amount by which
one-month LIBOR (determined in accordance with the Cap Agreement) as of the
reset date under the Cap Agreement exceeds 7.00%, up to a maximum of 225 basis
points, and (b) the product of the interest rate notional amount amortization
schedule attached to the Cap Agreement for that date, calculated on an
"actual/360" basis.
Investment Account: As defined in Section 3.12(a).
Investor: With respect to each MERS Designated Mortgage Loan,
the Person named on the MERS System as the investor purusant to the MERS
Procedures Manual.
Late Collections: With respect to any Mortgage Loan and any
Due Period, all amounts received after the Remittance Date immediately following
such Due Period, whether as late payments of Scheduled Payments or as Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds or otherwise, which
represent late payments or collections of principal and/or interest due (without
regard to any acceleration of payments under the related Mortgage and Mortgage
Note) but delinquent for such Due Period and not previously recovered.
LIBOR: With respect to any Interest Accrual Period for the
LIBOR Certificates, the rate determined by the Trustee on the related LIBOR
Determination Date on the basis of the offered rate for one-month U.S. dollar
deposits as such rate appears on Telerate Page 3750 as of 11:00 a.m. (London
time) on such date; provided, that if such rate does not appear on Telerate Page
3750, the rate for such date will be determined on the basis of the rates at
which one-month U.S. dollar deposits are offered by the Reference Banks at
approximately 11:00 a.m. (London time) on such date to prime banks in the London
interbank market. In such event, the Trustee will request the principal London
office of each of the Reference Banks to provide a quotation of its rate. If at
least two such quotations are provided, the rate for that date will be the
arithmetic mean of the quotations (rounded upwards if necessary to the nearest
whole multiple of 1/16%). If fewer than two quotations are provided as
requested, the rate for that date will be the arithmetic mean of the rates
quoted by major banks in New York City, selected by the Trustee (after
consultation with the Depositor), at approximately 11:00 a.m. (New York City
time) on such date for one-month U.S. dollar loan to leading European banks.
LIBOR Certificates: As specified in the Preliminary Statement.
LIBOR Determination Date: With respect to any Interest Accrual
Period for the LIBOR Certificates, the second London Business Day preceding the
commencement of such Interest Accrual Period.
Lifetime Rate Cap: The provision of each Mortgage Note related
to an Adjustable Rate Mortgage Loan which provides for an absolute maximum
Mortgage Interest Rate thereunder. The Mortgage Interest Rate during the terms
of each Adjustable Rate Mortgage Loan shall not at any time exceed the Mortgage
Interest Rate at the time of origination of such Adjustable Rate Mortgage Loan
by more than the amount per annum set forth on the Mortgage Loan Schedule.
Liquidated Mortgage Loan: With respect to any Distribution
Date, a defaulted Mortgage Loan (including any REO Property) which was
liquidated in the calendar month preceding the month of such Distribution Date
and as to which the Servicer has certified (in accordance with this Agreement)
that it has 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 Event: With respect to any Mortgage Loan, any of
the following events: (i) such Mortgage Loan is paid in full; (ii) a Final
Recovery Determination is made as to such Mortgage Loan; or (iii) such Mortgage
Loan is removed from coverage under this Agreement by reason of its being
purchased, sold or replaced pursuant to or as contemplated by this Agreement.
With respect to any REO Property, either of the following events: (i) a Final
Recovery Determination is made as to such REO Property; or (ii) such REO
Property is removed from coverage under this Agreement by reason of its being
purchased pursuant to this Agreement.
Liquidation Proceeds: The amounts, other than Insurance
Proceeds, Condemnation Proceeds or those received following the acquisition of
REO Property, received in connection with the liquidation of a defaulted
Mortgage Loan, whether through the sale or assignment of such Mortgage Loan,
trustee's sale, foreclosure sale or otherwise.
Loan Group: The Group I Mortgage Loans and, the Group II
Mortgage Loans, as applicable.
Loan Group Cap: The Loan Group I Cap or the Loan Group II Cap,
as applicable.
Loan Group I Cap: With respect to the Group I Mortgage Loans
as of any Distribution Date, the product of (i) 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, less the Class A-IO(1)
Pass-Through Rate (in the case of the first Distribution Date divided by 1.2)
and multiplied by a fraction of which the numerator is the Class A-IO(1)
Component Notional Amount for that Distribution Date and the denominator of
which is the aggregate Stated Principal Balance of the Group I Mortgage Loans at
the beginning of the Due Period and (ii) a fraction, the numerator of which is
30 and the denominator of which is the actual number of days in the Interest
Accrual Period related to such Distribution Date.
Loan Group II Cap: With respect to the Group II Mortgage Loans
as of any Distribution Date, the product of (i) 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 less the Class A-IO(2)
Pass-Through Rate (in the case of the first Distribution Date divided by 1.2)
and multiplied by a fraction of which the numerator is the Class A-IO(2)
Component Notional Amount for that Distribution Date and the denominator of
which is the aggregate Stated Principal Balance of the Group II Mortgage Loans
at the beginning of the Due Period, and (ii) a fraction, the numerator of which
is 30 and the denominator of which is the actual number of days in the Interest
Accrual Period related to such Distribution Date.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan,
the ratio (expressed as a percentage) of the original outstanding principal
amount of the Mortgage Loan as of the Cut-off Date (unless otherwise indicated),
to either (a) if the Mortgage Loan was made to finance the acquisition of the
related Mortgaged Property, the least of (i) the purchase price of the Mortgaged
Property, (ii) the Appraisal Value of the Mortgaged Property at origination, or
(iii) the Review Appraisal Value of the Mortgaged Property; or (b) if the
Mortgage Loan was a refinancing or modification, the Appraisal Value of the
Mortgaged Property at the time of the refinancing or modification.
London Business Day: Any day on which dealings in deposits of
United States dollars are transacted in the London interbank market.
Lower-Tier Regular Interest: Each of the Class LT-A-1, Class
XX-X-0X, Xxxxx X-0X, Class LT-A-IO, Class LT-M-1, Class LT-M-2, Class LT-B-1,
Class LT-B-2, Class LT-Group I, Class LT-Group II, and Class LT-Accrual
Interests as described in the Preliminary Statement.
Lower-Tier REMIC: As described in the Preliminary Statement.
Majority Class X Certificateholder: The Holder or Holders of a
majority of the Percentage Interests in the Class X Certificates.
MERS: As defined in Section 2.01.
MERS Designated Mortgage Loan: Mortgage Loans for which (a)
the Responsible Party has designated or will designate MERS as, and has taken or
will take such action as is necessary to cause MERS to be, the mortgagee of
record, as nominee for the Responsible Party, in accordance with MERS Procedure
Manual and (b) the Responsible Party has designated or will designate the Trust
as the Investor on the MERS(R) System.
MERS Procedure Manual: The MERS Procedures Manual, as it may
be amended, supplemented or otherwise modified from time to time.
MERS(R) System: MERS mortgage electronic registry system, aS
more particularly described in the MERS Procedures Manual.
Monthly Statement: The statement made available to the
Certificateholders pursuant to Section 4.03.
Moody's: Xxxxx'x Investors Service, Inc. If Xxxxx'x is
designated as a Rating Agency in the Preliminary Statement, for purposes of
Section 10.05(b) the address for notices to Moody's shall be Xxxxx'x Investors
Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Residential Mortgage Pass-Through Group, or such other address as Moody's may
hereafter furnish to the Depositor, the Servicer and the Trustee.
Mortgage: The mortgage, deed of trust or other instrument
identified on the Mortgage Loan Schedule as securing a Mortgage Note.
Mortgage File: The items pertaining to a particular Mortgage
Loan contained in either the Servicing File or Custodial File.
Mortgage Interest Rate: The annual rate of interest borne on a
Mortgage Note with respect to each Mortgage Loan.
Mortgage Loan: An individual Mortgage Loan which is the
subject of this Agreement, each Mortgage Loan originally sold and subject to
this Agreement being identified on the Mortgage Loan Schedule, which Mortgage
Loan includes, without limitation, the Mortgage File, the Custodial File, the
Servicing File, the Scheduled Payments, Principal Prepayments, Liquidation
Proceeds, Condemnation Proceeds, Insurance Proceeds, REO Disposition proceeds,
Prepayment Premiums and all other rights, benefits, proceeds and obligations
arising from or in connection with such Mortgage Loan, excluding replaced or
repurchased Mortgage Loans.
Mortgage Loan Documents: The mortgage loan documents
pertaining to each Mortgage Loan.
Mortgage Loan Schedule: A schedule of Mortgage Loans annexed
hereto as Schedule I, such schedule setting forth the following information with
respect to each Mortgage Loan as of the Cut-off Date: (1) the Responsible
Party's Mortgage Loan identifying number; (2) the Mortgagor's name; (3) the
street address of the Mortgaged Property including the city, state and zip code;
(4) a code indicating whether the Mortgaged Property is owner-occupied, a second
home or investment property; (5) the number and type of residential units
constituting the Mortgaged Property (i.e., a single family residence, a 2-4
family residence, a unit in a condominium project or a unit in a planned unit
development, manufactured housing); (6) the original months to maturity or the
remaining months to maturity from the Cut-off Date, in any case based on the
original amortization schedule and, if different, the maturity expressed in the
same manner but based on the actual amortization schedule; (7) the Loan-to-Value
Ratio at origination; (8) the Mortgage Interest Rate as of the Cut-off Date; (9)
the date on which the Scheduled Payment was due on the Mortgage Loan and, if
such date is not consistent with the Due Date currently in effect, such Due
Date; (10) the stated maturity date; (11) the amount of the Scheduled Payment as
of the Cut-off Date; (12) the last payment date on which a Scheduled Payment was
actually applied to pay interest and the outstanding principal balance; (13) the
original principal amount of the Mortgage Loan; (14) the principal balance of
the Mortgage Loan as of the close of business on the Cut-off Date, after
deduction of payments of principal due and collected on or before the Cut-off
Date; (15) with respect to Adjustable Rate Mortgage Loans, the Adjustment Date;
(16) with respect to Adjustable Rate Mortgage Loans, the Gross Margin; (17) with
respect to Adjustable Rate Mortgage Loans, the Lifetime Rate Cap under the terms
of the Mortgage Note; (18) with respect to Adjustable Rate Mortgage Loans, a
code indicating the type of Index; (19) with respect to Adjustable Rate Mortgage
Loans, the Periodic Mortgage Interest Rate Cap under the terms of the Mortgage
Note; (20) the type of Mortgage Loan (i.e., fixed rate, adjustable rate, first
lien); (21) a code indicating the purpose of the loan (i.e., purchase, rate and
term refinance, equity take-out refinance); (22) a code indicating the
documentation style (i.e., full documentation, limited documentation or stated
income); (23) the loan credit classification (as described in the Underwriting
Guidelines); (24) whether such Mortgage Loan provides for a Prepayment Premium;
(25) the Prepayment Premium period of such Mortgage Loan, if applicable; (26) a
description of the Prepayment Premium, if applicable; (27) the Mortgage Interest
Rate as of origination; (28) the credit risk score (FICO score) at origination;
(29) the date of origination; (30) the Mortgage Interest Rate adjustment period;
(31) the Mortgage Interest Rate floor; (32) the Mortgage Interest Rate
calculation method (i.e., 30/360, simple interest, other); (33) a code
indicating whether the Mortgage Loan is a High Cost Mortgage Loan; (34) a code
indicating whether the Mortgage Loan has been modified; (35) the current
Loan-to-Value Ratio; (36) the one year payment history; (37) the Due Date for
the first Scheduled Payment; (38) the original Scheduled Payment due; (39) with
respect to the related Mortgagor, the debt-to-income ratio; (40) the Appraised
Value of the Mortgaged Property; (41) the sales price of the Mortgaged Property
if the Mortgage Loan was originated in connection with the purchase of the
Mortgaged Property; (42) the MERS identification number; (43) a code indicating
whether the Mortgage Loan is a Group I Mortgage Loan or Group II Mortgage Loan;
(44) a code indicating if a Mortgage Loan is or has had a 30 Day Delinquency;
and (45) a code indicating if a Mortgage Loan is being serviced by Accredited or
Chase. With respect to the Mortgage Loans in the aggregate: (1) the number of
Mortgage Loans; (2) the current aggregate outstanding principal balance of the
Mortgage Loans; (3) the weighted average Mortgage Interest Rate of the Mortgage
Loans; and (4) the weighted average maturity of the Mortgage Loans.
Mortgage Note: The note or other evidence of the indebtedness
of a Mortgagor under a Mortgage Loan.
Mortgaged Property: The real property (or leasehold estate, if
applicable) identified on the Mortgage Loan Schedule as securing repayment of
the debt evidenced by a Mortgage Note.
Mortgagor: The obligor(s) on a Mortgage Note.
Net Monthly Excess Cash Flow: For any Distribution Date the
amount remaining for distribution pursuant to subsection 4.02(a)(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 Trust: GSAMP NIM Trust 2003-AHL-N, a Delaware statutory
trust.
90+ Day Delinquent Mortgage Loan: Each Mortgage Loan with
respect to which any portion of a Scheduled Payment is, as of the last day of
the prior Due Period, three months or more past due (without giving effect to
any grace period), each Mortgage Loan in foreclosure, all REO Property and each
Mortgage Loan for which the Mortgagor has filed for bankruptcy.
Non-Delay Certificates: As specified in the Preliminary
Statement.
Nonrecoverable P&I Advance: Any P&I Advance previously made or
proposed to be made in respect of a Mortgage Loan or REO Property that, in the
good faith business judgment of the Servicer, will not or, in the case of a
proposed P&I Advance, would not be ultimately recoverable from related late
payments, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds on
such Mortgage Loan or REO Property as provided herein.
Nonrecoverable Servicing Advance: Any Servicing Advances
previously made or proposed to be made in respect of a Mortgage Loan or REO
Property, which, in the good faith business judgment of the Servicer, will not
or, in the case of a proposed Servicing Advance, would not, be ultimately
recoverable from related Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds or otherwise.
Notice of Final Distribution: The notice to be provided
pursuant to Section 9.02 to the effect that final distribution on any of the
Certificates shall be made only upon presentation and surrender thereof.
Offered Certificates: As specified in the Preliminary
Statement.
Officer's Certificate: A certificate signed by an officer of
the Servicer with responsibility for the servicing of the Mortgage Loans
required to be serviced by the Servicer and listed on a list delivered to the
Trustee pursuant to this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be
in-house counsel for the Servicer or a Subservicer, reasonably acceptable to the
Trustee; provided, that any Opinion of Counsel relating to (a) qualification of
any Trust REMIC as a REMIC or (b) compliance with the REMIC Provisions, must be
(unless otherwise stated in such Opinion of Counsel) an opinion of counsel who
(i) is in fact independent of the Servicer of the Mortgage Loans, (ii) does not
have any material direct or indirect financial interest in the Servicer of the
Mortgage Loans or in an affiliate of either and (iii) is not connected with the
Servicer of the Mortgage Loans as an officer, employee, director or person
performing similar functions.
Optional Termination Date: The date determined as follows:
(i) The Majority Class X Certificateholder (as evidenced on
the records of the Registrar) may cause the Optional Termination Date
to occur on the Distribution Date when the aggregate Stated Principal
Balance of the Mortgage Loans, as of the last day of the related Due
Period, is equal to 10.00% or less of the Cut-off Date Pool Principal
Balance (provided, that if the Depositor or an Affiliate of the
Depositor is one of the Holders constituting such majority, then there
must be at least one other unaffiliated Holder constituting such
majority and the Class X Certificates held by such Holder (or
unaffiliated Holders in the aggregate) must represent at least a 10%
Percentage Interest in the Class X Certificates); and
(ii) The Servicer may cause the Optional Termination Date to
occur on 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 5.00% or less of the Cut-off Date Pool Principal
Balance.
In the event that both the Servicer and the Majority Class X
Certificateholder (or the Majority Class X Certificateholder and another Class X
Certificateholder) have the call rights described above, at such time as those
rights may be exercised, the first Person to provide notice to exercise the call
right will have the right to purchase the Mortgage Loans.
Original Sale Date: August 15, 2003, September 24, 2003, or
October 1, 2003.
OTS: Office of Thrift Supervision, and any successor thereto.
Outstanding: With respect to the Certificates as of any date
of determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(i) Certificates theretofore canceled by the Trustee or
delivered to the Trustee for cancellation; and
(ii) Certificates in exchange for which or in lieu of which
other Certificates have been executed and delivered by the Trustee
pursuant to this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan
with a Stated Principal Balance greater than zero which was not the subject of a
Principal Prepayment in Full prior to such Due Date and which did not become a
Liquidated Mortgage Loan prior to such Due Date.
Overcollateralized Amount: As of any Distribution Date, the
excess, if any, of (a) the aggregate Stated Principal Balance of the Mortgage
Loans for such Distribution Date over (b) the aggregate of the Class Certificate
Balances of the LIBOR Certificates as of such Distribution Date (after giving
effect to the payment of the Principal Remittance Amount on such Certificates on
such Distribution Date).
Overcollateralization Deficiency: With respect to any
Distribution Date, the excess, if any, of (a) the Specified Overcollateralized
Amount applicable to such Distribution Date over (b) the Overcollateralized
Amount applicable to such Distribution Date.
Overcollateralization Floor: With respect to any Distribution
Date, 0.50% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date.
Overcollateralization Reduction Amount: With respect to any
Distribution Date, an amount equal to the lesser of (a) the Excess
Overcollateralized Amount and (b) the Total Monthly Excess Spread.
Ownership Interest: As to any Residual Certificate, any
ownership interest in such Certificate including any interest in such
Certificate as the Holder thereof and any other interest therein, whether direct
or indirect, legal or beneficial.
P&I Advance: As to any Mortgage Loan or REO Property, any
advance made by the Servicer in respect of any Remittance Date representing the
aggregate of all payments of principal and interest, net of the Servicing Fee,
that were due during the related Due Period on the Mortgage Loans and that were
delinquent on the related Remittance Date, plus certain amounts representing
assumed payments not covered by any current net income on the Mortgaged
Properties acquired by foreclosure or deed in lieu of foreclosure as determined
pursuant to Section 4.01.
Pass-Through Margin: With respect to each Class of LIBOR
Certificates, the following percentages: Class A-1 Certificates, 0.340%; Class
A-2A Certificates, 0.200%; Class A-2B Certificates, 0.620%; Class M-1
Certificates, 0.700%; Class M-2 Certificates, 1.700%; Class B-1 Certificates,
4.000%; and Class B-2 Certificates, 4.250%. On the first Distribution Date after
the Optional Termination Date, the Pass-Through Margins shall increase to: Class
A-1 Certificates, 0.680%; Class A-2A Certificates, 0.400%; Class A-2B
Certificates, 1.240%; Class M-1 Certificates, 1.050%; Class M-2 Certificates,
2.550%; Class B-1 Certificates, 6.000%; and Class B-2 Certificates, 6.375%.
Pass-Through Rate: For each Class of Certificates, each
Lower-Tier Regular Interest and each Pooling-Tier Regular Interest, the per
annum rate set forth or calculated in the manner described in the Preliminary
Statement.
Percentage Interest: As to any Certificate, the percentage
interest evidenced thereby in distributions required to be made on the related
Class, such percentage interest being set forth on the face thereof or equal to
the percentage obtained by dividing the Denomination of such Certificate by the
aggregate of the Denominations of all Certificates of the same Class.
Periodic Mortgage Interest Rate Cap: With respect to each
Adjustable Rate Mortgage Loan, the provision of each Mortgage Note which
provides for an absolute maximum amount by which the Mortgage Interest Rate
therein may increase or decrease on an Adjustment Date above or below the
Mortgage Interest Rate previously in effect. The Periodic Mortgage Interest Rate
Cap for each Adjustable Rate Mortgage Loan is the rate set forth on the Mortgage
Loan Schedule.
Periodic Mortgage Interest Rate Floor: With respect to each
Adjustable Rate Mortgage Loan, the provision of each Mortgage Note which
provides for an absolute minimum amount by which the Mortgage Interest Rate
therein may increase or decrease on an Adjustment Date above or below the
Mortgage Interest Rate previously in effect. The Periodic Mortgage Interest Rate
Floor for each Adjustable Rate Mortgage Loan is the rate set forth on the
Mortgage Loan Schedule.
Permitted Investments: Any one or more of the following
obligations or securities acquired at a purchase price of not greater than par,
regardless of whether issued by the Servicer, the Trustee or any of their
respective Affiliates:
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any
agency or instrumentality thereof, provided such obligations are backed by
the full faith and credit of the United States;
(ii) demand and time deposits in, certificates of deposit of, or
bankers' acceptances (which shall each have an original maturity of not
more than 90 days and, in the case of bankers' acceptances, shall in no
event have an original maturity of more than 365 days or a remaining
maturity of more than 30 days) denominated in United States dollars and
issued by any Depository Institution and rated 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 Trustee, any other
demand, money market or time deposit, or any other obligation, security or
investment, as may be acceptable to the Rating Agencies as a permitted
investment of funds backing "Aaa" or "AAA" rated securities;
provided, however, that no instrument described hereunder shall evidence either
the right to receive (a) only interest with respect to the obligations
underlying such instrument or (b) both principal and interest payments derived
from obligations underlying such instrument and the interest and principal
payments with respect to such instrument provide a yield to maturity at par
greater than 120% of the yield to maturity at par of the underlying obligations.
Permitted Transferee: Any Person other than (i) the United
States, any State or political subdivision thereof, or any agency or
instrumentality of any of the foregoing, (ii) a foreign government,
international organization or any agency or instrumentality of either of the
foregoing, (iii) an organization (except certain farmers' cooperatives described
in Section 521 of the Code) which is exempt from tax imposed by Chapter 1 of the
Code (including the tax imposed by Section 511 of the Code on unrelated business
taxable income) on any excess inclusions (as defined in Section 860E(c)(1) of
the Code) with respect to any Residual Certificate, (iv) rural electric and
telephone cooperatives described in Section 1381(a)(2)(C) of the Code, (v) a
Person that is not a U.S. Person or a U.S. Person with respect to whom income
from a Residual Certificate is attributable to a foreign permanent establishment
or fixed base (within the meaning of an applicable income tax treaty) of such
Person or any other U.S. Person, (vi) an "electing large partnership" within the
meaning of Section 775 of the Code and (vii) any other Person so designated by
the Depositor based upon an Opinion of Counsel that the Transfer of an Ownership
Interest in a Residual Certificate to such Person may cause any Trust REMIC to
fail to qualify as a REMIC at any time that the Certificates are outstanding.
The terms "United States," "State" and "international organization" shall have
the meanings set forth in Section 7701 of the Code or successor provisions. A
corporation will not be treated as an instrumentality of the United States or of
any State or political subdivision thereof for these purposes if all of its
activities are subject to tax and, with the exception of Xxxxxxx Mac, a majority
of its board of directors is not selected by such government unit.
Person: Any individual, corporation, partnership, joint
venture, association, limited liability company, joint-stock company, trust,
unincorporated organization or government, or any agency or political
subdivision thereof.
Physical Certificates: As specified in the Preliminary
Statement.
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 Prepayment
Period, the subject of a Principal Prepayment that was applied by the Servicer
to reduce the outstanding principal balance of such Mortgage Loan on a date
preceding the Due Date in the succeeding Prepayment Period, an amount equal to
the product of (a) the Mortgage Interest Rate net of the Servicing Fee Rate for
such Mortgage Loan, (b) the amount of the Principal Prepayment for such Mortgage
Loan, (c) 1/360 and (d) the number of days commencing on the date on which such
Principal Prepayment was applied and ending on the last day of the related
Prepayment Period.
Prepayment Period: With respect to any Remittance Date, the
calendar month preceding the calendar month in which such Remittance Date
occurs.
Prepayment Premium: Any prepayment premium, penalty or charge
collected by the Servicer with respect to a Mortgage Loan from a Mortgagor in
connection with any voluntary Principal Prepayment in Full pursuant to the terms
of the related Mortgage Note.
Principal Distribution Amount: For any Distribution Date, the
sum of (i) the Basic Principal Distribution Amount for such Distribution Date
and (ii) the Extra Principal Distribution Amount for such Distribution Date.
Principal Prepayment: Any full or partial payment or other
recovery of principal on a Mortgage Loan (including upon liquidation of a
Mortgage Loan) which is received in advance of its scheduled Due Date, excluding
any Prepayment Premium and which is not accompanied by an amount of interest
representing scheduled interest due on any date or dates in any month or months
subsequent to the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment made by
a Mortgagor of the entire principal balance of a Mortgage Loan.
Principal Remittance Amount: With respect to any Distribution
Date, the amount equal to the sum of the following amounts (without duplication)
with respect to the related Due Period: (i) each scheduled payment of principal
on a Mortgage Loan due during such Due Period and received by the Servicer on or
prior to the Determination Date or advanced by the Servicer prior to the related
Remittance Date (including the portion of Insurance Proceeds or Condemnation
Proceeds allocable to principal), and all Principal Prepayments received during
the related Prepayment Period, (ii) the Liquidation Proceeds on the Mortgage
Loans allocable to principal actually collected by the Servicer during the
related Prepayment Period, (iii) the portion of the purchase price allocable to
principal with respect to each Deleted Mortgage Loan, the repurchase obligation
for which arose during the related Prepayment Period, that was repurchased
during the period from the prior Distribution Date through the Remittance Date
for the current Distribution Date, (iv) the principal portion of all
Substitution Adjustment Amounts with respect to the substitutions of Mortgage
Loans that occur during the calendar month in which such Distribution Date
occurs, and (v) the allocable portion of the proceeds received with respect to
the termination of the Trust Fund (to the extent such proceeds relate to
principal).
Private Certificates: As specified in the Preliminary
Statement.
Prospectus Supplement: The Prospectus Supplement, dated
October 27, 2003, relating to the Offered Certificates.
PTCE 95-60: As defined in Section 5.02(b).
PUD: A planned unit development.
Purchase Agreement: The Mortgage Loan Purchase and Warranties
Agreement, dated as of August 1, 2003, by and between Accredited and the
Purchaser.
Purchaser: Xxxxxxx Sachs Mortgage Company, a New York limited
partnership, as purchaser of the Mortgage Loans under the Purchase Agreement,
and its successors in interest.
Rating Agency: Each of the Rating Agencies specified in the
Preliminary Statement. If such organization or a successor is no longer in
existence, "Rating Agency" shall be such nationally recognized statistical
rating organization, or other comparable Person, as is designated by the
Depositor, notice of which designation shall be given to the Trustee. References
herein to a given rating or rating category of a Rating Agency shall mean such
rating category without giving effect to any modifiers. For purposes of Section
10.05(b), the addresses for notices to each Rating Agency shall be the address
specified therefor in the definition corresponding to the name of such Rating
Agency, or such other address as either such Rating Agency may hereafter furnish
to the Depositor and the Servicer.
Realized Losses: With respect to any date of determination and
any Liquidated Mortgage Loan, the amount, if any, by which (a) the unpaid
principal balance of such Liquidated Mortgage Loan together with accrued and
unpaid interest thereon exceeds (b) the Liquidation Proceeds with respect
thereto net of the expenses incurred by the Servicer in connection with the
liquidation of such Liquidated Mortgage Loan and net of 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 Business Day immediately preceding such Distribution Date;
provided, however, that for any Certificate issued in definitive form, the
Record Date shall be the close of business on the last day of the month
immediately preceding the related Distribution Date (or if such day is not a
Business Day, on the immediately preceding Business Day).
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 Soldiers' and Sailors' Civil Relief Act of
1940, as amended, or any similar state statutes.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and regulations promulgated thereunder, as the foregoing may be in
effect from time to time as well as provisions of applicable state laws.
Remittance Date: With respect to any Distribution Date, no
later than 12:00 PM, Central Time on the Business Day immediately preceding such
Distribution Date.
REO Disposition: The final sale by the Servicer of any REO
Property.
REO Imputed Interest: As to any REO Property, for any period,
an amount equivalent to interest (at the Mortgage Interest Rate net of the
Servicing Fee Rate that would have been applicable to the related Mortgage Loan
had it been outstanding) on the unpaid principal balance of the Mortgage Loan as
of the date of acquisition thereof (as such balance is reduced pursuant to
Section 3.15 by any income from the REO Property treated as a recovery of
principal).
REO Property: A Mortgaged Property acquired by the Trust Fund
through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Mortgage Loan.
Reporting Date: The 20th day of each calendar month or the
immediately preceding Business Day if the 20th is not a Business Day.
Repurchase Price: With respect to any Mortgage Loan, an amount
equal to the sum of (i) the unpaid principal balance of such Mortgage Loan as of
the date of repurchase, (ii) interest on such unpaid principal balance of such
Mortgage Loan at the Mortgage Interest Rate from the last date through which
interest has been paid and distributed to the Trustee to the date of repurchase,
(iii) all unreimbursed Servicing Advances and (iv) all expenses incurred by the
Servicer, the Trust or the Trustee, as the case may be, in respect of a breach
or defect, including, without limitation, (a) expenses arising out of the
Servicer's or Trustee's, as the case may be, enforcement of the Responsible
Party's repurchase obligation, to the extent not included in clause (iii), and
(b) any costs and damages incurred by the Trust in connection with any violation
by such Mortgage Loan of any predatory lending law or abusive lending law.
Request for Release: The Request for Release submitted by the
Servicer to the Trustee, substantially in the form of Exhibit J.
Residual Certificates: As specified in the Preliminary
Statement.
Responsible Officer: When used with respect to the Trustee,
any vice president, any assistant vice president, any assistant secretary, any
assistant treasurer, any associate or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers who at such time shall be officers to whom, with respect to
a particular matter, such matter is referred because of such officer's knowledge
of and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Agreement.
Responsible Party: Accredited.
Review Appraisal Value: As defined in the Underwriting
Guidelines.
Rule 144A Letter: As defined in Section 5.02(b).
Scheduled Payment: The scheduled monthly payment on a Mortgage
Loan due on any Due Date allocable to principal and/or interest on such Mortgage
Loan which, unless otherwise specified herein, shall give effect to any related
Debt Service Reduction and any Deficient Valuation that affects the amount of
the monthly payment due on such Mortgage Loan.
Securities Act: The Securities Act of 1933, as amended.
Senior Enhancement Percentage: With respect to any
Distribution Date, the percentage obtained by dividing (x) the sum of (i) the
aggregate Class Certificate Balance of the Subordinated Certificates and (ii)
the Overcollateralized Amount (in each case after taking into account the
distributions of the Principal Distribution Amount for such Distribution Date)
by (y) the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date.
Senior Specified Enhancement Percentage: As of any date of
determination, 33.00%.
Servicer: Accredited and Chase, and if a successor servicer is
appointed hereunder, such successor servicer. When the term "Servicer" is used
in this Agreement in connection with the administration of servicing obligations
with respect to certain Mortgage Loans, Mortgaged Properties, REO Properties or
Mortgage Files as indicated on the Mortgage Loan Schedule, "Servicer" shall mean
prior to the Servicing Transfer Date, Accredited (and Chase for all of the other
Mortgage Loans), and thereafter Chase with respect to all of the Mortgage Loans.
Servicer Remittance Report: As defined in Section 4.03(d).
Servicing Advances: The reasonable "out-of-pocket" costs and
expenses (including legal fees) incurred by the Servicer in the performance of
its servicing obligations in connection with a default, delinquency or other
unanticipated event, including, but not limited to, the cost of (i) the
preservation, restoration, inspection and protection of a Mortgaged Property,
(ii) any enforcement or judicial proceedings, including foreclosures and
litigation, in respect of a particular Mortgage Loan, (iii) the management
(including reasonable fees in connection therewith) and liquidation of any REO
Property, and (iv) the performance of its obligations under Sections 3.01, 3.09,
3.13 and 3.15. Servicing Advances also include any reasonable "out-of-pocket"
costs and expenses (including legal fees) incurred by the Servicer in connection
with executing and recording instruments of satisfaction, deeds of reconveyance
or Assignments of Mortgage in connection with any satisfaction or foreclosures
in respect of any Mortgage Loan to the extent not recovered from the Mortgagor
or otherwise payable under this Agreement. The Servicer shall not be required to
make any Nonrecoverable Servicing Advances.
Servicing Fee: With respect to each Mortgage Loan and any
Distribution Date, an amount equal to the product of (i) one-twelfth of the
Servicing Fee Rate, and (ii) the Stated Principal Balance of such Mortgage Loan
as of the first day of the calendar month preceding the month in which such
Distribution Date occurs. Such fee shall be payable monthly, and shall be pro
rated for any portion of a month during which the Mortgage Loan is serviced by
the Servicer under this Agreement. The Servicing Fee is payable solely from the
interest portion (including recoveries with respect to interest from Liquidation
Proceeds, Insurance Proceeds, Condemnation Proceeds and proceeds received with
respect to REO Properties, to the extent permitted by Section 3.11) of such
Scheduled Payment collected by the Servicer or as otherwise provided under
Section 3.11.
Servicing Fee Rate: With respect to each Mortgage Loan 0.50%
per annum.
Servicing File: With respect to each Mortgage Loan, the file
retained by the Servicer consisting of originals or copies of all documents in
the Mortgage File which are not delivered to the Trustee in the Custodial File
and copies of the Mortgage Loan Documents set forth in Exhibit K hereto.
Servicing Officer: Any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and facsimile signature appear on a list of servicing officers furnished to
the Trustee by the Servicer on the Closing Date pursuant to this Agreement, as
such list may from time to time be amended.
Servicing Rights: Any and all of the following: (a) all rights
and obligations to service the Mortgage Loans; (b) any compensation for
servicing the Mortgage Loans; (c) any late fees, penalties or similar payments
with respect to the Mortgage Loans (other than prepayment penalties); (d) all
agreements or documents creating, defining or evidencing any such servicing
rights to the extent they relate to such servicing rights; (e) any interest on
Escrow Accounts allowed by law or other similar payments with respect to the
Mortgage Loans and any amounts actually collected with respect thereto; (f) all
accounts and other rights to payment related to any of the property described in
this paragraph; (g) the right to possess and use any and all servicing files,
servicing records, data tapes, computer records, or other information pertaining
to the Mortgage Loans to the extent relating to the past, present or prospective
servicing of the Mortgage Loans; and (h) all rights, powers and privileges
incident to any of the foregoing.
Servicing Transfer Costs: All reasonable out-of-pocket costs
and expenses (including all extraordinary expenses) incurred by the Trustee in
connection with the transfer of servicing from a terminated Servicer, including,
without limitation, any such costs or expenses associated with the complete
transfer of all servicing data and the completion, correction or manipulation of
such servicing data as may be required by the Trustee to correct any errors or
insufficiencies in the servicing data or otherwise to enable the Trustee (or any
successor Servicer appointed pursuant to Section 7.02) to service the Mortgage
Loans properly and effectively.
Servicing Transfer Date: November 1, 2003.
Similar Law: As defined in Section 5.02(b).
Six-Month LIBOR Index: With respect to each applicable
Adjustable Rate Mortgage Loan, the rate as determined on the basis of rates at
which six-month U.S. dollar deposits are offered to prime banks in the London
interbank market on such date as provided in the related Mortgage Note.
60+ Day Delinquent Mortgage Loan: Each Mortgage Loan with
respect to which any portion of a Scheduled Payment is, as of the last day of
the prior Due Period, two months or more past due (without giving effect to any
grace period), each Mortgage Loan in foreclosure, all REO Property and each
Mortgage Loan for which the Mortgagor has filed for bankruptcy.
Specified Overcollateralized Amount: Prior to the Stepdown
Date, an amount equal to 2.25% of the Cut-off Date Pool Principal Balance. On
and after the Stepdown Date, an amount equal to 4.50% of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date, subject,
until the Class Certificate Balance of each Class of LIBOR Certificates has been
reduced to zero, to a minimum amount equal to the Overcollateralization Floor;
provided, however, that if, on any Distribution Date, a Trigger Event has
occurred, the Specified Overcollateralized Amount shall not be reduced to the
applicable percentage of the then current aggregate Stated Principal Balance of
the Mortgage Loans until the Distribution Date on which a Trigger Event is no
longer occurring.
Standard & Poor's: 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
10.05(b) the address for notices to Standard & Poor's shall be Standard &
Poor's, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Residential
Mortgage Surveillance Group - GSAMP Trust 2003-AHL, or such other address as
Standard & Poor's may hereafter furnish to the Depositor, the Servicer and the
Trustee.
Start-up Day: As defined in Section 2.06.
Stated Principal Balance: As to each Mortgage Loan and as of
any date of determination, (i) the principal balance of the Mortgage Loan at the
Cut-off Date after giving effect to payments of principal due on or before such
date, minus (ii) all amounts previously remitted to the Trustee with respect to
the related Mortgage Loan representing payments or recoveries of principal
including advances in respect of scheduled payments of principal. For purposes
of any Distribution Date, the Stated Principal Balance of any Mortgage Loan will
give effect to any scheduled payments of principal received by the Servicer on
or prior to the related Determination Date or advanced by the Servicer for the
related Remittance Date and any unscheduled principal payments and other
unscheduled principal collections received during the related Prepayment Period.
Stepdown Date: The earlier to occur of (a) the date on which
the aggregate Class Certificate Balances of the Class A LIBOR Certificates have
been reduced to zero, and (b) the later to occur of (i) the Distribution Date in
November 2006, 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.
Subservicer: As defined in Section 3.02(a).
Subservicing Account: As defined in Section 3.08.
Subservicing Agreements: As defined in Section 3.02(a).
Substitute Mortgage Loan: A Mortgage Loan substituted by the
Responsible Party for a Deleted Mortgage Loan which must, on the date of such
substitution, as confirmed in a Request for Release, substantially in the form
of Exhibit J, (i) have a Stated Principal Balance, after deduction of the
principal portion of the Scheduled Payment due in the month of substitution, not
in excess of the Stated Principal Balance of the Deleted Mortgage Loan; (ii) be
accruing interest at a rate no lower than and not more than 1% per annum higher
than, that of the Deleted Mortgage Loan; (iii) have a Loan-to-Value Ratio no
higher than that of the Deleted Mortgage Loan; (iv) have a remaining term to
maturity no greater than (and not more than one year less than that of) the
Deleted Mortgage Loan; and (v) comply with each representation and warranty set
forth in Section 2.03.
Substitution Adjustment Amount: The meaning ascribed to such
term pursuant to Section 2.03(f).
Tax Service Contract: As defined in Section 3.09(a).
Telerate Page 3750: The display page currently so designated
on the Bridge Telerate Service (or such other page as may replace that page on
that service for displaying comparable rates or prices).
Termination Price: As defined in Section 9.01.
30 Day Delinquency: The failure of the Mortgagor to make any
Scheduled Payment due under the Mortgage Note on or prior to the date which is
30 days after such payment's Due Date.
Total Monthly Excess Spread: As to any Distribution Date, an
amount equal to the excess if any, of (i) the interest collected on the Mortgage
Loans received by the Servicer on or prior to the related Determination Date or
advanced by the Servicer for the related Remittance Date (net of Expense Fees)
over (ii) the sum of the interest payable to the Classes of Certificates on such
Distribution Date pursuant to Section 4.02(a)(i).
Transfer: Any direct or indirect transfer or sale of any
Ownership Interest in a Residual Certificate.
Transfer Affidavit: As defined in Section 5.02(c).
Transferor Certificate: As defined in Section 5.02(b).
Trigger Event: With respect to any Distribution Date, a
Trigger Event exists if (i) the quotient (expressed as a percentage) of (1) the
rolling three month average of the aggregate unpaid principal balance of 60+ Day
Delinquent Mortgage Loans, divided by (2) the aggregate unpaid principal balance
of the Mortgage Loans as of the last day of the related Due Period, equals or
exceeds 42.50% of the Senior Enhancement Percentage as of the last day of the
prior Due Period or (ii) the quotient (expressed as a percentage) of (x) the
aggregate amount of Realized Losses incurred since the Cut-off Date through the
last day of the related Prepayment Period divided by (y) the Cut-off Date Pool
Principal Balance, exceeds the applicable percentages set forth below with
respect to such Distribution Date:
--------------------------------------------------------------------------------
DISTRIBUTION DATE OCCURRING IN LOSS PERCENTAGE
------------------------------ ---------------
--------------------------------------------------------------------------------
November 2006 through October 2007 3.500% for the first month, plus an
additional 1/12th of 2.250% for each
month thereafter (e.g., approximately
3.688% in December 2006)
--------------------------------------------------------------------------------
November 2007 through October 2008 5.750% for the first month, plus an
additional 1/12th of 0.750% for each
month thereafter (e.g., approximately
5.813% in December 2007)
--------------------------------------------------------------------------------
November 2008 through October 2009 6.500% for the first month, plus an
additional 1/12th of 0.500% for each
month thereafter (e.g., approximately
6.542% in December 2008)
--------------------------------------------------------------------------------
November 2009 and thereafter 7.000%
--------------------------------------------------------------------------------
Trust: The express trust created hereunder in Section 2.01(c).
Trust Fund: The corpus of the trust created hereunder
consisting of (i) the Mortgage Loans and all interest and principal received on
or with respect thereto after the related Cut-off Date, other than such amounts
which were due on the Mortgage Loans on or before the related Cut-off Date; (ii)
the Collection Account, 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 Cap Agreement;
and (v) all proceeds of the conversion, voluntary or involuntary, of any of the
foregoing.
Trust REMIC: Any of the Pooling-Tier REMIC, Lower-Tier REMIC
and the Upper-Tier REMIC.
Trustee: Xxxxx Fargo Bank Minnesota, National Association, and
its successors in interest and, if a successor trustee is appointed hereunder,
such successor.
Trustee Fee: As to each Mortgage Loan and any Distribution
Date, an amount equal to the product of (i) one-twelfth of the Trustee Fee Rate,
and (ii) the Stated Principal Balance of such Mortgage Loan as of the first day
of the calendar month preceding the month in which such Distribution Date
occurs.
Trustee Fee Rate: With respect to each Mortgage Loan, the per
annum rate specified in the letter agreement, dated October 30, 2003, between
the Depositor and the Trustee.
Trustee Float Period: With respect to the Distribution Date
and the related amounts in the Distribution Account, the period commencing on
the Business Day immediately preceding such Distribution Date and ending on such
Distribution Date.
U.S. Person: (i) A citizen or resident of the United States;
(ii) a corporation (or entity treated as a corporation for tax purposes) created
or organized in the United States or under the laws of the United States or of
any State thereof, including, for this purpose, the District of Columbia; (iii)
a partnership (or entity treated as a partnership for tax purposes) organized in
the United States or under the laws of the United States or of any state
thereof, including, for this purpose, the District of Columbia (unless provided
otherwise by future Treasury regulations); (iv) an estate whose income is
includible in gross income for United States income tax purposes regardless of
its source; or (v) a trust, if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more U.S. Persons have authority to control all substantial decisions of the
trust. Notwithstanding the last clause of the preceding sentence, to the extent
provided in Treasury regulations, certain trusts in existence on August 20,
1996, and treated as U.S. Persons prior to such date, may elect to continue to
be U.S. Persons.
Underwriters' Exemption: Any exemption listed in footnote 1
of, and amended by, Prohibited Transaction Exemption 2002-41, 67 Fed. Reg. 54487
(2002), or any successor exemption.
Underwriting Guidelines: The underwriting guidelines attached
to the Purchase Agreement.
Unpaid Interest Amounts: As of any Distribution Date and any
Class of Certificates, the sum of (a) the portion of the Accrued Certificate
Interest Distribution Amount from prior Distribution Dates remaining unpaid and
(b) interest on such unpaid amount at the applicable Pass-Through Rate (to the
extent permitted by applicable law).
Upper-Tier Regular Interest: As described in the Preliminary
Statement.
Upper-Tier REMIC: As described in the Preliminary Statement.
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, (c) 1% of all Voting Rights shall be allocated to the
Class A-IO Certificates, if any, and (d) 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, the product of (i) 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 less the Class A-IO Pass-Through Rate (in the case
of the first Distribution Date, divided by 1.2) and multiplied by a fraction the
numerator of which is the Class A-IO Notional Amount for that Distribution Date
and the denominator of which is the aggregate Stated Principal Balance of the
Mortgage Loans at the beginning of the Due Period, and (ii) a fraction, the
numerator of which is 30 and the denominator of which is the actual number of
days in the Interest Accrual Period related to such Distribution Date.
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, together with all rights of the Depositor
under the Cap Agreement, and the Trustee, on behalf of the Trust, hereby accepts
the Trust Fund.
(b) In connection with the transfer and assignment of each
Mortgage Loan, the Depositor has delivered or caused to be delivered to the
Trustee for the benefit of the Certificateholders the following documents or
instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note bearing all intervening
endorsements showing a complete chain of endorsement from the originator
to the last endorsee, endorsed "Pay to the order of _____________, without
recourse" and signed in the name of the last endorsee by an authorized
officer. To the extent that there is no room on the face of the Mortgage
Notes for endorsements, the endorsement may be contained on an allonge, if
state law so allows and the Trustee is so advised by the Depositor that
state law so allows;
(ii) the original of any guarantee executed in connection with
the Mortgage Note;
(iii) with respect to each Mortgage Loan, the original
Mortgage with evidence of recording thereon or a certified true copy of
such Mortgage submitted for recording. If in connection with any Mortgage
Loan, the Responsible Party cannot deliver or cause to be delivered the
original Mortgage with evidence of recording thereon on or prior to the
Closing Date because of a delay caused by the public recording office
where such Mortgage has been delivered for recordation or because such
Mortgage has been lost or because such public recording office retains the
original recorded Mortgage, the Responsible Party (to the extent that it
has not previously delivered the same to the Purchaser or the Trustee)
shall deliver or cause to be delivered to the Trustee, (1) a photocopy of
such Mortgage, certified by the Responsible Party (or certified by the
title company, escrow agent, or closing attorney) to be a true and
complete copy of such Mortgage dispatched to the appropriate public
recording office for recordation; and (2) upon receipt thereof by the
Responsible Party, the original recorded Mortgage, or, in the case of a
Mortgage where a public recording office retains the original recorded
Mortgage or in the case where a Mortgage is lost after recordation in a
public recording office, a copy of such Mortgage certified by such public
recording office to be a true and complete copy of the original recorded
Mortgage;
(iv) the originals of all assumption, modification,
consolidation or extension agreements (if provided), with evidence of
recording thereon or a certified true copy of such agreement submitted for
recording;
(v) except with respect to each MERS Designated Mortgage Loan,
the original Assignment of Mortgage for each Mortgage Loan endorsed in
blank and in recordable form;
(vi) with respect to each Mortgage Loan, the originals of all
intervening Assignments of Mortgage (if any) evidencing a complete chain
of assignment from the applicable originator (or MERS with respect to each
MERS Designated Mortgage Loan) to the last endorsee with evidence of
recording thereon, or if any such intervening assignment has not been
returned from the applicable recording office or has been lost or if such
public recording office retains the original recorded Assignments of
Mortgage, the Responsible Party (to the extent that it has not previously
delivered the same to the Purchaser or the Trustee) shall deliver or cause
to be delivered to the Trustee, (1) a photocopy of such intervening
assignment, certified by the Responsible Party (or certified by the title
company, escrow agent, or closing attorney) to be a complete copy of such
intervening Assignment of Mortgage dispatched to the appropriate public
recording office for recordation upon receipt thereof by the Responsible
Party, and (2) the original recorded intervening assignment or in the case
where an intervening assignment is lost after recordation in a public
recording office, a copy of such intervening assignment certified by such
public recording office to be a true and complete copy of the original
recorded intervening assignment;
(vii) the original or duplicate lender's title policy and any
riders thereto or, any one of an original title binder, an original or
copy of the preliminary title report or an original or copy of the title
commitment, and if, copies then certified by the title company;
(viii) a security agreement, chattel mortgage or equivalent
document executed in connection with the Mortgage (if provided); and
(ix) original powers of attorney, if applicable, with evidence
of recording thereon, if required.
Each Mortgage Loan for which a Mortgage Note is missing shall be
evidenced by a lost note affidavit as of the Closing Date. In the event, for
purposes of the Closing Date, one or more lost note affidavits are provided to
cover multiple missing Mortgage Notes, the Responsible Party shall deliver to
the Trustee the applicable individual lost note affidavits within ten (10)
Business Days of the Closing Date. If the Responsible Party fails to deliver the
required individual lost note affidavits within the specified period of time,
the Trustee shall notify the Responsible Party to take such remedial actions,
including, without limitation, the repurchase by the Responsible Party of such
Mortgage Loan within 30 days of the Closing Date.
The Responsible Party shall deliver to the Trustee the applicable
recorded document promptly upon receipt from the respective recording office but
in no event later than 150 days from the Closing Date.
If any Mortgage has been recorded in the name of Mortgage Electronic
Registration System, Inc. ("MERS") or its designee, no Assignment of Mortgage in
favor of the Trustee will be required to be prepared or delivered and instead,
the Servicer shall take all reasonable actions as are necessary at the expense
of the Depositor to cause the Trust to be shown as the owner of the related
Mortgage Loan on the records of MERS for the purpose of the system of recording
transfers of beneficial ownership of mortgages maintained by MERS.
From time to time, the Responsible Party shall forward with respect
to the Mortgage Loans, to the Trustee additional original documents, and
additional documents evidencing an assumption, modification, consolidation or
extension of a Mortgage Loan approved by the Responsible Party in accordance
with the terms of this Agreement. All such mortgage documents held by the
Trustee as to each Mortgage Loan shall constitute the "Custodial File."
On or prior to the Closing Date, the Responsible Party shall deliver
to the Trustee Assignments of Mortgages, in blank, for each Mortgage Loan
(except with respect to each MERS Designated Mortgage Loan). The Responsible
Party shall cause the Assignments of Mortgage with completed recording
information to be provided to the Servicer in a reasonably acceptable manner. No
later than thirty (30) Business Days following the later of the Closing Date and
the date of receipt by the Servicer of the fully completed Assignments of
Mortgages in recordable form, the Servicer shall promptly submit or cause to be
submitted for recording, at the expense of the Responsible Party at no expense
to the Trust Fund, the Trustee or the Depositor in the appropriate public office
for real property records, each Assignment of Mortgage referred to in Section
2.01(b)(vi). Notwithstanding the foregoing, however, for administrative
convenience and facilitation of servicing and to reduce closing costs, the
Assignments of Mortgage shall not be required to be completed and submitted for
recording with respect to any Mortgage Loan if (i) the Trustee and each Rating
Agency has received an opinion of counsel, satisfactory in form and substance to
the Trustee and each Rating Agency, to the effect that the recordation of such
Assignments of Mortgage in any specific jurisdiction is not necessary to protect
the Trustee's interest in the related Mortgage Note or (ii) if such Mortgage
Loan is a MERS Designated Mortgage Loan. If the Assignment of Mortgage is to be
recorded, the Mortgage shall be assigned by the Responsible Party at the
Responsible Party's expense to "Xxxxx Fargo Bank Minnesota, National Association
as trustee under the Pooling and Servicing Agreement dated as of October 1,
2003, GSAMP Trust 2003-AHL." In the event that any such assignment is lost or
returned unrecorded because of a defect therein, the Responsible Party shall
promptly prepare a substitute assignment to cure such defect and thereafter
cause each such assignment to be duly recorded.
On or prior to the Closing Date, the Depositor shall deliver to the
Trustee and the Servicer a copy of the Data Tape Information in electronic,
machine readable medium in a form mutually acceptable to the Depositor, the
Servicer and the Trustee. Within ten (10) Business Days of the Closing Date, the
Depositor shall deliver a copy of the complete Mortgage Loan Schedule to the
Trustee and the Servicer.
In the event, with respect to any Mortgage Loans, that such original
or copy of any document submitted for recordation to the appropriate public
recording office is not so delivered to the Trustee within 150 days following
the Closing Date, and in the event that the Responsible Party does not cure such
failure within 30 days of discovery or receipt of written notification of such
failure from the Depositor, the related Mortgage Loan shall, upon the request of
the Depositor, be repurchased by the Responsible Party at the price and in the
manner specified in Section 2.03. The foregoing repurchase remedy shall not
apply in the event that the Responsible Party cannot deliver such original or
copy of any document submitted for recordation to the appropriate public
recording office within the specified period due to a delay caused by the
recording office in the applicable jurisdiction; provided, that the Responsible
Party shall instead deliver a recording receipt of such recording office or, if
such recording receipt is not available, an officer's certificate of an officer
of the Responsible Party confirming that such document has been accepted for
recording.
Notwithstanding anything to the contrary contained in this Section
2.01, in those instances where the public recording office retains or loses the
original Mortgage or assignment after it has been recorded, the obligations of
the Responsible Party shall be deemed to have been satisfied upon delivery by
the Responsible Party to the Trustee prior to the Closing Date of a copy of such
Mortgage or assignment, as the case may be, certified (such certification to be
an original thereof) by the public recording office to be a true and complete
copy of the recorded original thereof.
(c) The Depositor does hereby establish, pursuant to the
further provisions of this Agreement and the laws of the State of New York, an
express trust (the "Trust") to be known, for convenience, as "GSAMP Trust
2003-AHL" and Xxxxx Fargo Bank Minnesota, National Association is hereby
appointed as Trustee in accordance with the provisions of this Agreement.
(d) The Trust shall have the capacity, power and authority,
and the Trustee on behalf of the Trust is hereby authorized, to accept the sale,
transfer, assignment, set over and conveyance by the Depositor to the Trust of
all the right, title and interest of the Depositor in and to the Trust Fund
(including, without limitation, the Cap Agreement and the Mortgage Loans)
pursuant to Section 2.01(a).
Section 2.02 Acceptance by the Trustee of the Mortgage Loans.
The Trustee acknowledges receipt of the documents identified in the Initial
Certification in the form annexed hereto as Exhibit E, and declares that it
holds and will hold such documents and the other documents delivered to it
pursuant to Section 2.01, and that it holds or will hold such other assets as
are included in the Trust Fund, in trust for the exclusive use and benefit of
all present and future Certificateholders. The Trustee acknowledges that it will
maintain possession of the related Mortgage Notes in any of the States of
Minnesota, California or Utah, unless otherwise permitted by the Rating
Agencies.
Prior to and as a condition to the Closing, the Trustee shall
deliver via facsimile (with original to follow the next Business Day) to the
Depositor and the Servicer an Initial Certification prior to the Closing Date,
or as the Depositor agrees to, on the Closing Date, certifying receipt of a
Mortgage Note and Assignment of Mortgage for each Mortgage Loan with any
exceptions thereon. The Trustee shall not be responsible to verify the validity,
sufficiency or genuineness of any document in any Custodial File.
On the Closing Date, the Trustee shall ascertain that all documents
required to be reviewed by it are in its possession, and shall deliver to the
Depositor and the Servicer an Initial Certification, in the form annexed hereto
as Exhibit E, and shall deliver to the Depositor and the Servicer a Document
Certification and Exception Report, in the form annexed hereto as Exhibit F,
within 90 days after the Closing Date to the effect that, as to each Mortgage
Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid in
full or any Mortgage Loan specifically identified in such certification as an
exception and not covered by such certification): (i) all documents required to
be reviewed by it are in its possession; (ii) such documents have been reviewed
by it and appear regular on their face and relate to such Mortgage Loan; (iii)
based on its examination and only as to the foregoing documents, the information
set forth in items (1), (2) and (13) of the Mortgage Loan Schedule and items
(1), (2) and (13) of the Data Tape Information respecting such Mortgage Loan is
correct; and (iv) each Mortgage Note has been endorsed as provided in Section
2.01 of this Agreement. The Trustee shall not be responsible to verify the
validity, sufficiency or genuineness of any document in any Custodial File.
The Trustee shall retain possession and custody of each Custodial
File in accordance with and subject to the terms and conditions set forth
herein. The Servicer shall promptly deliver to the Trustee, upon the execution
or receipt thereof, the originals of such other documents or instruments
constituting the Custodial File as come into the possession of the Servicer from
time to time.
The Responsible Party shall deliver to the Servicer copies of all
trailing documents required to be included in the Custodial File at the same
time the original or certified copies thereof are delivered to the Trustee,
including but not limited to such documents as the title insurance policy and
any other Mortgage Loan documents upon return from the public recording office.
The documents shall be delivered by the Responsible Party at the Responsible
Party's expense to the Servicer and in no event shall the Servicer be
responsible for such expense.
Section 2.03 Representations, Warranties and Covenants of the
Responsible Party and the Servicer. (a) Chase hereby makes the representations
and warranties set forth in Schedule II hereto to the Depositor and the Trustee
as of the Closing Date.
(b) The Responsible Party hereby makes the representations and
warranties set forth in Schedule III and Schedule IV hereto to the Depositor,
Chase and the Trustee as of the Closing Date.
(c) It is understood and agreed that the representations and
warranties set forth in this Section 2.03 shall survive the transfer of the
Mortgage Loans by the Depositor to the Trustee, and shall inure to the benefit
of the Depositor and the Trustee notwithstanding any restrictive or qualified
endorsement on any Mortgage Note or Assignment of Mortgage or the examination or
failure to examine any Mortgage File. Upon discovery by any of the Responsible
Party, the Depositor, the Trustee or the Servicer of a breach of any of the
foregoing representations and warranties, the party discovering such breach
shall give prompt written notice to the other; provided that the Servicer need
not give notice to the other Servicer.
(d) Within 30 days of the earlier of either discovery by or
notice to the Responsible Party that any Mortgage Loan does not conform to the
requirements as determined in the Trustee's review of the related Custodial File
or within 60 days of the earlier of either discovery by or notice to the
Responsible Party of any breach of a representation or warranty set forth in
Section 2.03(b), that materially and adversely affects the value of any Mortgage
Loan or the interest of the Trustee or the Certificateholders therein, the
Responsible Party shall use its best efforts to cause to be remedied a material
defect in a document constituting part of a Mortgage File or promptly to cure
such breach in all material respects and, if such defect or breach cannot be
remedied, the Responsible Party shall, (i) if such 30 or 60 day period, as
applicable, expires prior to the second anniversary of the Closing Date, remove
such related Mortgage Loan (a "Deleted Mortgage Loan") from the Trust Fund and
substitute in its place a Substitute Mortgage Loan, in the manner and subject to
the conditions set forth in this Section 2.03, or (ii) repurchase such Mortgage
Loan at the Repurchase Price; provided, however, that any such substitution
pursuant to clause (i) above shall not be effected prior to the delivery to the
Trustee of the Opinion of Counsel required by Section 2.04, if any, and a
Request for Release substantially in the form of Exhibit J, and the Mortgage
File for any such Substitute Mortgage Loan; provided, further, that with respect
to any representations and warranties which are made to the best of the
Responsible Party's knowledge, if it is discovered by the Responsible Party, the
Servicer, the Depositor or the Trustee that the substance of such representation
and warranty is inaccurate and such inaccuracy materially and adversely affects
the value of the related Mortgage Loans or materially and adversely affects the
interests of the Trustee or the Certificateholders therein or such inaccuracy
materially and adversely affects the value of the related Mortgage Loan or
materially and adversely affects the interests of the Trustee or the
Certificateholders therein in the case of a representation and warranty relating
to a particular Mortgage Loan, notwithstanding the Responsible Party's lack of
knowledge with respect to the substance of such representation and warranty,
such inaccuracy shall be deemed a breach of the applicable representation and
warranty. In the event that a breach which materially and adversely affects the
value of the related Mortgage Loan or Mortgage Loans, as the case may be, or the
interests of the Trustee or the Certificateholders therein, shall involve any
representation or warranty set forth in Schedule IV, and such breach cannot be
cured within 60 days of the earlier of either discovery by or notice to the
Responsible Party of such breach, all of the Responsible Party Mortgage Loans
shall, at the Depositor's option, be repurchased by the Responsible Party at the
Repurchase Price. Notwithstanding the foregoing, a breach which causes a
Mortgage Loan not to constitute a "qualified mortgage" within the meaning of
Section 860G(a)(3) of the Code, or by the Responsible Party of any of the
representations and warranties set forth in clauses (45), (46), (47), (49) or
(57) of Schedule IV, in each case, will be deemed automatically to materially
and adversely affect the value of such Mortgage Loan and the interests of the
Trustee and Certificateholders in such Mortgage Loan. In the event that the
Trustee receives notice of a breach by the Responsible Party of any of the
representations and warranties set forth in clauses (45), (46), (47), (49) or
(57) of Schedule IV, the Trustee shall give notice of such breach to the
Responsible Party and request the Responsible Party to repurchase the Mortgage
Loan at the Repurchase Price within sixty (60) days of the Responsible Party's
receipt of such notice. The Responsible Party shall repurchase each such Deleted
Mortgage Loan within 60 days of the earlier of discovery or receipt of notice
with respect to each such Deleted Mortgage Loan.
(e) With respect to any Substitute Mortgage Loan or Loans, the
Responsible Party shall deliver to the Trustee for the benefit of the
Certificateholders the Mortgage Note, the Mortgage, the related assignment of
the Mortgage, and such other documents and agreements as are required by Section
2.01, with the Mortgage Note endorsed and the Mortgage assigned as required by
Section 2.01. No substitution is permitted to be made in any calendar month
after the Determination Date for such month. Scheduled Payments due with respect
to Substitute Mortgage Loans in the Due Period of substitution shall not be part
of the Trust Fund and will be retained by the Responsible Party on the next
succeeding Distribution Date. For the Due Period of substitution, distributions
to Certificateholders will include the Scheduled Payment due on any Deleted
Mortgage Loan for such Due Period and thereafter the Responsible Party shall be
entitled to retain all amounts received in respect of such Deleted Mortgage
Loan.
(f) In connection with any repurchase or substitution of a
Mortgage Loan pursuant to this Section 2.03, the Servicer shall, based on
information provided by the Responsible Party, amend the Mortgage Loan Schedule
for the benefit of the Certificateholders to reflect the removal of such Deleted
Mortgage Loan and the substitution of the Substitute Mortgage Loan or Loans and
the Servicer shall deliver the amended Mortgage Loan Schedule to the Trustee.
Upon such substitution, the Substitute Mortgage Loan or Loans shall be subject
to the terms of this Agreement in all respects, and the Responsible Party shall
be deemed to have made with respect to such Substitute Mortgage Loan or Loans,
as of the date of substitution, the representations and warranties made pursuant
to Section 2.03(b) with respect to such Mortgage Loan. Upon any such
substitution and the deposit to the Collection Account of the amount required to
be deposited therein in connection with such substitution as described in the
following paragraph, the Trustee shall release the Mortgage File held for the
benefit of the Certificateholders relating to such Deleted Mortgage Loan to the
Responsible Party and shall execute and deliver at the direction of the
Responsible Party such instruments of transfer or assignment prepared by the
Responsible Party in each case without recourse, as shall be necessary to vest
title in the Responsible Party or its designee, the Trustee's interest in any
Deleted Mortgage Loan substituted for pursuant to this Section 2.03.
(g) For any month in which the Responsible Party substitutes
one or more Substitute Mortgage Loans for one or more Deleted Mortgage Loans,
the Servicer will determine the amount (if any) by which the aggregate unpaid
principal balance of all such Substitute Mortgage Loans as of the date of
substitution is less than the aggregate Stated Principal Balance of all such
Deleted Mortgage Loans (after application of the scheduled principal portion of
the Scheduled Payments due in the Due Period of substitution). The amount of
such shortage (the "Substitution Adjustment Amount") plus an amount equal to the
aggregate of any unreimbursed Advances with respect to such Deleted Mortgage
Loans shall be remitted by the Responsible Party to the Servicer for deposit
into the Collection Account on or before the next Remittance Date.
(h) In addition to such repurchase or substitution
obligations, the Responsible Party shall indemnify the Depositor, any of its
Affiliates, the Servicer, and the Trustee and hold such parties harmless against
any losses, damages, penalties, fines, forfeitures, reasonable and necessary
legal fees and related costs, judgments, and other costs and expenses resulting
from any claim, demand, defense or assertion based on or grounded upon, or
resulting from, a breach by the Responsible Party of any of its representations
and warranties contained in this Agreement.
(i) In the event that a Mortgage Loan shall have been
repurchased pursuant to this Agreement, the proceeds from such repurchase shall
be deposited in the Collection Account by the Servicer pursuant to Section 3.10
on or before the next Remittance Date and upon such deposit of the Repurchase
Price, the delivery of the Opinion of Counsel required by Section 2.04, if
applicable, and receipt of a Request for Release in the form of Exhibit J
hereto, the Trustee shall release the related Custodial File held for the
benefit of the Certificateholders to such Person as directed by the Servicer,
and the Trustee shall execute and deliver at such Person's direction such
instruments of transfer or assignment prepared by such Person, in each case
without recourse, as shall be necessary to transfer title from the Trustee. It
is understood and agreed that the obligation under this Agreement of any Person
to cure, repurchase or replace any Mortgage Loan as to which a breach has
occurred and is continuing, together with any related indemnification
obligations, shall constitute the sole remedy against such Persons respecting
such breach available to Certificateholders, the Depositor, the Servicer or the
Trustee on their behalf.
The representations and warranties made pursuant to this
Section 2.03 shall survive delivery of the respective Custodial Files to the
Trustee for the benefit of the Certificateholders.
Section 2.04 Delivery of Opinion of Counsel in Connection with
Substitution; Non-Qualified Mortgages. (a) Notwithstanding any contrary
provision of this Agreement, no substitution pursuant to Section 2.03 shall be
made more than 90 days after the Closing Date unless the Responsible Party
delivers to the Trustee an Opinion of Counsel, which Opinion of Counsel shall
not be at the expense of either the Trustee or the Trust Fund, addressed to the
Trustee, to the effect that such substitution will not (i) result in the
imposition of the tax on "prohibited transactions" on any Trust REMIC or
contributions after the Start-up Day, as defined in Sections 860F(a)(2) and
860G(d) of the Code, respectively or (ii) cause any Trust REMIC to fail to
qualify as a REMIC at any time that any Certificates are outstanding.
(b) Upon discovery by the Depositor, the Responsible Party,
the Servicer or the Trustee that any Mortgage Loan does not constitute a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the
party discovering such fact shall promptly (and in any event within five (5)
Business Days of discovery) give written notice thereof to the other parties. In
connection therewith, the Trustee shall require the Responsible Party to
repurchase the affected Mortgage Loan within 30 days of the earlier of discovery
or receipt of notice in the same manner as it would a Mortgage Loan for a breach
of representation or warranty made pursuant to Section 2.03. The Trustee shall
reconvey to the Responsible Party the Mortgage Loan to be released pursuant
hereto in the same manner, and on the same terms and conditions, as it would a
Mortgage Loan repurchased for breach of a representation or warranty contained
in Section 2.03.
Section 2.05 Execution and Delivery of Certificates. The
Trustee acknowledges the transfer and assignment to it of the Trust Fund and,
concurrently with such transfer and assignment, has executed and delivered to or
upon the order of the Depositor, the Certificates in authorized denominations
evidencing directly or indirectly the entire ownership of the Trust Fund. The
Trustee agrees to hold the Trust Fund and exercise the rights referred to above
for the benefit of all present and future Holders of the Certificates.
Section 2.06 REMIC Matters. The Preliminary Statement sets
forth the designations for federal income tax purposes of all interests created
hereby. The "Start-up Day" for purposes of the REMIC Provisions shall be the
Closing Date. The "latest possible maturity date" is the Distribution Date in
October 2033, which is the Distribution Date following the latest Mortgage Loan
maturity date.
Section 2.07 Representations and Warranties of the Depositor.
The Depositor hereby represents, warrants and covenants to the Trustee, the
Servicer and the Responsible Party that as of the date of this Agreement or as
of such date specifically provided herein:
(a) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware;
(b) The Depositor has the corporate power and authority to
convey the Mortgage Loans and to execute, deliver and perform, and to enter into
and consummate the transactions contemplated by, this Agreement;
(c) This Agreement has been duly and validly authorized,
executed and delivered by the Depositor, all requisite corporate action having
been taken, and, assuming the due authorization, execution and delivery hereof
by the Servicer, the Responsible Party and the Trustee, constitutes or will
constitute the legal, valid and binding agreement of the Depositor, enforceable
against the Depositor in accordance with its terms, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting the rights of creditors generally, and by
general equity principles (regardless of whether such enforcement is considered
in a proceeding in equity or at law);
(d) No consent, approval, authorization or order of or
registration or filing with, or notice to, any governmental authority or court
is required for the execution, delivery and performance of or compliance by the
Depositor with this Agreement or the consummation by the Depositor of any of the
transactions contemplated hereby, except as have been made on or prior to the
Closing Date;
(e) None of the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby or thereby, or the
fulfillment of or compliance with the terms and conditions of this Agreement,
(i) conflicts or will conflict with or results or will result in a breach of, or
constitutes or will constitute a default or results or will result in an
acceleration under (A) the charter or bylaws of the Depositor, or (B) of any
term, condition or provision of any material indenture, deed of trust, contract
or other agreement or instrument to which the Depositor or any of its
subsidiaries is a party or by which it or any of its subsidiaries is bound; (ii)
results or will result in a violation of any law, rule, regulation, order,
judgment or decree applicable to the Depositor of any court or governmental
authority having jurisdiction over the Depositor or its subsidiaries; or (iii)
results in the creation or imposition of any lien, charge or encumbrance which
would have a material adverse effect upon the Mortgage Loans or any documents or
instruments evidencing or securing the Mortgage Loans;
(f) There are no actions, suits or proceedings before or
against or investigations of, the Depositor pending, or to the knowledge of the
Depositor, threatened, before any court, administrative agency or other
tribunal, and no notice of any such action, which, in the Depositor's reasonable
judgment, might materially and adversely affect the performance by the Depositor
of its obligations under this Agreement, or the validity or enforceability of
this Agreement;
(g) The Depositor is not in default with respect to any order
or decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency that may materially and adversely affect its
performance hereunder;
(h) Immediately prior to the transfer and assignment by the
Depositor to the Trustee on the Closing Date, the Depositor had good title to,
and was the sole owner of each Mortgage Loan, free of any interest of any other
Person, and the Depositor has transferred all right, title and interest in each
Mortgage Loan to the Trustee. The transfer of each Mortgage Note and each
Mortgage as and in the manner contemplated by this Agreement is sufficient
either
(i) fully to transfer to the Trustee, for the benefit of the
Certificateholders, all right, title, and interest of the Depositor thereto as
note holder and mortgagee or (ii) to grant to the Trustee, for the benefit of
the Certificateholders, the security interest referred to in Section 10.04; (i)
None of the Group I Mortgage Loans has a prepayment penalty period in excess of
three years;
It is understood and agreed that the representations, warranties and
covenants set forth in this Section 2.07 shall survive delivery of the
respective Custodial Files to the Trustee or to a custodian, as the case may be,
and shall inure to the benefit of the Trustee.
Within 60 days of the earlier of either discovery by or notice to
the Depositor of a breach of the representations and warranties set forth in
clause (h) or (i) above that materially and adversely affects the value of any
Mortgage Loan or the interest of the Trustee or the Certificateholders therein,
the Depositor shall use its best efforts to promptly cure such breach in all
material respects and if such defect or breach cannot be remedied, the Depositor
shall either (i) if such 60-day period expires prior to the second anniversary
of the Closing Date, remove such Deleted Mortgage Loan from the Trust Fund and
substitute in its place a Substitute Mortgage Loan, in the manner and subject to
the conditions set forth in Section 2.03, or (ii) repurchase such Mortgage Loan
at the Repurchase Price. Notwithstanding the foregoing, a breach by the
Depositor of the representations and warranties set forth in clause (j) above
shall be deemed automatically to materially and adversely affect the value of
the applicable Mortgage Loan and the interests of the Trustee and
Certificateholders in such Mortgage Loan. The obligations of the Depositor to
cure such breach or to substitute or purchase any Mortgage Loan constitute the
sole remedies respecting a material breach of any such representation or
warranty to the Holders of the Certificates and the Trustee.
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicer to Service Mortgage Loans. (a) For and
on behalf of the Certificateholders, the Servicer shall service and administer
the Mortgage Loans in accordance with the terms of this Agreement and the
respective Mortgage Loans, to the extent consistent with such terms and in
accordance with Accepted Servicing Practices but without regard to:
(i) any relationship that the Servicer, any Subservicer or any
Affiliate of the Servicer or any Subservicer may have with the related
Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the
Servicer or any Affiliate of the Servicer;
(iii) the Servicer's obligation to make P&I Advances or
Servicing Advances; or
(iv) the Servicer's or any Subservicer's right to receive
compensation for its services hereunder or with respect to any particular
transaction.
To the extent consistent with the foregoing, the Servicer
shall seek to maximize the timely and complete recovery of principal and
interest on the related Mortgage Notes. Subject only to the above-described
servicing standards and the terms of this Agreement and of the respective
Mortgage Loans, the Servicer shall have full power and authority, acting alone
or through Subservicers as provided in Section 3.02, to do or cause to be done
any and all things in connection with such servicing and administration which it
may deem necessary or desirable. Without limiting the generality of the
foregoing, the Servicer in its own name or in the name of a Subservicer is
hereby authorized and empowered by the Trustee when the Servicer believes it
appropriate in its best judgment in accordance with the Accepted Servicing
Practices, to execute and deliver any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge, and all other
comparable instruments, with respect to the Mortgage Loans and the Mortgaged
Properties and to institute foreclosure proceedings or obtain a deed-in-lieu of
foreclosure so as to convert the ownership of such properties, and to hold or
cause to be held title to such properties, on behalf of the Trustee. The
Servicer shall service and administer the Mortgage Loans in accordance with
applicable state and federal law and shall provide to the Mortgagors any reports
required to be provided to them thereby. The Servicer shall also comply in the
performance of this Agreement with all reasonable rules and requirements of each
insurer under any standard hazard insurance policy. Subject to Section 3.16, the
Trustee shall execute, at the written request of the Servicer, and furnish to
the Servicer and any Subservicer such documents as are necessary or appropriate
to enable the Servicer or any Subservicer to carry out their servicing and
administrative duties hereunder, and the Trustee hereby grants to the Servicer,
and this Agreement shall constitute, a power of attorney to carry out such
duties including a power of attorney to take title to Mortgaged Properties after
foreclosure on behalf of the Trustee. The Trustee shall execute any power of
attorney, in the form annexed hereto as Exhibit L, furnished to it by the
Servicer in favor of the Servicer for the purposes described herein to the
extent necessary or desirable to enable the Servicer to perform its duties
hereunder. The Trustee shall not be liable for the actions of the Servicer or
any Subservicers under such powers of attorney.
(b) Subject to Section 3.09(b), in accordance with Accepted
Servicing Practices, the Servicer shall advance or cause to be advanced funds as
necessary for the purpose of effecting the timely payment of taxes and
assessments on the Mortgaged Properties, which advances shall be Servicing
Advances reimbursable in the first instance from related collections from the
Mortgagors pursuant to Section 3.09(b), and further as provided in Section 3.11.
Any cost incurred by the Servicer or by Subservicers in effecting the timely
payment of taxes and assessments on a Mortgaged Property shall not be added to
the unpaid principal balance of the related Mortgage Loan, notwithstanding that
the terms of such Mortgage Loan so permit.
(c) Notwithstanding anything in this Agreement to the
contrary, the Servicer may not make any future advances with respect to a
Mortgage Loan (except as provided in Section 4.01) and the Servicer shall not
(i) permit any modification with respect to any Mortgage Loan that would change
the Mortgage Interest Rate, reduce or increase the principal balance (except for
reductions resulting from actual payments of principal) or change the final
maturity date on such Mortgage Loan (except for (A) a reduction of interest
payments resulting from the application of the Soldiers' and Sailors' Relief Act
of 1940, as amended, or any similar state statutes or (B) as provided in Section
3.07, if the Mortgagor is in default with respect to the Mortgage Loan or such
default is, in the judgment of the Servicer, reasonably foreseeable) or (ii)
permit any modification, waiver or amendment of any term of any Mortgage Loan
that would both (A) effect an exchange or reissuance of such Mortgage Loan under
Section 1001 of the Code (or final, temporary or proposed Treasury regulations
promulgated thereunder) and (B) cause any Trust REMIC to fail to qualify as a
REMIC under the Code or the imposition of any tax on "prohibited transactions"
or "contributions after the start-up day" under the REMIC Provisions, or (iii)
except as provided in Section 3.07(a), waive any Prepayment Premiums.
(d) The Servicer may delegate its responsibilities under this
Agreement; provided, however, that no such delegation shall release the Servicer
from the responsibilities or liabilities arising under this Agreement.
Section 3.02 Subservicing Agreements between the
Servicer and Subservicers. (a) The Servicer may enter into subservicing
agreements with subservicers (each, a "Subservicer"), for the servicing and
administration of the Mortgage Loans ("Subservicing Agreements").
(b) Each Subservicer shall be (i) authorized to transact
business in the state or states in which the related Mortgaged Properties it is
to service are situated, if and to the extent required by applicable law to
enable the Subservicer to perform its obligations hereunder and under the
Subservicing Agreement, (ii) an institution approved as a mortgage loan
originator by the Federal Housing Administration or an institution that has
deposit accounts insured by the FDIC and (iii) a Xxxxxxx Mac or Xxxxxx Mae
approved mortgage servicer. Each Subservicing Agreement must impose on the
Subservicer requirements conforming to the provisions set forth in Section 3.08
and provide for servicing of the Mortgage Loans consistent with the terms of
this Agreement. The Servicer will examine each Subservicing Agreement and will
be familiar with the terms thereof. The terms of any Subservicing Agreement will
not be inconsistent with any of the provisions of this Agreement. The Servicer
and the Subservicers may enter into and make amendments to the Subservicing
Agreements or enter into different forms of Subservicing Agreements; provided,
however, that any such amendments or different forms shall be consistent with
and not violate the provisions of this Agreement, and that no such amendment or
different form shall be made or entered into which could be reasonably expected
to be materially adverse to the interests of the Trustee, without the consent of
the Trustee. Any variation without the consent of the Trustee from the
provisions set forth in Section 3.08 relating to insurance or priority
requirements of Subservicing Accounts, or credits and charges to the
Subservicing Accounts or the timing and amount of remittances by the
Subservicers to the Servicer, are conclusively deemed to be inconsistent with
this Agreement and therefore prohibited. The Servicer shall deliver to the
Trustee and the Depositor copies of all Subservicing Agreements, and any
amendments or modifications thereof, promptly upon the Servicer's execution and
delivery of such instruments.
(c) As part of its servicing activities hereunder, the
Servicer (except as otherwise provided in the last sentence of this paragraph),
for the benefit of the Trustee, shall enforce the obligations of each
Subservicer under the related Subservicing Agreement to which the Servicer is a
party, including, without limitation, any obligation to make advances in respect
of delinquent payments as required by a Subservicing Agreement. Such
enforcement, including, without limitation, the legal prosecution of claims,
termination of Subservicing Agreements, and the pursuit of other appropriate
remedies, shall be in such form and carried out to such an extent and at such
time as the Servicer, in its good faith business judgment, would require were it
the owner of the related Mortgage Loans. The Servicer shall pay the costs of
such enforcement at its own expense, and shall be reimbursed therefor only (i)
from a general recovery resulting from such enforcement, to the extent, if any,
that such recovery exceeds all amounts due in respect of the related Mortgage
Loans or (ii) from a specific recovery of costs, expenses or attorneys' fees
against the party against whom such enforcement is directed.
Section 3.03 Successor Subservicers. The Servicer shall be
entitled to terminate any Subservicing Agreement to which the Servicer is a
party and the rights and obligations of any Subservicer pursuant to any
Subservicing Agreement in accordance with the terms and conditions of such
Subservicing Agreement. In the event of termination of any Subservicer, all
servicing obligations of such Subservicer shall be assumed simultaneously by the
Servicer party to the related Subservicing Agreement without any act or deed on
the part of such Subservicer or the Servicer, and the Servicer either shall
service directly the related Mortgage Loans or shall enter into a Subservicing
Agreement with a successor Subservicer which qualifies under Section 3.02.
Any Subservicing Agreement shall include the provision that
such agreement may be immediately terminated by the Depositor or the Trustee
without fee, in accordance with the terms of this Agreement, in the event that
the Servicer shall, for any reason, no longer be the Servicer (including
termination due to an Event of Default).
Section 3.04 Liability of the Servicer. Notwithstanding any
Subservicing Agreement, any of the provisions of this Agreement relating to
agreements or arrangements between the Servicer and a Subservicer or reference
to actions taken through a Subservicer or otherwise, the Servicer shall remain
obligated and primarily liable to the Trustee for the servicing and
administering of the Mortgage Loans in accordance with the provisions of Section
3.01 without diminution of such obligation or liability by virtue of such
Subservicing Agreements or arrangements or by virtue of indemnification from the
Subservicer and to the same extent and under the same terms and conditions as if
the Servicer alone were servicing and administering such Mortgage Loans. The
Servicer shall be entitled to enter into any agreement with a Subservicer for
indemnification of the Servicer by such Subservicer and nothing contained in
this Agreement shall be deemed to limit or modify such indemnification.
Section 3.05 No Contractual Relationship between Subservicers
and the Trustee. Any Subservicing Agreement that may be entered into and any
transactions or services relating to the Mortgage Loans involving a Subservicer
in its capacity as such shall be deemed to be between the Subservicer and the
Servicer alone, and the Trustee (or any successor to the Servicer) shall not be
deemed a party thereto and shall have no claims, rights, obligations, duties or
liabilities with respect to the Subservicer except as set forth in Section 3.06.
The Servicer shall be solely liable for all fees owed by it to any Subservicer,
irrespective of whether the Servicer's compensation pursuant to this Agreement
is sufficient to pay such fees.
Section 3.06 Assumption or Termination of Subservicing
Agreements by Trustee. In the event the Servicer at any time shall for any
reason no longer be the Servicer (including by reason of the occurrence of an
Event of Default), the Trustee, or its designee, or the successor Servicer if
the successor Servicer is not the Trustee, shall thereupon assume all of the
rights and obligations of the Servicer under each Subservicing Agreement that
the Servicer may have entered into, with copies thereof provided to the Trustee
prior to the Trustee assuming such rights and obligations, unless the Trustee
elects to terminate any Subservicing Agreement in accordance with its terms as
provided in Section 3.03.
Upon such assumption, the Trustee, its designee or the successor
servicer shall be deemed, subject to Section 3.03, to have assumed all of the
Servicer's interest therein and to have replaced the Servicer as a party to each
Subservicing Agreement to the same extent as if each Subservicing Agreement had
been assigned to the assuming party, except that (i) the Servicer shall not
thereby be relieved of any liability or obligations under any Subservicing
Agreement that arose before it ceased to be the Servicer and (ii) none of the
Depositor, the Trustee, their designees or any successor to the Servicer shall
be deemed to have assumed any liability or obligation of the Servicer that arose
before it ceased to be the Servicer.
The Servicer at its expense shall, upon request of the Trustee,
deliver to the assuming party all documents and records relating to each
Subservicing Agreement and the Mortgage Loans then being serviced by it and an
accounting of amounts collected and held by or on behalf of it, and otherwise
use its best efforts to effect the orderly and efficient transfer of the
Subservicing Agreements to the assuming party.
Section 3.07 Collection of Certain Mortgage Loan Payments. (a)
The Servicer shall make reasonable efforts to collect all payments called for
under the terms and provisions of the Mortgage Loans and shall, to the extent
such procedures shall be consistent with this Agreement and the terms and
provisions of any applicable Insurance Policies, follow such collection
procedures as it would follow with respect to mortgage loans comparable to the
Mortgage Loans and held for its own account. Consistent with the foregoing and
Accepted Servicing Practices, the Servicer may (i) waive any late payment charge
or, if applicable, any penalty interest, or (ii) extend the due dates for the
Scheduled Payments due on a Mortgage Note for a period of not greater than 180
days; provided, that any extension pursuant to clause (ii) above shall not
affect the amortization schedule of any Mortgage Loan for purposes of any
computation hereunder, except as provided below. In the event of any such
arrangement pursuant to clause (ii) above, the Servicer shall make timely
advances on such Mortgage Loan during such extension pursuant to Section 4.01
and in accordance with the amortization schedule of such Mortgage Loan without
modification thereof by reason of such arrangements, subject to Section 4.01(d)
pursuant to which the Servicer shall not be required to make any such advances
that are Nonrecoverable P&I Advances. Notwithstanding the foregoing, in the
event that any Mortgage Loan is in default or is a 60+ Day Delinquent Mortgage
Loan, the Servicer, consistent with the standards set forth in Section 3.01, may
also waive, modify or vary any term of such Mortgage Loan (including
modifications that would change the Mortgage Interest Rate, forgive the payment
of principal or interest, extend the final maturity date of such Mortgage Loan
or waive, in whole or in part, a Prepayment Premium), accept payment from the
related Mortgagor of an amount less than the Stated Principal Balance in final
satisfaction of such Mortgage Loan, or consent to the postponement of strict
compliance with any such term or otherwise grant indulgence to any Mortgagor
(any and all such waivers, modifications, variances, forgiveness of principal or
interest, postponements, or indulgences collectively referred to herein as
"forbearance"); provided, however, that the Servicer's approval of a
modification of a Due Date shall not be considered a modification for purposes
of this sentence; provided, further, that the final maturity date of any
Mortgage Loan may not be extended beyond the Final Scheduled Distribution Date
for the Offered Certificates. The Servicer's analysis supporting any forbearance
and the conclusion that any forbearance meets the standards of Section 3.01
shall be reflected in writing in the applicable Servicing File. In addition,
notwithstanding the foregoing, the Servicer may also waive, in whole or in part,
a Prepayment Premium if such Prepayment Premium is (i) not permitted to be
collected by applicable law or the collection thereof would be considered
"predatory" pursuant to written guidance published by any applicable federal,
state or local regulatory authority having jurisdiction over such matters, or
(ii) the enforceability thereof is limited (1) by bankruptcy, insolvency,
moratorium, receivership or other similar laws relating to creditor's rights or
(2) due to acceleration in connection with a foreclosure or other involuntary
payment. If a Prepayment Premium is waived other than as permitted above, then
the Servicer is required to pay the amount of such waived Prepayment Premium,
for the benefit of the Holders of the Class P Certificates, by depositing such
amount into the Collection Account together with and at the time that the amount
prepaid on the related Mortgage Loan is required to be deposited into the
Collection Account; provided, however, that the Servicer shall not have an
obligation to pay the amount of any uncollected Prepayment Premium if the
failure to collect such amount is the direct result of inaccurate or incomplete
information on the Mortgage Loan Schedule in effect at such time.
(b) The Servicer shall give notice to the Trustee, each Rating
Agency and the Depositor of any proposed change of the location of the
Collection Account within a reasonable period of time prior to any change
thereof.
Section 3.08 Subservicing Accounts. In those cases where a
Subservicer is servicing a Mortgage Loan pursuant to a Subservicing Agreement,
the Subservicer will be required to establish and maintain one or more accounts
(collectively, the "Subservicing Account"). The Subservicing Account shall be an
Eligible Account and shall otherwise be acceptable to the Servicer. The
Subservicer shall deposit in the clearing account (which account must be an
Eligible Account) in which it customarily deposits payments and collections on
mortgage loans in connection with its mortgage loan servicing activities on a
daily basis, and in no event more than one Business Day after the Subservicer's
receipt thereof, all proceeds of Mortgage Loans received by the Subservicer less
its servicing compensation to the extent permitted by the Subservicing
Agreement, and shall thereafter deposit such amounts in the Subservicing
Account, in no event more than two Business Days after the deposit of such funds
into the clearing account. The Subservicer shall thereafter deposit such
proceeds in the Collection Account of the Servicer or remit such proceeds to the
Servicer for deposit in the Collection Account of the Servicer not later than
two Business Days after the deposit of such amounts in the Subservicing Account.
For purposes of this Agreement, the Servicer shall be deemed to have received
payments on the Mortgage Loans when the Subservicer receives such payments.
Section 3.09 Collection of Taxes, Assessments and Similar
Items; Escrow Accounts. (a) The Servicer shall ensure that each of the related
Mortgage Loans shall be covered by a paid-in-full, life-of-the-loan tax service
contract in effect with respect to each related Mortgage Loan (each, a "Tax
Service Contract"). Each Tax Service Contract shall be assigned to the Trustee,
or its designee, at the Servicer's expense in the event that the Servicer is
terminated as Servicer of the related Mortgage Loan.
(b) To the extent that the services described in this
paragraph (b) are not otherwise provided pursuant to the Tax Service Contracts
described in paragraph (a) hereof, the Servicer undertakes to perform such
functions. To the extent the related Mortgage Loan provides for Escrow Payments,
the Servicer shall establish and maintain, or cause to be established and
maintained, one or more accounts (the "Escrow Accounts"), which shall be
Eligible Accounts. The Servicer shall deposit in the clearing account (which
account must be an Eligible Account) in which it customarily deposits payments
and collections on mortgage loans in connection with its mortgage loan servicing
activities on a daily basis, and in no event more than one Business Day after
the Servicer's receipt thereof, all collections from the Mortgagors (or related
advances from Subservicers) for the payment of taxes, assessments, hazard
insurance premiums and comparable items for the account of the Mortgagors
("Escrow Payments") collected on account of the Mortgage Loans and shall
thereafter deposit such Escrow Payments in the Escrow Accounts, in no event more
than two Business Days after the deposit of such funds in the clearing account,
for the purpose of effecting the payment of any such items as required under the
terms of this Agreement. Withdrawals of amounts from an Escrow Account may be
made only to (i) effect payment of taxes, assessments, hazard insurance
premiums, and comparable items; (ii) reimburse the Servicer (or a Subservicer to
the extent provided in the related Subservicing Agreement) out of related
collections for any advances made pursuant to Section 3.01 (with respect to
taxes and assessments) and Section 3.13 (with respect to hazard insurance);
(iii) refund to Mortgagors any sums as may be determined to be overages; (iv)
apply to the restoration or repair of the Mortgaged Property in accordance with
the Section 3.13; (v) transfer to the Collection Account and application to
reduce the principal balance of the Mortgage Loan in accordance with the terms
of the related Mortgage and Mortgage Note; (vi) pay interest to the Servicer
and, if required and as described below, to Mortgagors on balances in the Escrow
Account; (vii) clear and terminate the Escrow Account at the termination of the
Servicer's obligations and responsibilities in respect of the related Mortgage
Loans under this Agreement; or (viii) recover amounts deposited in error. As
part of its servicing duties, the Servicer or Subservicers shall pay to the
Mortgagors interest on funds in Escrow Accounts, to the extent required by law
and, to the extent that interest earned on funds in the Escrow Accounts is
insufficient, to pay such interest from its or their own funds, without any
reimbursement therefor. To the extent that a Mortgage does not provide for
Escrow Payments, the Servicer shall use commercially reasonable efforts
consistent with Accepted Servicing Practices to determine whether any such
payments are made by the Mortgagor in a manner and at a time that avoids the
loss of the Mortgaged Property due to a tax sale or the foreclosure as a result
of a tax lien. The Servicer assumes full responsibility for the payment of all
such bills within such time and shall effect payments of all such bills
irrespective of the Mortgagor's faithful performance in the payment of same or
the making of the Escrow Payments and shall make advances from its own funds to
effect such payments; provided, however, that such advances are deemed to be
Servicing Advances.
Section 3.10 Collection Account. (a) On behalf of the Trustee,
the Servicer shall establish and maintain, or cause to be established and
maintained, one or more Eligible Accounts (such account or accounts, the
"Collection Account"), held in trust for the benefit of the Trustee. On behalf
of the Trustee, the Servicer shall deposit or cause to be deposited in the
clearing account (which account must be an Eligible Account) in which it
customarily deposits payments and collections on mortgage loans in connection
with its mortgage loan servicing activities on a daily basis, and in no event
more than one Business Day after the Servicer's receipt thereof, and shall
thereafter deposit in the Collection Account, in no event more than two Business
Days after the deposit of such funds into the clearing account, as and when
received or as otherwise required hereunder, the following payments and
collections received or made by it subsequent to the Cut-off Date (other than in
respect of principal or interest on the related Mortgage Loans due on or before
the Cut-off Date), or payments (other than Principal Prepayments) received by it
on or prior to the related Cut-off Date but allocable to a Due Period subsequent
thereto:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest (net of the Servicing
Fee) on each Mortgage Loan;
(iii) all Insurance Proceeds and Condemnation Proceeds (to the
extent such Insurance Proceeds and Condemnation Proceeds are not to be
applied to the restoration of the related Mortgaged Property or released
to the related Mortgagor in accordance with the express requirements of
law or in accordance with prudent and customary servicing practices) and
all Liquidation Proceeds;
(iv) any amounts required to be deposited pursuant to Section
3.12 in connection with any losses realized on Permitted Investments with
respect to funds held in the Collection Account;
(v) any amounts required to be deposited by the Servicer
pursuant to the second paragraph of Section 3.13(a) in respect of any
blanket policy deductibles;
(vi) all proceeds of any Mortgage Loan repurchased or
purchased in accordance with this Agreement; and
(vii) all Prepayment Premiums collected by the Servicer.
The foregoing requirements for deposit in the Collection
Account shall be exclusive, it being understood and agreed that, without
limiting the generality of the foregoing, payments in the nature of late payment
charges, NSF fees, reconveyance fees, assumption fees and other similar fees and
charges need not be deposited by the Servicer in the Collection Account and
shall, upon collection, belong to the Servicer as additional compensation for
its servicing activities. In the event the Servicer shall deposit in the
Collection Account any amount not required to be deposited therein, it may at
any time withdraw such amount from the Collection Account, any provision herein
to the contrary notwithstanding.
(b) Funds in the Collection Account may be invested in
Permitted Investments in accordance with the provisions set forth in Section
3.12. The Servicer shall give notice to the Trustee and the Depositor of the
location of the Collection Account maintained by it when established and prior
to any change thereof.
Section 3.11 Withdrawals from the Collection Account. (a) The
Servicer shall, from time to time, make withdrawals from the Collection Account
for any of the following purposes or as described in Section 4.01:
(i) on or prior to the Remittance Date, to remit to the
Trustee (A) the Trustee Fee with respect to such Distribution Date and (B)
all Available Funds in respect of the related Distribution Date together
with all amounts representing Prepayment Premiums from the Mortgage Loans
received during the related Prepayment Period;
(ii) to reimburse the Servicer for P&I Advances, but only to
the extent of amounts received which represent Late Collections (net of
the related Servicing Fees) of Scheduled Payments on Mortgage Loans with
respect to which such P&I Advances were made in accordance with the
provisions of Section 4.01;
(iii) to pay the Servicer or any Subservicer (A) any unpaid
Servicing Fees or (B) any unreimbursed Servicing Advances with respect to
each Mortgage Loan, but only to the extent of any Late Collections,
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds or other
amounts as may be collected by the Servicer from a Mortgagor, or otherwise
received with respect to such Mortgage Loan (or the related REO Property);
(iv) to pay to the Servicer as servicing compensation (in
addition to the Servicing Fee) on the Remittance Date any interest or
investment income earned on funds deposited in the Collection Account;
(v) to pay to the Responsible Party, with respect to each
Mortgage Loan that has previously been repurchased or replaced pursuant to
this Agreement all amounts received thereon subsequent to the date of
purchase or substitution, as the case may be;
(vi) to reimburse the Servicer for (A) any P&I Advance or
Servicing Advance previously made which the Servicer has determined to be
a Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance in
accordance with the provisions of Section 4.01 and (B) any unpaid
Servicing Fees to the extent not recoverable from Liquidation Proceeds,
Insurance Proceeds or other amounts received with respect to the related
Mortgage Loan under Section 3.11(a)(iii);
(vii) to pay, or to reimburse the Servicer for advances in
respect of, expenses incurred in connection with any Mortgage Loan
pursuant to Section 3.15;
(viii) to reimburse the Servicer, the Depositor or the Trustee
for expenses incurred by or reimbursable to the Servicer, the Depositor or
the Trustee, as the case may be, pursuant to Section 6.03, Section 7.02 or
Section 8.05;
(ix) to reimburse the Servicer or the Trustee, as the case may
be, for expenses reasonably incurred in respect of the breach or defect
giving rise to the repurchase obligation under Section 2.03 of this
Agreement that were included in the Repurchase Price of the Mortgage Loan,
including any expenses arising out of the enforcement of the repurchase
obligation, to the extent not otherwise paid pursuant to the terms hereof;
(x) to withdraw any amounts deposited in the Collection
Account in error;
(xi) to withdraw any amounts held in the Collection Account
and not required to be remitted to the Trustee on the Remittance Date
occurring in the month in which such amounts are deposited into the
Collection Account, to reimburse the Servicer for xxxxxxxxxxxx X&X
Advances; and
(xii) to clear and terminate the Collection Account upon
termination of this Agreement.
To the extent that the Servicer does not timely make the
remittance referred to in clause (i) above, the Servicer shall pay the Trustee
for the account of the Trustee interest on any amount not timely remitted at the
prime rate, from and including the applicable Remittance Date to but excluding
the date such remittance is actually made.
(b) The Servicer shall keep and maintain separate accounting,
on a Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Collection Account, to the extent held by or on behalf of
it, pursuant to subclauses (a)(ii), (iii), (iv), (v), (vi), (vii), (viii) and
(ix) above. The Servicer shall provide written notification to the Depositor, on
or prior to the next succeeding Remittance Date, upon making any withdrawals
from the Collection Account pursuant to subclause (a)(vi) above.
Section 3.12 Investment of Funds in the Collection Account and
the Distribution Account. (a) The Servicer may invest the funds in the
Collection Account and the Trustee may invest funds in the Distribution Account
during the Trustee Float Period, and shall (except during the Trustee Float
Period), invest such funds in the Distribution Account at the direction of the
Depositor (for purposes of this Section 3.12, such Accounts are referred to as
an "Investment Account"), in one or more Permitted Investments bearing interest
or sold at a discount, and maturing, unless payable on demand no later than the
Business Day on which such funds are required to be withdrawn from such account
pursuant to this Agreement. All such Permitted Investments shall be held to
maturity, unless payable on demand. Any investment of funds in an Investment
Account shall be made in the name of the Trustee. The Trustee shall be entitled
to sole possession (except with respect to investment direction of funds held in
the related Account and any income and gain realized thereon in any Account
other than the Distribution Account during the Trustee Float Period) over each
such investment, and any certificate or other instrument evidencing any such
investment shall be delivered directly to the Trustee or its agent, together
with any document of transfer necessary to transfer title to such investment to
the Trustee. In the event amounts on deposit in an Investment Account are at any
time invested in a Permitted Investment payable on demand, the Trustee may:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an
amount equal to the lesser of (1) all amounts then payable
thereunder and (2) the amount required to be withdrawn on such
date; and
(y) demand payment of all amounts due thereunder that such
Permitted Investment would not constitute a Permitted
Investment in respect of funds thereafter on deposit in the
Investment Account.
(b) All income and gain realized from the investment of funds
deposited in the Collection Account and Escrow Account held by or on behalf of
the Servicer, shall be for the benefit of the Servicer and shall be subject to
its withdrawal in the manner set forth in Section 3.11. Any other benefit
derived from the Collection Account and Escrow Account associated with the
receipt, disbursement and accumulation of principal, interest, taxes, hazard
insurance, mortgage blanket insurance, and like sources, shall accrue to the
benefit of the Servicer, except that the Servicer shall not realize any economic
benefit from any forced charging of services. The Servicer shall deposit in the
Collection Account and Escrow Account the amount of any loss of principal
incurred in respect of any such Permitted Investment made with funds in such
accounts immediately upon realization of such loss.
(c) All income and gain realized from the investment of funds
deposited in the Distribution Account held by the Trustee, shall be for the
benefit of the Depositor (except for any income or gain realized from the
investment of funds on deposit in the Distribution Account during the Trustee
Float Period, which shall be for the benefit of the Trustee). The Depositor
shall deposit in the Distribution Account (except with respect to the Trustee
Float Period, in which case the Trustee shall deposit) the amount of any loss of
principal incurred in respect of any such Permitted Investment made with funds
in such accounts immediately upon realization of such loss.
(d) Except as otherwise expressly provided in this Agreement,
if any default occurs in the making of a payment due under any Permitted
Investment, or if a default occurs in any other performance required under any
Permitted Investment, the Trustee shall take such action as may be appropriate
to enforce such payment or performance, including the institution and
prosecution of appropriate proceedings.
(e) The Trustee or its Affiliates are permitted to receive
additional compensation that could be deemed to be in the Trustee's economic
self-interest for (i) serving as investment adviser, administrator, shareholder,
servicing agent, custodian or sub-custodian with respect to certain of the
Permitted Investments, (ii) using Affiliates to effect transactions in certain
Permitted Investments and (iii) effecting transactions in certain Permitted
Investments.
Section 3.13 Maintenance of Hazard Insurance, Errors and
Omissions and Fidelity Coverage. (a) The Servicer shall cause to be maintained
for each Mortgage Loan fire insurance with extended coverage on the related
Mortgaged Property in an amount which is at least equal to the least of (i) the
current principal balance of such Mortgage Loan, (ii) the amount necessary to
fully compensate for any damage or loss to the improvements that are a part of
such property on a replacement cost basis, (iii) the maximum insurable value of
the improvements which are a part of such Mortgaged Property, and (iv) the
amount determined by applicable federal or state law, in each case in an amount
not less than such amount as is necessary to avoid the application of any
coinsurance clause contained in the related hazard insurance policy. The
Servicer shall also cause to be maintained fire insurance with extended coverage
on each REO Property in an amount which is at least equal to the lesser of (i)
the maximum insurable value of the improvements which are a part of such
property and (ii) the outstanding principal balance of the related Mortgage Loan
at the time it became an REO Property, plus accrued interest at the Mortgage
Interest Rate and related Servicing Advances. The Servicer will comply in the
performance of this Agreement with all reasonable rules and requirements of each
insurer under any such hazard policies. Any amounts to be collected by any
Servicer under any such policies (other than amounts to be applied to the
restoration or repair of the property subject to the related Mortgage or amounts
to be released to the Mortgagor in accordance with the procedures that the
Servicer would follow in servicing loans held for its own account, subject to
the terms and conditions of the related Mortgage and Mortgage Note) shall be
deposited in the Collection Account, subject to withdrawal pursuant to Section
3.11. If the Mortgagor fails to provide Mortgage Loan hazard insurance coverage
after thirty (30) days of Servicer's written notification, the Servicer shall
put in place such hazard insurance coverage on the Mortgagor's behalf. Any
out-of-pocket expense or advance made by the Servicer on such force placed
hazard insurance coverage shall be deemed a Servicing Advance. Any cost incurred
by any Servicer in maintaining any such insurance shall not, for the purpose of
calculating distributions to the Trustee, be added to the unpaid principal
balance of the related Mortgage Loan, notwithstanding that the terms of such
Mortgage Loan so permit. It is understood and agreed that no earthquake or other
additional insurance is to be required of any Mortgagor other than pursuant to
such applicable laws and regulations as shall at any time be in force and as
shall require such additional insurance. If the Mortgaged Property or REO
Property is at any time in an area identified in the Federal Register by the
Federal Emergency Management Agency as having special flood hazards and flood
insurance has been made available, the Servicer will cause to be maintained a
flood insurance policy in respect thereof. Such flood insurance shall be in an
amount equal to the lesser of (i) the minimum amount required, under the terms
of coverage, to compensate for any damage or loss on a replacement cost basis
(or the unpaid principal balance of the related Mortgage Loan if replacement
cost coverage is not available for the type of building insured) and (ii) the
maximum amount of insurance which is available under the Flood Disaster
Protection Act of 1973, as amended. If at any time during the term of the
Mortgage Loan, the Servicer determines in accordance with applicable law and
pursuant to the Federal Emergency Management Agency Guides that a Mortgaged
Property is located in a special flood hazard area and is not covered by flood
insurance or is covered in an amount less than the amount required by the Flood
Disaster Protection Act of 1973, as amended, the Servicer shall notify the
related Mortgagor to obtain such flood insurance coverage, and if said Mortgagor
fails to obtain the required flood insurance coverage within forty-five (45)
days after such notification, the Servicer shall immediately force place the
required flood insurance on the Mortgagor's behalf. Any out-of-pocket expense or
advance made by the Servicer on such force placed flood insurance coverage shall
be deemed a Servicing Advance.
In the event that any Servicer shall obtain and maintain a
blanket policy with an insurer having a General Policy Rating of A:12 or better
in Best's (or such other rating that is comparable to such rating) insuring
against hazard losses on all of the Mortgage Loans, it shall conclusively be
deemed to have satisfied its obligations as set forth in the first two sentences
of this Section 3.13, it being understood and agreed that such policy may
contain a deductible clause, in which case the Servicer shall, in the event that
there shall not have been maintained on the related Mortgaged Property or REO
Property a policy complying with the first two sentences of this Section 3.13,
and there shall have been one or more losses which would have been covered by
such policy, deposit to the Collection Account from its own funds the amount not
otherwise payable under the blanket policy because of such deductible clause. In
connection with its activities as administrator and servicer of the Mortgage
Loans, the Servicer agrees to prepare and present, on behalf of itself, the
Trustee claims under any such blanket policy in a timely fashion in accordance
with the terms of such policy.
(b) The Servicer shall keep in force during the term of this
Agreement a policy or policies of insurance covering errors and omissions for
failure in the performance of the Servicer's obligations under this Agreement,
which policy or policies shall be in such form and amount that would meet the
requirements of Xxxxxx Xxx or Xxxxxxx Mac if it were the purchaser of the
Mortgage Loans, unless the Servicer has obtained a waiver of such requirements
from Xxxxxx Mae or Xxxxxxx Mac. The Servicer shall also maintain a fidelity bond
in the form and amount that would meet the requirements of Xxxxxx Mae or Xxxxxxx
Mac, unless the Servicer has obtained a waiver of such requirements from Xxxxxx
Mae or Xxxxxxx Mac. The Servicer shall provide the Trustee upon request with
copies of any such insurance policies and fidelity bond. The Servicer shall be
deemed to have complied with this provision if an Affiliate of the Servicer has
such errors and omissions and fidelity bond coverage and, by the terms of such
insurance policy or fidelity bond, the coverage afforded thereunder extends to
the Servicer. Any such errors and omissions policy and fidelity bond shall by
its terms not be cancelable without thirty days' prior written notice to the
Trustee. The Servicer shall also cause each Subservicer to maintain a policy of
insurance covering errors and omissions and a fidelity bond which would meet
such requirements.
Section 3.14 Enforcement of Due-on-Sale Clauses; Assumption
Agreements. The Servicer will, to the extent it has knowledge of any conveyance
or prospective conveyance of any Mortgaged Property by any Mortgagor (whether by
absolute conveyance or by contract of sale, and whether or not the Mortgagor
remains or is to remain liable under the Mortgage Note and/or the Mortgage),
exercise its rights to accelerate the maturity of such Mortgage Loan under the
"due-on-sale" clause, if any, applicable thereto; provided, however, that the
Servicer shall not be required to take such action if, in its sole business
judgment, the Servicer believes it is not in the best interests of the Trust
Fund and shall not exercise any such rights if prohibited by law from doing so.
If the Servicer reasonably believes it is unable under applicable law to enforce
such "due-on-sale" clause or if any of the other conditions set forth in the
proviso to the preceding sentence apply, the Servicer will enter into an
assumption and modification agreement from or with the person to whom such
property has been conveyed or is proposed to be conveyed, pursuant to which such
person becomes liable under the Mortgage Note, and, to the extent permitted by
applicable state law, the Mortgagor remains liable thereon. The Servicer is also
authorized to enter into a substitution of liability agreement with such person,
pursuant to which the original Mortgagor is released from liability and such
person is substituted as the Mortgagor and becomes liable under the Mortgage
Note; provided, that no such substitution shall be effective unless such person
satisfies the underwriting criteria of the Servicer and such substitution is in
the best interest of the Certificateholders as determined by the Servicer. In
connection with any assumption, modification or substitution, the Servicer shall
apply such underwriting standards and follow such practices and procedures as
shall be normal and usual in its general mortgage servicing activities and as it
applies to other mortgage loans owned solely by it. The Servicer shall not take
or enter into any assumption and modification agreement, however, unless (to the
extent practicable in the circumstances) it shall have received confirmation, in
writing, of the continued effectiveness of any applicable hazard insurance
policy, or a new policy meeting the requirements of this Section is obtained.
Any fee collected by the Servicer in respect of an assumption or substitution of
liability agreement will be retained by the Servicer as additional servicing
compensation. In connection with any such assumption, no material term of the
Mortgage Note (including but not limited to the related Mortgage Interest Rate
and the amount of the Scheduled Payment) may be amended or modified, except as
otherwise required pursuant to the terms thereof. The Servicer shall notify the
Trustee that any such substitution, modification or assumption agreement has
been completed by forwarding to the Trustee the executed original of such
substitution or assumption agreement, which document shall be added to the
related Mortgage File and shall, for all purposes, be considered a part of such
Mortgage File to the same extent as all other documents and instruments
constituting a part thereof.
Notwithstanding the foregoing paragraph or any other provision
of this Agreement, the Servicer shall not be deemed to be in default, breach or
any other violation of its obligations hereunder by reason of any assumption of
a Mortgage Loan by operation of law or by the terms of the Mortgage Note or any
assumption which the Servicer may be restricted by law from preventing, for any
reason whatsoever. For purposes of this Section 3.14, the term "assumption" is
deemed to also include a sale (of the Mortgaged Property) subject to the
Mortgage that is not accompanied by an assumption or substitution of liability
agreement.
Section 3.15 Realization upon Defaulted Mortgage Loans. The
Servicer shall use its best efforts, consistent with Accepted Servicing
Practices, to foreclose upon or otherwise comparably convert (which may include
an acquisition of REO Property) the ownership of properties securing such of the
Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments
pursuant to Section 3.07, and which are not released from this Agreement
pursuant to any other provision hereof. The Servicer shall use reasonable
efforts to realize upon such defaulted Mortgage Loans in such manner as will
maximize the receipt of principal and interest by the Trustee, taking into
account, among other things, the timing of foreclosure proceedings. The
foregoing is subject to the provisions that, in any case in which a Mortgaged
Property shall have suffered damage from an uninsured cause, the Servicer shall
not be required to expend its own funds toward the restoration of such property
unless it shall determine in its sole discretion (i) that such restoration will
increase the net proceeds of liquidation of the related Mortgage Loan to the
Trustee, after reimbursement to itself for such expenses, and (ii) that such
expenses will be recoverable by the Servicer through Insurance Proceeds,
Condemnation Proceeds or Liquidation Proceeds from the related Mortgaged
Property, as contemplated in Section 3.11. The Servicer shall be responsible for
all other costs and expenses incurred by it in any such proceedings; provided,
however, that it shall be entitled to reimbursement thereof from the related
property, as contemplated in Section 3.11.
The proceeds of any Liquidation Event or REO Disposition, as
well as any recovery resulting from a partial collection of Insurance Proceeds,
Condemnation Proceeds or Liquidation Proceeds or any income from an REO
Property, will be applied in the following order of priority: first, to
reimburse the Servicer or any Subservicer for any related unreimbursed Servicing
Advances, pursuant to Section 3.11 or 3.17; second, to accrued and unpaid
interest on the Mortgage Loan or REO Imputed Interest, at the Mortgage Interest
Rate, to the date of the liquidation or REO Disposition, or to the Due Date
prior to the Remittance Date on which such amounts are to be distributed if not
in connection with a Liquidation Event or REO Disposition; third, to reimburse
any Servicer for any related xxxxxxxxxxxx X&X Advances, pursuant to Section
3.11; and fourth, as a recovery of principal of the Mortgage Loan. If the amount
of the recovery so allocated to interest is less than a full recovery thereof,
that amount will be allocated as follows: first, to unpaid Servicing Fees; and
second, as interest at the Mortgage Interest Rate (net of the Servicing Fee
Rate). The portion of the recovery so allocated to unpaid Servicing Fees shall
be reimbursed to the Servicer or any Subservicer pursuant to Section 3.11 or
3.17. The portions of the recovery so allocated to interest at the Mortgage
Interest Rate (net of the Servicing Fee Rate) and to principal of the Mortgage
Loan shall be applied as follows: first, to reimburse the Servicer or any
Subservicer for any related unreimbursed Servicing Advances in accordance with
Section 3.11 or 3.17, and second, to the Trustee in accordance with the
provisions of Section 4.02, subject to the last paragraph of Section 3.17 with
respect to certain excess recoveries from an REO Disposition.
Notwithstanding anything to the contrary contained herein, in
connection with a foreclosure or acceptance of a deed in lieu of foreclosure, in
the event the Servicer has received actual notice of, or has actual knowledge of
the presence of, hazardous or toxic substances or wastes on the related
Mortgaged Property, or if the Trustee otherwise requests, the Servicer shall
cause an environmental inspection or review of such Mortgaged Property to be
conducted by a qualified inspector. Upon completion of the inspection, the
Servicer shall promptly provide the Trustee and the Depositor with a written
report of the environmental inspection.
After reviewing the environmental inspection report, the
Depositor shall determine how the Servicer shall proceed with respect to the
Mortgaged Property. In the event (a) the environmental inspection report
indicates that the Mortgaged Property is contaminated by hazardous or toxic
substances or wastes and (b) the Depositor directs the Servicer to proceed with
foreclosure or acceptance of a deed in lieu of foreclosure, the Servicer shall
be reimbursed for all reasonable costs associated with such foreclosure or
acceptance of a deed in lieu of foreclosure and any related environmental
clean-up costs, as applicable, from the related Liquidation Proceeds, or if the
Liquidation Proceeds are insufficient to fully reimburse the Servicer, the
Servicer shall be entitled to be reimbursed from amounts in the Collection
Account pursuant to Section 3.11. In the event the Depositor directs the
Servicer not to proceed with foreclosure or acceptance of a deed in lieu of
foreclosure, the Servicer shall be reimbursed from general collections for all
Servicing Advances made with respect to the related Mortgaged Property from the
Collection Account pursuant to Section 3.11. The Trustee shall not be
responsible for any direction given by the Depositor to the Servicer pursuant to
this paragraph.
Section 3.16 Release of Mortgage Files. (a) Upon the payment
in full of any Mortgage Loan, or the receipt by the Servicer of a notification
that payment in full shall be escrowed in a manner customary for such purposes,
the Servicer will, within five (5) Business Days of the payment in full, notify
the Trustee by a certification (which certification shall include a statement to
the effect that all amounts received or to be received in connection with such
payment which are required to be deposited in the Collection Account pursuant to
Section 3.10 have been or will be so deposited) of a Servicing Officer and shall
request delivery to it of the Custodial File by completing a Request for
Release. Upon receipt of such certification and Request for Release, the Trustee
shall promptly release the related Custodial File to the Servicer within three
(3) Business Days. No expenses incurred in connection with any instrument of
satisfaction or deed of reconveyance shall be chargeable to the Collection
Account.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan, including, for this purpose, collection under
any Insurance Policy relating to the Mortgage Loans, the Trustee shall, upon
request of the Servicer and delivery to the Trustee, of a Request for Release,
release the related Custodial File to the Servicer, and the Trustee shall, at
the direction of the Servicer, execute such documents provided to it as shall be
necessary to the prosecution of any such proceedings and the Servicer shall
retain the Mortgage File in trust for the benefit of the Trustee. Such Request
for Release shall obligate the Servicer to return each and every document
previously requested from the Custodial File to the Trustee when the need
therefor by the Servicer no longer exists, unless the Mortgage Loan has been
liquidated and the Liquidation Proceeds relating to the Mortgage Loan have been
deposited in the Collection Account or the Mortgage File or such document has
been delivered to an attorney, or to a public trustee or other public official
as required by law, for purposes of initiating or pursuing legal action or other
proceedings for the foreclosure of the Mortgaged Property either judicially or
non-judicially, and the Servicer has delivered to the Trustee a certificate of a
Servicing Officer certifying as to the name and address of the Person to which
such Mortgage File or such document was delivered and the purpose or purposes of
such delivery. Upon receipt of a certificate of a Servicing Officer stating that
such Mortgage Loan was liquidated and that all amounts received or to be
received in connection with such liquidation that are required to be deposited
into the Collection Account have been so deposited, or that such Mortgage Loan
has become an REO Property, a copy of the Request for Release shall be released
by the Trustee to the Servicer or its designee. Upon receipt of a Request for
Release under this Section 3.16, the Trustee shall deliver the related Custodial
File to the Servicer by regular mail, unless the Servicer requests that the
Trustee deliver such Custodial File to the Servicer by overnight courier (in
which case such delivery shall be at the Servicer's expense); provided, however,
that in the event the Servicer has not previously received copies of the
relevant Mortgage Loan Documents necessary to service the related Mortgage Loan
in accordance with Accepted Servicing Practices, the Responsible Party shall
reimburse the Servicer for any overnight courier charges incurred for the
requested Custodial Files.
Upon written certification of a Servicing Officer, the Trustee
shall execute and deliver to any Servicer copies of any court pleadings,
requests for trustee's sale or other documents reasonably necessary to the
foreclosure or trustee's sale in respect of a Mortgaged Property or to any legal
action brought to obtain judgment against any Mortgagor on the Mortgage Note or
Mortgage or to obtain a deficiency judgment, or to enforce any other remedies or
rights provided by the Mortgage Note or Mortgage or otherwise available at law
or in equity, or shall exercise and deliver to the Servicer a power of attorney
sufficient to authorize the Servicer to execute such documents on its behalf.
Each such certification shall include a request that such pleadings or documents
be executed by the Trustee and a statement as to the reason such documents or
pleadings are required and that the execution and delivery thereof by the
Trustee will not invalidate or otherwise affect the lien of the Mortgage, except
for the termination of such a lien upon completion of the foreclosure or
trustee's sale.
Section 3.17 Title, Conservation and Disposition of REO
Property. (a) This Section shall apply only to REO Properties acquired for the
account of the Trustee and shall not apply to any REO Property relating to a
Mortgage Loan which was purchased or repurchased from the Trustee pursuant to
any provision hereof. In the event that title to any such REO Property is
acquired, the Servicer shall cause the deed or certificate of sale to be issued
in the name of the Trustee, on behalf of the Certificateholders, or the
Trustee's nominee.
(b) The Servicer shall manage, conserve, protect and operate
each REO Property for the Trustee solely for the purpose of its prompt
disposition and sale. The Servicer, either itself or through an agent selected
by the Servicer, shall manage, conserve, protect and operate the REO Property in
the same manner that it manages, conserves, protects and operates other
foreclosed property for its own account, and in the same manner that similar
property in the same locality as the REO Property is managed. The Servicer shall
attempt to sell the same (and may temporarily rent the same for a period not
greater than one year, except as otherwise provided below) on such terms and
conditions as the Servicer deems to be in the best interest of the Trustee.
(c) The Servicer shall use Accepted Servicing Practices, to
dispose of the REO Property as soon as possible and shall sell such REO Property
in any event within three years after title has been taken to such REO Property,
unless the Servicer determines, and gives an appropriate notice to the Trustee
to such effect, that a longer period is necessary for the orderly liquidation of
such REO Property. The Trustee has no obligation with respect to REO
Dispositions.
(d) The Servicer shall segregate and hold all funds collected
and received in connection with the operation of any REO Property separate and
apart from its own funds and general assets and shall deposit such funds in the
Collection Account.
(e) The Servicer shall deposit net of reimbursement to the
Servicer for any related outstanding Servicing Advances and unpaid Servicing
Fees provided in Section 3.11, or cause to be deposited, on a daily basis in the
Collection Account all revenues received with respect to the related REO
Property and shall withdraw therefrom funds necessary for the proper operation,
management and maintenance of the REO Property.
(f) The Servicer, upon an REO Disposition, shall be entitled
to reimbursement for any related unreimbursed Servicing Advances as well as any
unpaid Servicing Fees from proceeds received in connection with the REO
Disposition, as further provided in Section 3.11.
(g) Any net proceeds from an REO Disposition which are in
excess of the unpaid principal balance of the related Mortgage Loan plus all
unpaid REO Imputed Interest thereon through the date of the REO Disposition
shall be retained by the Servicer as additional servicing compensation.
(h) The Servicer shall use Accepted Servicing Practices, to
sell, or cause the Subservicer to sell, any REO Property as soon as possible,
but in no event later than the conclusion of the third calendar year beginning
after the year of its acquisition by the REMIC unless (i) the Servicer applies
for an extension of such period from the Internal Revenue Service pursuant to
the REMIC Provisions and Code Section 856(e)(3), in which event such REO
Property shall be sold within the applicable extension period, or (ii) the
Servicer obtains for the Trustee an Opinion of Counsel, addressed to the
Depositor, the Trustee and the Servicer, to the effect that the holding by the
Pooling-Tier REMIC of such REO Property subsequent to such period will not
result in the imposition of taxes on "prohibited transactions" as defined in
Section 860F of the Code or cause any Trust REMIC to fail to qualify as a REMIC
under the REMIC Provisions or comparable provisions of relevant state laws at
any time. The Servicer shall manage, conserve, protect and operate each REO
Property for the Trustee solely for the purpose of its prompt disposition and
sale in a manner which does not cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) or result in the
receipt by the Pooling-Tier REMIC of any "income from non-permitted assets"
within the meaning of Section 860F(a)(2)(B) of the Code or any "net income from
foreclosure property" which is subject to taxation under Section 860G(a)(1) of
the Code. Pursuant to its efforts to sell such REO Property, the Servicer shall
either itself or through an agent selected by the Servicer protect and conserve
such REO Property in the same manner and to such extent as is customary in the
locality where such REO Property is located and may, incident to its
conservation and protection of the interests of the Trustee on behalf of the
Certificateholders, rent the same, or any part thereof, as the Servicer deems to
be in the best interest of the Trustee on behalf of the Certificateholders for
the period prior to the sale of such REO Property; provided, however, that any
rent received or accrued with respect to such REO Property qualifies as "rents
from real property" as defined in Section 856(d) of the Code.
Section 3.18 Notification of Adjustments. With respect to each
Mortgage Loan, the Servicer shall adjust the Mortgage Interest Rate on the
related Adjustment Date and shall adjust the Scheduled Payment on the related
mortgage payment adjustment date, if applicable, in compliance with the
requirements of applicable law and the related Mortgage and Mortgage Note. The
Servicer shall execute and deliver any and all necessary notices required under
applicable law and the terms of the related Mortgage Note and Mortgage regarding
the Mortgage Interest Rate and Scheduled Payment adjustments. The Servicer shall
promptly, upon written request therefor, deliver to the Trustee such
notifications and any additional applicable data regarding such adjustments and
the methods used to calculate and implement such adjustments. Upon the discovery
by the Servicer or the receipt of notice from the Trustee that the Servicer has
failed to adjust a Mortgage Interest Rate or Scheduled Payment in accordance
with the terms of the related Mortgage Note, the Servicer shall deposit in the
Collection Account from its own funds the amount of any interest loss caused as
such interest loss occurs.
Section 3.19 Access to Certain Documentation and Information
Regarding the Mortgage Loans. The Servicer shall provide, or cause the
Subservicer to provide, to the Depositor, the Trustee, the OTS or the FDIC and
the examiners and supervisory agents thereof access to the documentation
regarding the Mortgage Loans in its possession required by applicable
regulations of the OTS. Such access shall be afforded without charge, but only
upon 15 days' (or , if an Event of Default has occurred and is continuing, 2
days') prior written request and during normal business hours at the offices of
the Servicer, the Depositor, the Trustee or any Subservicer. Nothing in this
Section shall derogate from the obligation of any such party to observe any
applicable law prohibiting disclosure of information regarding the Mortgagors
and the failure of any such party to provide access as provided in this Section
as a result of such obligation shall not constitute a breach of this Section.
Section 3.20 Documents, Records and Funds in Possession of the
Servicer to Be Held for the Trustee. The Servicer shall account fully to the
Trustee for any funds received by the Servicer or which otherwise are collected
by the Servicer as Liquidation Proceeds, Condemnation Proceeds or Insurance
Proceeds in respect of any Mortgage Loan. All Mortgage Files and funds collected
or held by, or under the control of, the Servicer in respect of any Mortgage
Loans, whether from the collection of principal and interest payments or from
Liquidation Proceeds, including, but not limited to, any funds on deposit in the
Collection Account, shall be held by the Servicer for and on behalf of the
Trustee and shall be and remain the sole and exclusive property of the Trustee,
subject to the applicable provisions of this Agreement. The Servicer also agrees
that it shall not create, incur or subject any Mortgage File or any funds that
are deposited in the Collection Account, the Distribution Account or any Escrow
Account, or any funds that otherwise are or may become due or payable to the
Trustee for the benefit of the Certificateholders, to any claim, lien, security
interest, judgment, levy, writ of attachment or other encumbrance, or assert by
legal action or otherwise any claim or right of setoff against any Mortgage File
or any funds collected on, or in connection with, a Mortgage Loan, except,
however, that the Servicer shall be entitled to set off against and deduct from
any such funds any amounts that are properly due and payable to the Servicer
under this Agreement.
Section 3.21 Servicing Compensation. (a) As compensation for
its activities hereunder, the Servicer shall, with respect to each Mortgage
Loan, be entitled to retain from deposits to the Collection Account and from
Liquidation Proceeds, Insurance Proceeds, and Condemnation Proceeds related to
such Mortgage Loan, the Servicing Fee with respect to each Mortgage Loan (less
any portion of such amounts retained by any Subservicer). In addition, the
Servicer shall be entitled to recover unpaid Servicing Fees out of related late
collections and as otherwise permitted in Section 3.11. Except as provided in
Section 6.06, the right to receive the Servicing Fee may not be transferred in
whole or in part except in connection with the transfer of all of the Servicer's
responsibilities and obligations under this Agreement; provided, however, that
the Servicer may pay from the Servicing Fee any amounts due to a Subservicer
pursuant to a Subservicing Agreement entered into under Section 3.02.
(b) Additional servicing compensation in the form of
assumption or modification fees, late payment charges, NSF fees, reconveyance
fees and other similar fees and charges (other than Prepayment Premiums) shall
be retained by the Servicer only to the extent such fees or charges are received
by the Servicer. The Servicer shall also be entitled pursuant to Sections
3.09(b)(vi) and 3.11(a)(iv) to withdraw from the Collection Account, as
additional servicing compensation, interest or other income earned on deposits
therein.
(c) The Servicer shall be required to pay all expenses
incurred by it in connection with its servicing activities hereunder (including
payment of premiums for any blanket policy insuring against hazard losses
pursuant to Section 3.13, servicing compensation of the Subservicer to the
extent not retained by it and the fees and expenses of independent accountants
and any agents appointed by the Servicer), and shall not be entitled to
reimbursement therefor except as specifically provided in Section 3.11.
Section 3.22 Annual Statement as to Compliance. The Servicer
will deliver or cause to be delivered to the Depositor, the Rating Agencies and
the Trustee on or before March 15th of each calendar year, commencing in 2004,
an Officer's Certificate stating, as to each signatory thereof, that (i) a
review of the activities of the Servicer during the preceding calendar year and
of performance under this Agreement or a similar agreement has been made under
such officers' supervision, and (ii) to the best of such officers' knowledge,
based on such review, the Servicer has fulfilled all of its obligations under
this Agreement throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officers and the nature and status thereof. Promptly after receipt of such
Officer's Certificate, the Depositor shall review such Officer's Certificate
and, if applicable, consult with the Servicer as to the nature of any defaults
by the Servicer in the fulfillment of any of the Servicer's obligations.
Section 3.23 Annual Independent Public Accountants' Servicing
Statement; Financial Statements. Not later than March 15th of each calendar year
commencing in 2004, the Servicer, at its expense, shall cause a nationally
recognized firm of independent certified public accountants to furnish to the
Depositor, the Rating Agencies and the Trustee a report stating that (i) it has
obtained a letter of representation regarding certain matters from the
management of the Servicer which includes an assertion that the Servicer has
complied with certain minimum residential mortgage loan servicing standards,
identified in the Uniform Single Attestation Program for Mortgage Bankers
established by the Mortgage Bankers Association of America, with respect to the
servicing of residential mortgage loans during the most recently completed
calendar year and (ii) on the basis of an examination conducted by such firm in
accordance with standards established by the American Institute of Certified
Public Accountants, such representation is fairly stated in all material
respects, subject to such exceptions and other qualifications that may be
appropriate. In rendering its report such firm may rely, as to matters relating
to the direct servicing of residential mortgage loans by Subservicers, upon
comparable reports of firms of independent certified public accountants rendered
on the basis of examinations conducted in accordance with the same standards
(rendered within one year of such report) with respect to those Subservicers.
Promptly after receipt of such report, the Depositor shall review such report
and, if applicable, consult with the Servicer as to the nature of any defaults
by the Servicer in the fulfillment of any of the Servicer's obligations.
Section 3.24 Trustee to Act as Servicer. (a) In the event that
the Servicer shall for any reason no longer be the Servicer hereunder (including
by reason of an Event of Default), the Trustee or its successor shall, thereupon
assume all of the rights and obligations of the Servicer hereunder arising
thereafter (except that the Trustee shall not be (i) liable for losses of such
predecessor Servicer pursuant to Section 3.10 or any acts or omissions of such
predecessor Servicer hereunder, (ii) obligated to make Advances if it is
prohibited from doing so by applicable law, (iii) obligated to effectuate
repurchases or substitutions of Mortgage Loans hereunder, including but not
limited to repurchases or substitutions pursuant to Section 2.03, (iv)
responsible for expenses of the Servicer pursuant to Section 2.03 or (v) deemed
to have made any representations and warranties of the Servicer hereunder). Any
such assumption shall be subject to Section 7.02.
(b) Every Subservicing Agreement entered into by the Servicer
shall contain a provision giving the successor Servicer the option to terminate
such agreement in the event a successor Servicer is appointed.
(c) If the Servicer shall for any reason no longer be the
Servicer (including by reason of any Event of Default), the Trustee (or any
other successor Servicer) may, at its option, succeed to any rights and
obligations of the Servicer under any Subservicing Agreement in accordance with
the terms thereof; provided, that the Trustee (or any other successor Servicer)
shall not incur any liability or have any obligations in its capacity as
successor Servicer under a Subservicing Agreement arising prior to the date of
such succession unless it expressly elects to succeed to the rights and
obligations of the Servicer thereunder; and the Servicer shall not thereby be
relieved of any liability or obligations under the Subservicing Agreement
arising prior to the date of such succession.
(d) The Servicer shall, upon request of the Trustee, but at
the expense of the Servicer, deliver to the assuming party all documents and
records relating to each Subservicing Agreement (if any) and the Mortgage Loans
then being serviced thereunder and an accounting of amounts collected and held
by it and otherwise use its best efforts to effect the orderly and efficient
transfer of the Subservicing Agreement to the assuming party.
Section 3.25 Compensating Interest. The Servicer shall remit
to the Trustee on each Remittance Date an amount from its own funds equal to
Compensating Interest payable by the Servicer for such Remittance Date.
Section 3.26 Credit Reporting; Xxxxx-Xxxxx-Xxxxxx Act. (a)
With respect to each Mortgage Loan, the Servicer shall fully furnish, in
accordance with the Fair Credit Reporting Act and its implementing regulations,
accurate and complete information (e.g., favorable and unfavorable) on the
related Mortgagor credit files to three of the national credit repositories, on
a monthly basis. (b) The Servicer shall comply with Title V of the
Xxxxx-Xxxxx-Xxxxxx Act of 1999 and all applicable regulations promulgated
thereunder, relating to the Mortgage Loans and the related borrowers and shall
provide all required notices thereunder.
Section 3.27 Excess Reserve Fund Account; Distribution
Account. (a) The Trustee shall establish and maintain the Excess Reserve Fund
Account, on behalf of the Class X Certificateholders, to receive any Basis Risk
Payment and any Interest Rate Cap Payments and to pay to the Offered
Certificateholders any Basis Risk Carry Forward Amounts. On each Distribution
Date, the Trustee shall deposit the amount of any Interest Rate Cap Payments 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 of Offered Certificates, the Trustee shall (1)
withdraw from the Distribution Account and deposit in the Excess Reserve Fund
Account, as set forth in Section 4.02(a)(iii)(E), the lesser of the Class X
Distributable Amount (to the extent remaining after the distributions specified
in Sections 4.02(a)(iii)(A)-(D)) and the aggregate Basis Risk Carry Forward
Amount and (2) withdraw from the Excess Reserve Fund Account amounts necessary
to pay to such Class or Classes of Certificates the applicable Basis Risk Carry
Forward Amounts. Such payments shall be allocated to those Classes based upon
the amount of Basis Risk Carry Forward Amount owed to each such Class and shall
be paid in the priority set forth in Sections 4.02(a)(iii)(F)-(G). In the event
that the Certificate Balance of any Class of Certificates is permanently reduced
because of Applied Realized Loss Amounts, the applicable Certificateholders will
not be entitled to receive Basis Risk Carry Forward Amounts on the written down
amounts on such Distribution Date or any future Distribution Dates, even if
funds are otherwise available for distribution.
The Trustee shall account for the Excess Reserve Fund Account
as an outside reserve fund within the meaning of Treasury Regulations Section
1.860G-2(h) and not as an asset of any Trust REMIC created pursuant to this
Agreement. The beneficial owners of the Excess Reserve Fund Account are the
Class X Certificateholders. For all federal income tax purposes, amounts
transferred by the Upper-Tier REMIC to the Excess Reserve Fund Account shall be
treated as first distributed by the Trustee to the Class X Certificateholders in
respect of the Class X Interest, and then contributed by the Class X
Certificateholders to the Excess Reserve Fund Account.
Any Basis Risk Carry Forward Amounts paid by the Trustee to
the Offered Certificateholders shall be accounted for by the Trustee as amounts
paid first to the Holders of the Class X Certificates and then to the respective
Class or Classes of Offered Certificates. In addition, the Trustee shall account
for the rights of Holders of each Class of Offered Certificates to receive
payments of Basis Risk Carry Forward Amounts as rights in a separate limited
recourse interest rate cap contract written by the Class X Certificateholders in
favor of Holders of each such Class.
Notwithstanding any provision contained in this Agreement, the
Trustee shall not be required to make any payments from the Excess Reserve Fund
Account except as expressly set forth in this Section 3.27(a).
(b) The Trustee shall establish and maintain the Distribution
Account on behalf of the Certificateholders. The Trustee shall, promptly upon
receipt on the Business Day received, deposit in the Distribution Account and
retain therein the following:
(i) the aggregate amount remitted by the Servicer to the Trustee
pursuant to Section 3.11;
(ii) any amount deposited by the Servicer pursuant to Section
3.12(b) in connection with any losses on Permitted Investments; and
(iii) any other amounts deposited hereunder which are required to be
deposited in the Distribution Account.
In the event that the Servicer shall remit any amount not
required to be remitted, the Servicer may at any time direct the Trustee in
writing to withdraw such amount from the Distribution Account, any provision
herein to the contrary notwithstanding. Such direction may be accomplished by
delivering notice to the Trustee which describes the amounts deposited in error
in the Distribution Account. All funds deposited in the Distribution Account
shall be held by the Trustee in trust for the Certificateholders until disbursed
in accordance with this Agreement or withdrawn in accordance with Section 4.02.
Section 3.28 Optional Purchase of Delinquent Mortgage Loans.
The Depositor, in its sole discretion, shall have the option, but shall not be
obligated, to purchase any 90+ Delinquent Mortgage Loans from the Trust Fund.
The purchase price for any such Mortgage Loan shall be 100% of the unpaid
principal balance of such Mortgage Loan plus accrued and unpaid interest on the
related Mortgage Loan at the applicable Mortgage Interest Rate, plus the amount
of any unreimbursed Servicing Advances made by the Servicer. Upon receipt of
such purchase price, the Servicer shall provide to the Trustee a Request for
Release and the Trustee shall promptly release to the Depositor, the Mortgage
File relating to the Mortgage Loan being repurchased.
Section 3.29 Transfer of Servicing for the Mortgage Loans.
Prior to the Servicing Transfer Date, Accredited shall have complied with each
of the servicing transfer requirements in accordance with customary industry
procedures.
ARTICLE IV
DISTRIBUTIONS AND
ADVANCES BY THE SERVICER
Section 4.01 Advances. (a) The amount of P&I Advances to be
made by the Servicer for any Remittance Date shall equal, subject to Section
4.01(c), the sum of (i) the aggregate amount of Scheduled Payments (with each
interest portion thereof net of the Servicing Fee), due during the Due Period
immediately preceding such Remittance Date in respect of the Mortgage Loans,
which Scheduled Payments were not received as of the close of business on the
related Determination Date, plus (ii) with respect to each REO Property, which
REO Property was acquired during or prior to the related Prepayment Period and
as to which such REO Property an REO Disposition did not occur during the
related Prepayment Period, an amount equal to the excess, if any, of the
Scheduled Payments (with REO Imputed Interest) that would have been due on the
related Due Date in respect of the related Mortgage Loan, over the net income
from such REO Property transferred to the Collection Account for distribution on
such Remittance Date.
(b) On the Remittance Date, the Servicer shall remit in
immediately available funds to the Trustee an amount equal to the aggregate
amount of P&I Advances, if any, to be made in respect of the Mortgage Loans and
REO Properties for the related Remittance Date either (i) from its own funds or
(ii) from the Collection Account, to the extent of funds held therein for future
distribution (in which case, it will cause to be made an appropriate entry in
the records of the Collection Account that Amounts Held for Future Distribution
have been, as permitted by this Section 4.01, used by the Servicer in discharge
of any such P&I Advance) or (iii) in the form of any combination of (i) and (ii)
aggregating the total amount of P&I Advances to be made by the Servicer with
respect to the Mortgage Loans and REO Properties. Any Amounts Held for Future
Distribution and so used shall be appropriately reflected in the Servicer's
records and replaced by the Servicer by deposit in the Collection Account on or
before any future Remittance Date to the extent required.
(c) The obligation of the Servicer to make such P&I Advances
is mandatory, notwithstanding any other provision of this Agreement but subject
to (d) below, and, with respect to any Mortgage Loan or REO Property, shall
continue until a Final Recovery Determination in connection therewith or the
removal thereof from coverage under this Agreement, except as otherwise provided
in this Section.
(d) Notwithstanding anything herein to the contrary, no P&I
Advance or Servicing Advance shall be required to be made hereunder by the
Servicer if such P&I Advance or Servicing Advance would, if made, constitute a
Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance. The
determination by the Servicer that it has made a Nonrecoverable P&I Advance or a
Nonrecoverable Servicing Advance or that any proposed P&I Advance or Servicing
Advance, if made, would constitute a Nonrecoverable P&I Advance or a
Nonrecoverable Servicing Advance, respectively, shall be evidenced by an
Officer's Certificate of the Servicer delivered to the Trustee.
(e) Except as otherwise provided herein, the Servicer shall be
entitled to reimbursement pursuant to Section 3.11 for Advances from recoveries
from the related Mortgagor or from all Liquidation Proceeds and other payments
or recoveries (including Insurance Proceeds and Condemnation Proceeds) with
respect to the related Mortgage Loan.
Section 4.02 Priorities of Distribution. (a) On each
Distribution Date, the Trustee shall make the disbursements and transfers from
amounts then on deposit in the Distribution Account in the following order of
priority and to the extent of the Available Funds remaining:
(i) to the holders of each Class of Offered Certificates in
the following order of priority:
(A) to the Class A Certificates, the related Accrued
Certificate Interest Distribution Amount and any Unpaid
Interest Amounts for such Distribution Date, allocated in
accordance with clauses (iv) and (v) of this Section 4.02(a);
(B) to the Class M-1 Certificates, the Accrued
Certificate Interest Distribution Amount for such Class on
such Distribution Date;
(C) to the Class M-2 Certificates, the Accrued
Certificate Interest Distribution Amount for such Class on
such Distribution Date;
(D) to the Class B-1 Certificates, the Accrued
Certificate Interest Distribution Amount for such Class on
such Distribution Date; and
(E) to the Class B-2 Certificates, the Accrued
Certificate Interest Distribution Amount for such Class on
such Distribution Date;
(ii) (A) on each Distribution Date (a) before the Stepdown
Date or (b) with respect to which a Trigger Event is in effect, to
the holders of the related Class or Classes of LIBOR Certificates
then entitled to distributions of principal as set forth below, from
amounts remaining on deposit in the Distribution Account after
making distributions pursuant to clause (i) above, an amount equal
to the Principal Distribution Amount in the following order of
priority:
(a) to the Class A LIBOR Certificates, allocated as
described in Section 4.02(c), until the respective Class
Certificate Balances thereof are 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 the
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 related Class or Classes of LIBOR Certificates
then entitled to distribution of principal, from amounts remaining
on deposit in the Distribution Account after making distributions
pursuant to clause (i) above, an amount equal to, the Principal
Distribution Amount in the following amounts and order of priority:
(a) the lesser of (x) the Principal Distribution Amount
and (y) the Class A Principal Distribution Amount to the Class
A LIBOR Certificates, allocated as described in Section
4.02(c), until the respective Class Certificate Balances
thereof are reduced to zero;
(b) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the
Class A LIBOR Certificates in clause (ii)(B)(a) above and (y)
the Class M-1 Principal Distribution Amount to the Class M-1
Certificates, until the Class Certificate Balance thereof has
been reduced to zero;
(c) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the
Class A LIBOR Certificates in clause (ii)(B)(a) above, to the
Class M-1 Certificates in clause (ii)(B)(b) above and (y) the
Class M-2 Principal Distribution Amount to the Class M-2
Certificates, until the Class Certificate Balance thereof has
been reduced to zero;
(d) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the
Class A LIBOR 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 (y) the
Class B-1 Principal Distribution Amount to the Class B-1
Certificates, until the Class Certificate Balance thereof has
been reduced to zero; and
(e) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the
Class A LIBOR 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 to the Class B-2
Certificates, 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 Amounts for such Class;
(B) to the holders of the Class M-2 Certificates, any
Unpaid Interest Amounts for such Class;
(C) to the holders of the Class B-1 Certificates, any
Unpaid Interest Amounts for such Class;
(D) to the holders of the Class B-2 Certificates, any
Unpaid Interest Amounts 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 any Interest Rate Cap Payments included
in such account), an amount equal to any Basis Risk Carry
Forward Amount with respect to any Offered Certificate for
such Distribution Date to the Offered Certificates in the same
order and priority in which Accrued Certificate Interest
Distribution Amount is allocated among those Classes of
Certificates with the allocation to the Class A Certificates
being pro rata based on their respective Basis Risk Carry
Forward Amounts;
(G) (1) from any Interest Rate Cap Payments on deposit
in the Excess Reserve Fund Account with respect to that
Distribution Date, on a pro rata basis, based on their
respective remaining Basis Risk Carry Forward Amounts (or, in
the case of the Class A-IO Certificates, based on their Class
A-IO(2) Component Basis Risk Carry Forward Amount), to the
Class A-2A, Class A-2B and Class A-IO Certificates up to their
respective unpaid remaining Basis Risk Carry Forward Amounts
(or, in the case of the Class A-IO Certificates up to their
unpaid Class A-IO(2) Component Basis Risk Carry Forward
Amount), then (2) from any remaining Interest Rate Cap
Payments (a) 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,
and then (b) to the extent remaining, to the Class X
Certificates;
(H) to the holders of the Class X Certificates, the
remainder of the Class X Distributable Amount and any
remaining Interest Rate Cap Payments not distributed pursuant
to Sections 4.02(a)(iii)(A)-(G); and
(I) to the holders of the Class R Certificates, any
remaining amount.
(iv) Solely for purposes of interest allocation calculations,
the portion of the interest component of Available Funds
attributable to Group I Mortgage Loans will be allocated:
(a) first, pro rata (based on the accrued and unpaid interest
distributable pursuant to Section 4.02(a)(i)(A) to the Class A-1 and
the portion of Class A-IO Certificates relating to the Class A-IO(1)
Component), to the Class A-1 and Class A-IO Certificates, the
Accrued Certificate Interest Distribution Amount and any Unpaid
Interest Amounts for the Class A-1 Certificates and the portion of
the Class A-IO Certificates relating to the Class A-IO(1) Component;
and
(b) second, pro rata, to the Class A-2A, Class A-2B and Class
A-IO Certificates, the Accrued Certificate Interest Distribution
Amount and any Unpaid Interest Amounts for the Class A-2A and Class
A-2B Certificates and the portion of the Class A-IO Certificates
relating to the Class A-IO(2) Component, to the extent not otherwise
previously paid from the interest component of Available Funds
attributable to the Group II Mortgage Loans.
(v) Solely for purposes of interest allocation calculations, the
portion of the interest component of Available Funds attributable to Group
II Mortgage Loans will be allocated:
(a) first, pro rata (based on the accrued and unpaid interest
distributable pursuant to Section 4.02(a)(i)(A) to the Class A-2A
and Class A-2B Certificates and the portion of the Class A-IO
Certificates relating to the Class A-IO(2) Component), to the Class
A-2A, Class A-2B and Class A-IO Certificates, the Accrued
Certificate Interest Distribution Amount and any Unpaid Interest
Amounts for the Class A-2A and Class A-2B Certificates and the
portion of the Class A-IO Certificates relating to the Class A-IO(2)
Component; and
(b) second, pro rata to the Class A-1 and Class A-IO
Certificates, the Accrued Certificate Interest Distribution Amount
and any Unpaid Interest Amounts for the Class A-1 Certificates and
the portion of the Class A-IO Certificates relating to the Class
A-IO(1) Component, to the extent not otherwise previously paid from
the interest component of Available Funds attributable to the Group
I Mortgage Loans.
If on any Distribution Date, as a result of the foregoing
allocation rules, any Class of Class A Certificates does not receive the related
Accrued Certificate Interest Distribution Amount or the related Unpaid Interest
Amounts, if any, then that unpaid amount will be recoverable by the holders of
those Classes, with interest thereon, on future Distribution Dates, as Unpaid
Interest Amounts, subject to the priorities described above. In the event the
Class Certificate Balance of any Class of 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.
(b) On each Distribution Date, all amounts representing
Prepayment Premiums from the Mortgage Loans received during the related
Prepayment Period shall be distributed to the holders of the Class P
Certificates.
(c) All principal distributions to the Class A LIBOR
Certificates on any Distribution Date shall be allocated among the Class A-1
Certificates, and the Class A-2 Certificate Group based on the Class A Principal
Allocation Percentage for the Class A-1 Certificates or the Class A-2
Certificate Group, as applicable; provided, however, that if the Class
Certificate Balance of the Class A LIBOR Certificates in any Class A Certificate
Group is reduced to zero, then the remaining amount of principal distributions
distributable to the Class A LIBOR Certificates on such Distribution Date, and
the amount of principal distributions distributable on all subsequent
Distribution Dates, will be distributed to the holders of the Class A LIBOR
Certificates of the other Class A Certificate Group remaining outstanding, in
accordance with the principal distribution allocations set forth in this Section
4.02(c), until their respective Class Certificate Balances have been reduced to
zero. Any payments of principal to the Class A-1 Certificates shall be made
first from Available Funds relating to the Group I Mortgage Loans. Any payments
of principal to the Class A-2 Certificate Group shall be made first from
Available Funds relating to the Group II Mortgage Loans. Principal distributions
allocated to the Class A-2 Certificate Group shall be distributed sequentially
to the Class A-2A Certificates, until their Class Certificate Balance has been
reduced to zero, and then to the Class A-2B Certificates, until their Class
Certificate Balance has been reduced to zero. However, from and after the
Distribution Date on which the aggregate Class Certificate Balances of the Class
M-1, Class M-2, Class B-1 and Class B-2 Certificates have been reduced to zero,
any principal distributions allocated to the Class A-2 Certificate Group are
required to be allocated pro rata to the Class A-2A and Class A-2B Certificates,
based on their respective Class Certificate Balances.
(d) On any Distribution Date, any Relief Act Interest
Shortfalls and Net Prepayment Interest Shortfalls for such Distribution Date
will be allocated pro rata, as a reduction of the Accrued Certificate Interest
for the Class A, Class M and Class B Certificates, based on the amount of
interest to which such Classes would otherwise be entitled on such Distribution
Date.
Section 4.03 Monthly Statements to Certificateholders. (a) Not
later than each Distribution Date, the Trustee shall make available to each
Certificateholder, the Servicer, the Depositor and each Rating Agency a
statement setting forth with respect to the related distribution:
(i) the amount thereof allocable to principal, separately
identifying the aggregate amount of any Principal Prepayments and
Liquidation Proceeds included therein;
(ii) the amount thereof allocable to interest, any Unpaid Interest
Amounts included in such distribution and any remaining Unpaid Interest
Amounts after giving effect to such distribution, any Basis Risk Carry
Forward Amount for such Distribution Date and the amount of all Basis Risk
Carry Forward 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
Servicer or Subservicer (with respect to the Subservicers, in the
aggregate) with respect to such Distribution Date;
(vii) the Pass-Through Rate for each such Class of Certificates with
respect to such Distribution Date;
(viii)the amount of P&I Advances included in the distribution on
such Distribution Date and the aggregate amount of P&I Advances reported
by the Servicer as outstanding as of the close of business on the
Determination Date immediately preceding such Distribution Date;
(ix) the number and aggregate outstanding principal balances of
Mortgage Loans (1) as to which the Scheduled Payment is delinquent 31 to
60 days, 61 to 90 days and 91 or more days, (2) that have become REO
Property, (3) that are in foreclosure and (4) that are in bankruptcy, in
each case as of the close of business on the last Business Day of the
immediately preceding month;
(x) For each of the preceding 12 calendar months, or all calendar
months since the related Cut-off Date, whichever is less, the aggregate
dollar amount of the Scheduled Payments (A) due on all Outstanding
Mortgage Loans on each of the Due Dates in each such month and (B)
delinquent 60 days or more on each of the Due Dates in each such month;
(xi) with respect to all Mortgage Loans that became REO Properties
during the preceding calendar month, the aggregate number of such Mortgage
Loans and the aggregate Stated Principal Balance of such Mortgage Loans as
of the close of business on the Determination Date preceding such
Distribution Date and the date of acquisition thereof;
(xii) the total number and principal balance of any REO Properties
(and market value, if available) as of the close of business on the
Determination Date preceding such Distribution Date;
(xiii)whether a Trigger Event has occurred and is continuing
(including the calculation of thereof and the aggregate outstanding
balance of all 60+ Day Delinquent Mortgage Loans);
(xiv) the amount on deposit in the Excess Reserve Fund Account
(after giving effect to distributions on such Distribution Date);
(xv) the aggregate amount of Applied Realized Loss Amounts incurred
during the preceding calendar month and aggregate Applied Realized Loss
Amounts through such Distribution Date;
(xvi) the amount of any Net Monthly Excess Cash Flow on such
Distribution Date and the allocation thereof to the Certificateholders
with respect to Applied Realized Loss Amounts and Unpaid Interest Amounts;
(xvii) the Overcollateralized Amount and Specified
Overcollateralized Amount;
(xviii) Prepayment Premiums collected by the Servicer;
(xix) the Interest Rate Cap Payment, if any, for such Distribution
Date;
(xx) the amount distributed on the Class X Certificates.
(b) The Trustee's responsibility for providing the above
statement to the Certificateholders, each Rating Agency, the Servicer, the
Responsible Party and the Depositor is limited to the availability, timeliness
and accuracy of the information derived from the Servicer. The Trustee will
provide the above statement via the Trustee's internet website. The Trustee's
website will initially be located at https:\\xxx.xxxxxxx.xxx and assistance in
using the website can be obtained by calling the Trustee's customer service desk
at (000) 000-0000. Parties that are unable to use the above distribution method
are entitled to have a paper copy mailed to them via first class mail by calling
the customer service desk and indicating such. The Trustee shall have the right
to change the manner in which the above statement is distributed in order to
make such distribution more convenient and/or more accessible, and the Trustee
shall provide timely and adequate notification to the Certificateholders and the
parties hereto regarding any such changes.
The Trustee shall also be entitled to rely on, but shall not be
responsible for the content or accuracy of, any information provided by the
Servicer for purposes of preparing the above statement and may affix thereto any
disclaimer it deems appropriate in its reasonable discretion (without suggesting
liability on the part of any other party hereto).
As a condition to access the Trustee's internet website, the Trustee
may require registration and the acceptance of a disclaimer. The Trustee will
not be liable for the dissemination of information in accordance with this
Agreement.
Upon written request from any Certificateholder, the Trustee shall
provide the information provided for in Sections 4.03(d) to such
Certificateholder, at the expense of the requesting Certificateholder. The
Trustee's responsibility for providing the information provided for in Sections
4.03(d) to the Certificateholders is limited to the availability and timeliness
of the information provided by the Servicer. The Trustee shall provide the
information provided for in Sections 4.03(d) in the same format as received from
the Servicer upon request by the Certificateholders. The Trustee shall have no
duty or obligation to monitor, review or take any action regarding such
information received pursuant to Section 4.03(d) other than forwarding copies to
Certificateholders. The Trustee shall have no liability for the accuracy,
completeness or otherwise for such information.
(c) Upon request, within a reasonable period of time after the end
of each calendar year, the Trustee shall cause to be furnished to each Person
who at any time during the calendar year was a Certificateholder, a statement
containing the information set forth in clauses (a)(i) and (a)(ii) of this
Section 4.03 aggregated for such calendar year or applicable portion thereof
during which such Person was a Certificateholder. Such obligation of the Trustee
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Trustee pursuant to any
requirements of the Code as from time to time in effect.
(d) Not later than the Reporting Date, the Servicer shall furnish to
the Trustee a monthly remittance advice statement (in a format mutually agreed
upon by the Servicer and the Trustee) containing such information as shall be
reasonably requested by the Trustee to provide the reports required by Section
4.03(a) as to the accompanying remittance and the period ending on the close of
business on the last Business Day of the immediately preceding month (the
"Servicer Remittance Report").
The Servicer shall furnish to the Trustee an individual loan
accounting report, as of the last Business Day of each month, to document
Mortgage Loan payment activity on an individual Mortgage Loan basis. With
respect to each month, the corresponding individual loan accounting report (in
electronic format) shall be received by the Trustee no later than the Reporting
Date, which report shall contain the following:
(i) with respect to each Scheduled Payment, the amount of such
remittance allocable to principal (including a separate breakdown of any
Principal Prepayment, including the date of such prepayment, and any
Prepayment Premiums, along with a detailed report of interest on principal
prepayment amounts remitted in accordance with Section 3.25);
(ii) with respect to each Scheduled Payment, the amount of such
remittance allocable to interest;
(iii) the amount of servicing compensation received by the Servicer
during the prior distribution period;
(iv) the individual and aggregate Stated Principal Balance of the
Mortgage Loans;
(v) the aggregate of any expenses reimbursed to the Servicer during
the prior distribution period pursuant to Section 3.11;
(vi) the number and aggregate outstanding principal balances of
Mortgage Loans (a) delinquent (1) 31 to 60 days, (2) 61 to 90 days, or (3)
91 days or more; (b) as to which foreclosure has commenced; and (c) as to
which REO Property has been acquired;
(vii) each Mortgage Loan which has been altered, modified or varied
during such month, and the reason for such modification (i.e., extension
of maturity date, Mortgage Interest Rate);
(viii)with respect to each Mortgage Loan, the amount of any Realized
Losses for such Mortgage Loan; and
(ix) any other information reasonably required by the Trustee to
enable it to prepare the monthly statement referred to in Section 4.03(a).
Section 4.04 Certain Matters Relating to the Determination of LIBOR.
Until all of the LIBOR Certificates are paid in full, the Trustee will at all
times retain at least four Reference Banks for the purpose of determining LIBOR
with respect to each LIBOR Determination Date. The Trustee initially shall
designate the Reference Banks (after consultation with the Depositor). Each
"Reference Bank" shall be a leading bank engaged in transactions in Eurodollar
deposits in the international Eurocurrency market, shall not control, be
controlled by, or be under common control with, the Trustee and shall have an
established place of business in London. If any such Reference Bank should be
unwilling or unable to act as such or if the Trustee should terminate its
appointment as Reference Bank, the Trustee shall promptly appoint or cause to be
appointed another Reference Bank (after consultation with the Depositor). The
Trustee shall have no liability or responsibility to any Person for (i) the
selection of any Reference Bank for purposes of determining LIBOR or (ii) any
inability to retain at least four Reference Banks which is caused by
circumstances beyond its reasonable control.
The Pass-Through Rate for each Class of LIBOR Certificates for each
Interest Accrual Period shall be determined by the Trustee on each LIBOR
Determination Date so long as the LIBOR Certificates are outstanding on the
basis of LIBOR and the respective formulae appearing in footnotes corresponding
to the LIBOR Certificates in the table relating to the Certificates in the
Preliminary Statement. The Trustee shall not have any liability or
responsibility to any Person for its inability, following a good-faith
reasonable effort, to obtain quotations from the Reference Banks or to determine
the arithmetic mean referred to in the definition of LIBOR, all as provided for
in this Section 4.04 and the definition of LIBOR. The establishment of LIBOR and
each Pass-Through Rate for the LIBOR Certificates by the Trustee shall (in the
absence of manifest error) be final, conclusive and binding upon each Holder of
a Certificate and the Trustee.
Section 4.05 Allocation of Applied Realized Loss Amounts. Any
Applied Realized Loss Amounts will be allocated to the most junior Class of
Subordinate Certificates then outstanding in reduction of the Class Certificate
Balance thereof. In the event Applied Realized Loss Amounts are allocated to any
Class of Certificates, their Class Principal Balances shall be permanently
reduced by the amount so allocated, and no funds will be distributable with
respect to the written down amounts (including without limitation Basis Risk
Carry Forward Amounts) or with respect to interest on the written down amounts
on that Distribution Date or any future Distribution Dates, even if funds are
otherwise available for distribution.
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates. The Certificates shall be
substantially in the forms attached hereto as exhibits. The Certificates shall
be issuable in registered form, in the minimum denominations, integral multiples
in excess thereof (except that one Certificate in each Class may be issued in a
different amount which must be in excess of the applicable minimum denomination)
and aggregate denominations per Class set forth in the Preliminary Statement.
The Depositor hereby directs the Trustee to register the Class
X Certificates and the Class P Certificates in the name of the Depositor or its
designee. On a date as to which the Depositor notifies the Trustee, the
Depositor hereby directs the Trustee to transfer the Class X Certificates and
the Class P Certificates as follows: "Xxxxx Fargo Bank Minnesota, National
Association, as Indenture Trustee on behalf of the Noteholders of the GSAMP NIM
Trust 2003 AHL N," and to deliver such Class X Certificates and Class P
Certificates to Xxxxx Fargo Bank Minnesota, National Association, as indenture
trustee.
Subject to Section 9.02 respecting the final distribution on
the Certificates, on each Distribution Date the Trustee shall make distributions
to each Certificateholder of record on the preceding Record Date either (x) by
wire transfer in immediately available funds to the account of such holder at a
bank or other entity having appropriate facilities therefor as directed by that
Certificateholder by written wire instructions provided to the Trustee or (y),
in the event that no wire instructions are provided to the Trustee, by check
mailed by first class mail to such Certificateholder at the address of such
holder appearing in the Certificate Register.
The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee by an authorized officer. Certificates
bearing the manual or facsimile signatures of individuals who were, at the time
such signatures were affixed, authorized to sign on behalf of the Trustee shall
bind the Trustee, notwithstanding that such individuals or any of them have
ceased to be so authorized prior to the countersignature and delivery of any
such Certificates or did not hold such offices at the date of such Certificate.
No Certificate shall be entitled to any benefit under this Agreement, or be
valid for any purpose, unless countersigned by the Trustee by manual signature,
and such countersignature upon any Certificate shall be conclusive evidence, and
the only evidence, that such Certificate has been duly executed and delivered
hereunder. All Certificates shall be dated the date of their countersignature.
On the Closing Date, the Trustee shall countersign the Certificates to be issued
at the direction of the Depositor, or any affiliate thereof.
The Depositor shall provide, or cause to be provided, to the
Trustee on a continuous basis, an adequate inventory of Certificates to
facilitate transfers.
Section 5.02 Certificate Register; Registration of Transfer
and Exchange of Certificates. (a) The Trustee shall maintain, or cause to be
maintained in accordance with the provisions of Section 5.06, a Certificate
Register for the Trust Fund in which, subject to the provisions of subsections
(b) and (c) below and to such reasonable regulations as it may prescribe, the
Trustee shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. Upon surrender for registration of
transfer of any Certificate, the Trustee shall execute and deliver, in the name
of the designated transferee or transferees, one or more new Certificates of the
same Class and aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be
exchanged for other Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Trustee. Whenever
any Certificates are so surrendered for exchange, the Trustee shall execute,
authenticate, and deliver the Certificates which the Certificateholder making
the exchange is entitled to receive. Every Certificate presented or surrendered
for registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Trustee duly executed by the
holder thereof or his attorney duly authorized in writing. In the event, the
Depositor or an Affiliate transfers the Class X Certificates, or a portion
thereof, to another Affiliate, it shall notify the Trustee in writing of the
affiliated status of the transferee. The Trustee shall have no liability
regarding the lack of notice with respect thereto.
No service charge to the Certificateholders shall be made for
any registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or
exchange shall be cancelled and subsequently destroyed by the Trustee in
accordance with the Trustee's customary procedures.
(b) No transfer of a Private Certificate shall be made unless
such transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under said Act and such state securities laws. Except
with respect to the initial transfer of the Class X and Class P Certificates to
the NIM Trust, in the event that a transfer of a Private Certificate which is a
Physical Certificate is to be made in reliance upon an exemption from the
Securities Act and such laws, in order to assure compliance with the Securities
Act and such laws, the Certificateholder desiring to effect such transfer shall
certify to the Trustee in writing the facts surrounding the transfer in
substantially the form set forth in Exhibit H (the "Transferor Certificate") and
either (i) there shall be delivered to the Trustee a letter in substantially the
form of Exhibit I (the "Rule 144A Letter") or (ii) in the case of the Class X
Certificates, there shall be delivered to the Trustee at the expense of the
transferor an Opinion of Counsel that such transfer may be made without
registration under the Securities Act. In the event that a transfer of a Private
Certificate which is a Book-Entry Certificate is to be made in reliance upon an
exemption from the Securities Act and such laws, in order to assure compliance
with the Securities Act and such laws, the Certificateholder desiring to effect
such transfer will be deemed to have made as of the transfer date each of the
certifications set forth in the Transferor Certificate in respect of such
Certificate and the transferee will be deemed to have made as of the transfer
date each of the certifications set forth in the Rule 144A Letter in respect of
such Certificate, in each case as if such Certificate were evidenced by a
Physical Certificate. The Depositor shall provide to any Holder of a Private
Certificate and any prospective transferee designated by any such Holder,
information regarding the related Certificates and the Mortgage Loans and such
other information as shall be necessary to satisfy the condition to eligibility
set forth in Rule 144A(d)(4) for transfer of any such Certificate without
registration thereof under the Securities Act pursuant to the registration
exemption provided by Rule 144A. The Trustee and the Servicer shall cooperate
with the Depositor in providing the Rule 144A information referenced in the
preceding sentence, including providing to the Depositor such information
regarding the Certificates, the Mortgage Loans and other matters regarding the
Trust Fund as the Depositor shall reasonably request to meet its obligation
under the preceding sentence. Each Holder of a Private Certificate desiring to
effect such transfer shall, and does hereby agree to, indemnify the Trustee and
the Depositor and the Servicer against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws.
Except with respect to the transfer of the Class X and Class P
Certificates to the NIM Trust on the Closing Date, no transfer of an
ERISA-Restricted Certificate shall be made unless the Trustee shall have
received either (i) a representation from the transferee of such Certificate
acceptable to and in form and substance satisfactory to the Trustee (in the
event such Certificate is a Private Certificate or a Residual Certificate, such
requirement is satisfied only by the Trustee's receipt of a representation
letter from the transferee substantially in the form of Exhibit I), to the
effect that such transferee is not an employee benefit plan or arrangement
subject to Section 406 of ERISA, a plan subject to Section 4975 of the Code or a
plan subject to any Federal, state or local law ("Similar Law") materially
similar to the foregoing provisions of ERISA or the Code, nor a person acting on
behalf of any such plan or arrangement nor using the assets of any such plan or
arrangement to effect such transfer, (ii) in the case of an ERISA-Restricted
Certificate other than a Residual Certificate or a Class P Certificate that has
been the subject of an ERISA-Qualifying Underwriting and the purchaser is an
insurance company, a representation that the purchaser is an insurance company
that is purchasing such Certificates with funds contained in an "insurance
company general account" (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the purchase and
holding of such Certificates are covered under Sections I and III of PTCE 95-60
or (iii) in the case of any such ERISA-Restricted Certificate other than a
Residual Certificate or Class P Certificate presented for registration in the
name of an employee benefit plan subject to Title I of ERISA, a plan or
arrangement subject to Section 4975 of the Code (or comparable provisions of any
subsequent enactments), or a plan subject to Similar Law, or a trustee of any
such plan or any other person acting on behalf of any such plan or arrangement
or using such plan's or arrangement's assets, an Opinion of Counsel satisfactory
to the Trustee and the Servicer, which Opinion of Counsel shall not be an
expense of the Trustee, the Servicer or the Trust Fund, addressed to the
Trustee, to the effect that the purchase or holding of such ERISA-Restricted
Certificate will not result in the assets of the Trust Fund being deemed to be
"plan assets" and subject to the prohibited transaction provisions of ERISA and
the Code or similar violation of Similar Law and will not subject the Trustee or
the Servicer to any obligation in addition to those expressly undertaken in this
Agreement or to any liability. For purposes of the preceding sentence, with
respect to an ERISA-Restricted Certificate that is not a Private Certificate or
a Residual Certificate, in the event the representation letter referred to in
the preceding sentence is not furnished, such representation shall be deemed to
have been made to the Trustee by the transferee's (including an initial
acquirer's) acceptance of the ERISA-Restricted Certificates. 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 Certificate nor the Class P Certificate
may be sold to any employee benefit plan subject to Title I of ERISA, any plan
subject to Section 4975 of the Code, or any plan subject to any Similar Law or
any person investing on behalf of or with plan assets of such plan.
To the extent permitted under applicable law (including, but
not limited to, ERISA), the Trustee shall be under no liability to any Person
for any registration of transfer of any ERISA-Restricted Certificate that is in
fact not permitted by this Section 5.02(b) or for making any payments due on
such Certificate to the Holder thereof or taking any other action with respect
to such Holder under the provisions of this Agreement so long as the transfer
was registered by the Trustee in accordance with the foregoing requirements.
(c) Each Person who has or who acquires any Ownership Interest
in a Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following provisions,
and the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee;
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the Trustee
shall not register the Transfer of any Residual Certificate unless, in
addition to the certificates required to be delivered to the Trustee under
subparagraph (b) above, the Trustee shall have been furnished with an
affidavit (a "Transfer Affidavit") of the initial owner or the proposed
transferee in the form attached hereto as Exhibit G;
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee, trustee or
agent in connection with any Transfer of a Residual Certificate and (C)
not to Transfer its Ownership Interest in a Residual Certificate or to
cause the Transfer of an Ownership Interest in a Residual Certificate to
any other Person if it has actual knowledge that such Person is not a
Permitted Transferee;
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Residual Certificate in violation of the provisions of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder of
a Residual Certificate in violation of the provisions of this Section
5.02(c), then the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of registration of
Transfer of such Residual Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by Section 5.02(b) and this
Section 5.02(c) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the Transfer was
registered after receipt of the related Transfer Affidavit, Transferor
Certificate and the Rule 144A Letter. The Trustee shall be entitled but
not obligated to recover from any Holder of a Residual Certificate that
was in fact not a Permitted Transferee at the time it became a Holder or,
at such subsequent time as it became other than a Permitted Transferee,
all payments made on such Residual Certificate at and after either such
time. Any such payments so recovered by the Trustee shall be paid and
delivered by the Trustee to the last preceding Permitted Transferee of
such Certificate; and
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Trustee, all information necessary to
compute any tax imposed under Section 860E(e) of the Code as a result of a
Transfer of an Ownership Interest in a Residual Certificate to any Holder
who is not a Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set
forth in this Section 5.02(c) shall cease to apply (and the applicable portions
of the legend on a Residual Certificate may be deleted) with respect to
Transfers occurring after delivery to the Trustee of an Opinion of Counsel,
which Opinion of Counsel shall not be an expense of the Trust Fund, the Trustee,
the Responsible Party or the Servicer, to the effect that the elimination of
such restrictions will not cause any Trust REMIC to fail to qualify as a REMIC
at any time that the Certificates are outstanding or result in the imposition of
any tax on the Trust Fund, a Certificateholder or another Person. Each Person
holding or acquiring any Ownership Interest in a Residual Certificate hereby
consents to any amendment of this Agreement which, based on an Opinion of
Counsel furnished to the Trustee, is reasonably necessary (a) to ensure that the
record ownership of, or any beneficial interest in, a Residual Certificate is
not transferred, directly or indirectly, to a Person that is not a Permitted
Transferee and (b) to provide for a means to compel the Transfer of a Residual
Certificate which is held by a Person that is not a Permitted Transferee to a
Holder that is a Permitted Transferee.
(d) The preparation and delivery of all certificates and
opinions referred to above in this Section 5.02 in connection with transfer
shall be at the expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates
shall at all times remain registered in the name of the Depository or its
nominee and at all times: (i) registration of the Certificates may not be
transferred by the Trustee except to another Depository; (ii) the Depository
shall maintain book-entry records with respect to the Certificate Owners and
with respect to ownership and transfers of such Book-Entry Certificates; (iii)
ownership and transfers of registration of the Book-Entry Certificates on the
books of the Depository shall be governed by applicable rules established by the
Depository; (iv) the Depository may collect its usual and customary fees,
charges and expenses from its Depository Participants; (v) the Trustee shall
deal with the Depository, Depository Participants and indirect participating
firms as representatives of the Certificate Owners of the Book-Entry
Certificates for purposes of exercising the rights of holders under this
Agreement, and requests and directions for and votes of such representatives
shall not be deemed to be inconsistent if they are made with respect to
different Certificate Owners; and (vi) the Trustee may rely and shall be fully
protected in relying upon information furnished by the Depository with respect
to its Depository Participants and furnished by the Depository Participants with
respect to indirect participating firms and persons shown on the books of such
indirect participating firms as direct or indirect Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates
shall be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owner. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
If (x) (i) the Depository or the Depositor advises the Trustee
in writing that the Depository is no longer willing or able to properly
discharge its responsibilities as Depository, and (ii) the Trustee or the
Depositor is unable to locate a qualified successor, or (y) the Depositor at its
option advises the Trustee in writing that it elects to terminate the book-entry
system through the Depository, the Trustee shall notify all Certificate Owners,
through the Depository, of the occurrence of any such event and of the
availability of definitive, fully-registered Certificates (the "Definitive
Certificates") to Certificate Owners requesting the same. Upon surrender to the
Trustee of the related Class of Certificates by the Depository, accompanied by
the instructions from the Depository for registration, the Trustee shall issue
the Definitive Certificates. None of the Servicer, the Depositor or the Trustee
shall be liable for any delay in delivery of such instruction and each may
conclusively rely on, and shall be protected in relying on, such instructions.
The Depositor shall provide the Trustee with an adequate inventory of
Certificates to facilitate the issuance and transfer of Definitive Certificates.
Upon the issuance of Definitive Certificates all references herein to
obligations imposed upon or to be performed by the Depository shall be deemed to
be imposed upon and performed by the Trustee, to the extent applicable with
respect to such Definitive Certificates and the Trustee shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder;
provided, that the Trustee shall not by virtue of its assumption of such
obligations become liable to any party for any act or failure to act of the
Depository.
(f) Each Private Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer and accompanied by IRS Form W-8ECI, W-8BEN, W-8IMY (and
all appropriate attachments) or W-9 in form satisfactory to the Trustee and the
Certificate Registrar, duly executed by the Certificateholder or his attorney
duly authorized in writing. Each Certificate presented or surrendered for
registration of transfer or exchange shall be canceled and subsequently disposed
of by the Certificate Registrar in accordance with its customary practice. No
service charge shall be made for any registration of transfer or exchange of
Private Certificates, but the Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of Private Certificates.
Section 5.03 Mutilated, Destroyed, Lost or Stolen
Certificates. If (a) any mutilated Certificate is surrendered to the Trustee, or
the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Certificate and (b) there is delivered to the Depositor, the
Servicer and the Trustee such security or indemnity as may be required by them
to hold each of them harmless, then, in the absence of notice to the Trustee
that such Certificate has been acquired by a bona fide purchaser, the Trustee
shall execute, countersign and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
Class, tenor and Percentage Interest. In connection with the issuance of any new
Certificate under this Section 5.03, the Trustee may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of
the Trustee) connected therewith. Any replacement Certificate issued pursuant to
this Section 5.03 shall constitute complete and indefeasible evidence of
ownership, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
Section 5.04 Persons Deemed Owners. The Servicer, the Trustee,
the Depositor and any agent of the Servicer, the Depositor or the Trustee may
treat the Person in whose name any Certificate is registered as the owner of
such Certificate for the purpose of receiving distributions as provided in this
Agreement and for all other purposes whatsoever, and none of the Servicer, the
Trustee, the Depositor or any agent of the Servicer, the Depositor or the
Trustee shall be affected by any notice to the contrary.
Section 5.05 Access to List of Certificateholders' Names and
Addresses. If three or more Certificateholders (a) request such information in
writing from the Trustee, (b) state that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication which such Certificateholders propose to transmit, or if the
Depositor or the Servicer shall request such information in writing from the
Trustee, then the Trustee shall, within ten Business Days after the receipt of
such request, provide the Depositor, the Servicer or such Certificateholders at
such recipients' expense the most recent list of the Certificateholders of such
Trust Fund held by the Trustee, if any. The Depositor and every
Certificateholder, by receiving and holding a Certificate, agree that the
Trustee shall not be held accountable by reason of the disclosure of any such
information as to the list of the Certificateholders hereunder, regardless of
the source from which such information was derived.
Section 5.06 Maintenance of Office or Agency. The Trustee will
maintain or cause to be maintained at its expense an office or offices or agency
or agencies in Minneapolis, Minnesota where Certificates may be surrendered for
registration of transfer or exchange. The Trustee initially designates its
offices located at Xxxxx Fargo Center, Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000 for such purposes. The Trustee will give prompt
written notice to the Certificateholders of any change in such location of any
such office or agency.
ARTICLE VI
THE DEPOSITOR AND THE SERVICER
Section 6.01 Respective Liabilities of the Depositor and the
Servicer. The Depositor and each of the Servicer shall each be liable in
accordance herewith only to the extent of the obligations specifically and
respectively imposed upon and undertaken by them herein.
Section 6.02 Merger or Consolidation of the Depositor or the
Servicer. The Depositor and the Servicer will each keep in full effect its
existence, rights and franchises as a corporation or 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 or the Servicer may be
merged or consolidated, or any Person resulting from any merger or consolidation
to which the Depositor or the Servicer shall be a party, or any person
succeeding to the business of the Depositor or the Servicer, shall be the
successor of the Depositor or the Servicer, as the case may be, hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided, however, that the successor or surviving Person to the Servicer shall
be qualified to sell mortgage loans to, and to service mortgage loans on behalf
of, Xxxxxx Mae or Xxxxxxx Mac, and provided, further, that such merger,
consolidation or succession does not adversely affect the then current rating or
ratings on the Offered Certificates.
Section 6.03 Limitation on Liability of the Depositor, the
Servicer and Others. Neither the Depositor, the Servicer nor any of their
respective directors, officers, employees or agents shall be under any liability
to the Certificateholders for any action taken or for refraining from the taking
of any action in good faith pursuant to this Agreement, or for errors in
judgment; provided, however, that this provision shall not protect the
Depositor, the Servicer or any such Person against any breach of representations
or warranties made by it herein or protect the Depositor, the Servicer or any
such Person from any liability which would otherwise be imposed by reasons of
willful misfeasance, bad faith or negligence (or gross negligence in the case of
the Depositor) in the performance of duties or by reason of reckless disregard
of obligations and duties hereunder. The Depositor, the Servicer and any
director, officer, employee or agent of the Depositor and the Servicer may rely
in good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. The Depositor,
the Servicer and any director, officer, employee or agent of the Depositor and
the Servicer shall be indemnified by the Trust Fund and held harmless against
any loss, liability or expense incurred in connection with any audit,
controversy or judicial proceeding relating to a governmental taxing authority
or any legal action relating to this Agreement or the Certificates or any other
unanticipated or extraordinary expense, other than any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or negligence (or
gross negligence in the case of the Depositor) in the performance of duties
hereunder or by reason of reckless disregard of obligations and duties
hereunder. Neither the Depositor nor the Servicer shall be under any obligation
to appear in, prosecute or defend any legal action that is not incidental to its
respective duties hereunder and which in its opinion may involve it in any
expense or liability; provided, however, that each of the Depositor and the
Servicer may in its discretion undertake any such action (or direct the Trustee
to undertake such actions pursuant to Section 2.03 for the benefit of the
Certificateholders) that it may deem necessary or desirable in respect of this
Agreement and the rights and duties of the parties hereto and interests of the
Trustee and the Certificateholders hereunder. In such event, the legal expenses
and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities of the Trust Fund, and the Depositor, and the
Servicer shall be entitled to be reimbursed therefor out of the Collection
Account.
Section 6.04 Limitation on Resignation of the Servicer. The
Servicer shall not assign this Agreement or resign from the obligations and
duties hereby imposed on it except (i) by mutual consent of the Servicer, the
Depositor and the Trustee or (ii) upon the determination that its duties
hereunder are no longer permissible under applicable law and such incapacity
cannot be cured by the Servicer without the incurrence of unreasonable expense.
Any such determination permitting the resignation of the Servicer under clause
(ii) above shall be evidenced by an Opinion of Counsel to such effect delivered
to the Depositor and the Trustee which Opinion of Counsel shall be in form and
substance acceptable to the Depositor and the Trustee. No such resignation shall
become effective until a successor shall have assumed the Servicer's
responsibilities and obligations hereunder.
Section 6.05 Additional Indemnification by the Servicer; Third
Party Claims. The Servicer shall indemnify the Responsible Party, the Depositor
and the Trustee and hold them harmless against any and all claims, losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments, and any other costs, fees and expenses that any of
them may sustain in any way related to any breach by the Servicer of (i) any of
its representations and warranties referred to in Section 2.03(a), (ii) any
error in any tax or information return prepared by the Servicer, or (iii) the
failure of the Servicer to perform its duties and service the Mortgage Loans in
compliance with the terms of this Agreement. The Servicer immediately shall
notify the Depositor and the Trustee if such claim is made by a third party with
respect to this Agreement or the Mortgage Loans, assume (with the prior written
consent of the Depositor and the Trustee) the defense of any such claim and pay
all expenses in connection therewith, including reasonable counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or the Responsible Party, the Depositor or the Trustee in respect of
such claim.
ARTICLE VII
DEFAULT
Section 7.01 Events of Default. "Event of Default," wherever
used herein, means any one of the following events:
(a) any failure by the Servicer to remit to the Trustee any
payment required to be made under the terms of this Agreement which continues
unremedied for a period of one Business Day after the date upon which written
notice of such failure, requiring the same to be remedied, shall have been given
to the Servicer by the Depositor, or by the Trustee, or to the Servicer, the
Depositor and the Trustee by Certificateholders entitled to at least 25% of the
Voting Rights; or
(b) the failure on the part of the Servicer duly to observe or
perform in any material respect any other of the covenants or agreements on the
part of the Servicer set forth in this Agreement, including, without limitation,
the Servicer's failure to comply with the provisions set forth in Section 3.29
hereof, which continues unremedied for a period of thirty days after the earlier
of (i) the date on which written notice of such failure, requiring the same to
be remedied, shall have been given to the Servicer by the Depositor or by the
Trustee, or to the Servicer, the Depositor and the Trustee by Certificateholders
of Certificates entitled to at least 25% of the Voting Rights and (ii) actual
knowledge of such failure by a Servicing Officer of the Servicer; provided,
however, that in the case of a failure or breach that cannot be cured within 30
days after notice or actual knowledge by the Servicer, the cure period may be
extended for an additional 30 days upon delivery by the Servicer to the Trustee
of a certificate to the effect that the Servicer believes in good faith that the
failure or breach can be cured within such additional time period and the
Servicer is diligently pursuing remedial action; or
(c) the failure by the Servicer in any month to deliver the
Servicer Remittance Report to the Trustee, and such failure continues uncured
for more than 30 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
Depositor, or by the Trustee, or to the Servicer, the Depositor and the Trustee
by Certificateholders entitled to at least 25% of the Voting Rights; or
(d) a decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator or receiver
or liquidator in any insolvency, bankruptcy, readjustment of debt, marshalling
of assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Servicer and
such decree or order shall have remained in force undischarged or unstayed for a
period of sixty days; or
(e) the Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, bankruptcy,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of or relating to the Servicer or of or relating to all or
substantially all of its property; or
(f) the Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its obligations; or
(g) any failure of the Servicer to make any P&I Advance on any
Remittance Date required to be made from its own funds pursuant to Section 4.01
which continues unremedied for one Business Day immediately following the
Remittance Date; or
(h) a breach of any representation and warranty of the
Servicer referred to in Section 2.03(a), which materially and adversely affects
the interests of the Certificateholders and which continues unremedied for a
period of thirty days after the date upon which written notice of such breach is
given to the Servicer by the Trustee or by the Depositor, or to the Servicer,
the Trustee and the Depositor by Certificateholders entitled to at least 25% of
the Voting Rights in the Certificates; or
(i) any reduction, withdrawal or qualification of the
servicing credit of the Servicer by any Rating Agency which results in the
inability of the Servicer to act as a primary or special servicer for or any
mortgage-backed or asset-backed transaction rated or to be rated by any Rating
Agency.
If an Event of Default described in clauses (a) through (i) of
this Section 7.01 shall occur, then, and in each and every such case, so long as
such Event of Default shall not have been remedied, the Trustee may, or at the
direction of Certificateholders entitled to a majority of the Voting Rights the
Trustee shall, by notice in writing to the Servicer (with a copy to each Rating
Agency), terminate all of the rights and obligations of the Servicer under this
Agreement and in and to the Mortgage Loans and the proceeds thereof, other than
its rights as a Certificateholder hereunder; provided, however, that the Trustee
shall not be required to give written notice to the Servicer of the occurrence
of an Event of Default described in clauses (b) through (h) and (i) of this
Section 7.01 unless and until a Responsible Officer of the Trustee has actual
knowledge of the occurrence of such an Event of Default. In the event that a
Responsible Officer of the Trustee has actual knowledge of the occurrence of an
event of default described in clause (a) of this Section 7.01, the Trustee shall
give written notice to the Servicer of the occurrence of such an event within
one Business Day of the first day on which the Responsible Officer obtains
actual knowledge of such occurrence; provided that failure to give such notice
shall not constitute a waiver of such Event of Default. On and after the receipt
by the Servicer of such written notice, all authority and power of the Servicer
hereunder, whether with respect to the Mortgage Loans or otherwise, shall pass
to and be vested in the Trustee. The Trustee is hereby authorized and empowered
to execute and deliver, on behalf of the Servicer, as attorney-in-fact or
otherwise, any and all documents and other instruments, and to do or accomplish
all other acts or things necessary or appropriate to effect the purposes of such
notice of termination, whether to complete the transfer and endorsement or
assignment of the Mortgage Loans and related documents, or otherwise. Unless
expressly provided in such written notice, no such termination shall affect any
obligation of the Servicer to pay amounts owed pursuant to Article VIII. The
Servicer agrees to cooperate with the Trustee in effecting the termination of
the Servicer's responsibilities and rights hereunder, including, without
limitation, the transfer to the Trustee of all cash amounts which shall at the
time be credited to the Collection Account of such predecessor Servicer, or
thereafter be received with respect to the Mortgage Loans.
Notwithstanding any termination of the activities of the
Servicer hereunder, the Servicer shall be entitled to receive from the Trust
Fund, prior to transfer of its servicing obligations hereunder, payment of all
accrued and unpaid portion of the Servicing Fees to which the Servicer would
have been entitled and reimbursement for all outstanding P&I Advances and
Servicing Advances, including Servicing Advances incurred prior to but not
invoiced until after the date of termination, in accordance with the terms of
this Agreement. In addition, the Servicer shall continue to be entitled to the
benefits of Section 6.03, notwithstanding any termination hereunder, with
respect to events occurring prior to such termination.
Section 7.02 Trustee to Act; Appointment of Successor. On and
after the time the Servicer receives a notice of termination pursuant to Section
7.01, the Trustee shall, subject to and to the extent provided in Section 3.06,
be the successor to the Servicer in its capacity as servicer under this
Agreement and the transactions set forth or provided for herein and shall
immediately assume all of the obligations of the Servicer to make P&I Advances
and Servicing Advances and shall assume and be subject to all the other
responsibilities, duties and liabilities relating thereto placed on the Servicer
by the terms and provisions hereof and applicable law as soon as practicable but
in no event later than 90 days after the receipt by the Servicer of the notice
of termination pursuant to Section 7.01. As compensation therefor, the Trustee
shall be entitled to all funds relating to the Mortgage Loans that the Servicer
would have been entitled to charge to the Collection Account if the Servicer had
continued to act hereunder including, if the Servicer was receiving the
Servicing Fee, the Servicing Fee and the income on investments or gain related
to the Collection Account (in addition to income on investments or gain related
to the Distribution Account for the benefit of the Trustee). Notwithstanding the
foregoing, if the Trustee has become the successor to the Servicer in accordance
with this Section 7.02, the Trustee may, if it shall be unwilling to so act, or
shall, if it is prohibited by applicable law from making P&I Advances and
Servicing Advances pursuant to Section 4.01 or if it is otherwise unable to so
act, or, at the written request of Certificateholders entitled to a majority of
the Voting Rights, appoint, or petition a court of competent jurisdiction to
appoint, any established mortgage loan servicing institution the appointment of
which does not adversely affect the then current rating of the Certificates by
each Rating Agency, as the successor to the Servicer hereunder in the assumption
of all or any part of the responsibilities, duties or liabilities of the
Servicer hereunder. Any successor to the Servicer shall be an institution which
is a Xxxxxx Xxx- and Xxxxxxx Mac-approved seller/servicer in good standing,
which has a net worth of at least $30,000,000, which is willing to service the
Mortgage Loans and which executes and delivers to the Depositor and the Trustee
an agreement accepting such delegation and assignment, containing an assumption
by such Person of the rights, powers, duties, responsibilities, obligations and
liabilities of the Servicer (other than liabilities of the Servicer under
Section 6.03 incurred prior to termination of the Servicer under Section 7.01),
with like effect as if originally named as a party to this Agreement; provided,
that each Rating Agency acknowledges that its rating of the Certificates in
effect immediately prior to such assignment and delegation will not be qualified
or reduced, as a result of such assignment and delegation. Pending appointment
of a successor to the Servicer hereunder, the Trustee, unless the Trustee is
prohibited by law from so acting, shall, subject to Section 3.05, act in such
capacity as hereinabove provided. In connection with such appointment and
assumption, the Trustee may make such arrangements for the compensation of such
successor out of payments on Mortgage Loans as it, the Depositor and such
successor shall agree; provided, however, that no such compensation shall be in
excess of the Servicing Fee Rate and amounts paid to the Servicer from
investments. The Trustee and such successor shall take such action, consistent
with this Agreement, as shall be necessary to effectuate any such succession.
Neither the Trustee nor any other successor Servicer shall be deemed to be in
default hereunder by reason of any failure to make, or any delay in making, any
distribution hereunder or any portion thereof or any failure to perform, or any
delay in performing, any duties or responsibilities hereunder, in either case
caused by the failure of the Servicer to deliver or provide, or any delay in
delivering or providing, any cash, information, documents or records to it.
In the event that the Servicer is terminated pursuant to
Section 7.01, such terminated Servicer shall provide notices to the Mortgagors,
transfer the Servicing Files to a successor Servicer and pay all of its own
out-of-pocket costs and expenses related to such obligations. In addition, all
Servicing Transfer Costs incurred by parties other than the terminated Servicer
shall be paid by the terminated Servicer promptly upon presentation of
reasonable documentation of such costs and if such predecessor Servicer defaults
in its obligations to pay such costs, such costs shall be paid by the successor
Servicer or the Trustee (in which case the successor Servicer or the Trustee, as
the case may be, shall be entitled to reimbursement therefor from the Trust
Fund). If the Trustee is the predecessor Servicer (except in the case where the
Trustee in its role as successor Servicer is being terminated pursuant to
Section 7.01 by reason of an Event of Default caused solely by the Trustee as
the successor Servicer and not by the predecessor Servicer's actions or
omissions), such costs shall be paid by the prior terminated Servicer promptly
upon presentation of reasonable documentation of such costs.
Any successor to the Servicer as servicer shall give notice to
the Mortgagors of such change of Servicer, in accordance with applicable federal
and state law, and shall, during the term of its service as Servicer, maintain
in force the policy or policies that the Servicer is required to maintain
pursuant to Section 3.13.
Any such successor Servicer shall be required to satisfy the
requirements of a successor Servicer under this Section 7.02.
Section 7.03 Notification to Certificateholders. (a) Upon any
termination of or appointment of a successor to the Servicer, the Trustee shall
give prompt written notice thereof to Certificateholders and to each Rating
Agency.
(b) Within 60 days after the occurrence of any Event of
Default, the Trustee shall transmit by mail to all Certificateholders and each
Rating Agency notice of each such Event of Default hereunder known to the
Trustee, unless such Event of Default shall have been cured or waived.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of the Trustee. The Trustee, before the
occurrence of an Event of Default and after the curing of all Events of Default
that may have occurred, shall undertake to perform such duties and only such
duties as are specifically set forth in this Agreement. In case an Event of
Default has occurred and remains uncured, the Trustee shall exercise such of the
rights and powers vested in it by this Agreement, and use the same degree of
care and skill in their exercise as a prudent person would exercise or use under
the circumstances in the conduct of such person's own affairs.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee that are specifically required to be furnished pursuant to any
provision of this Agreement shall examine them to determine whether they are in
the form required by this Agreement. The Trustee shall not be responsible for
the accuracy or content of any resolution, certificate, statement, opinion,
report, document, order, or other instrument.
No provision of this Agreement shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own bad faith or willful misfeasance.
Unless an Event of Default known to the Trustee has
occurred and is continuing,
(a) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Agreement, the Trustee shall
not be liable except for the performance of the duties and obligations
specifically set forth in this Agreement, no implied covenants or obligations
shall be read into this Agreement against the Trustee, and the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Agreement which it believed
in good faith to be genuine and to have been duly executed by the proper
authorities respecting any matters arising hereunder;
(b) the Trustee shall not be liable for an error of judgment
made in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it is finally proven that the Trustee was negligent in
ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken, suffered, or omitted to be taken by it in good faith in accordance with
the direction of the Holders of Certificates evidencing not less than 25% of the
Voting Rights relating to the time, method, and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee under this Agreement.
Section 8.02 Certain Matters Affecting the Trustee. Except as
otherwise provided in Section 8.01:
(a) the Trustee may request and rely upon and shall be
protected in acting or refraining from acting upon any resolution, Officer's
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties and the Trustee shall have no
responsibility to ascertain or confirm the genuineness of any signature of any
such party or parties;
(b) the Trustee may consult with counsel, financial advisers
or accountants and the advice of any such counsel, financial advisers or
accountants and any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such Opinion of Counsel;
(c) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Agreement;
(d) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing to do so by Holders of
Certificates evidencing not less than 25% of the Voting Rights allocated to each
Class of Certificates;
(e) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents, accountants or attorneys and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agents, accountants or attorneys
appointed with due care by it hereunder;
(f) the Trustee shall not be required to risk or expend its
own funds or otherwise incur any financial liability in the performance of any
of its duties or in the exercise of any of its rights or powers hereunder if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not assured to it;
(g) the Trustee shall not be liable for any loss on any
investment of funds pursuant to this Agreement (other than as issuer of the
investment security and except with respect to the investment of funds in the
Distribution Account not made at the direction of the Depositor during the
Trustee Float Period);
(h) the Trustee shall not be deemed to have knowledge of an
Event of Default until a Responsible Officer of the Trustee shall have received
written notice thereof except as otherwise provided in Section 7.01; and
(i) the Trustee shall be under no obligation to exercise any
of the trusts, rights or powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto at the request,
order or direction of any of the Certificateholders, pursuant to this Agreement,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity satisfactory to the Trustee against the costs, expenses
and liabilities which may be incurred therein or thereby.
Section 8.03 Trustee Not Liable for Certificates or Mortgage
Loans. The recitals contained herein and in the Certificates shall be taken as
the statements of the Depositor and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Agreement or of the Certificates or of any Mortgage Loan or
related document other than with respect to the Trustee's execution and
countersignature of the Certificates. The Trustee shall not be accountable for
the use or application by the Depositor or the Servicer of any funds paid to the
Depositor or the Servicer in respect of the Mortgage Loans or deposited in or
withdrawn from the Collection Account by the Depositor or the Servicer.
The Trustee shall have no responsibility for filing or
recording any financing or continuation statement in any public office at any
time or to otherwise perfect or maintain the perfection of any security interest
or lien granted to it hereunder (unless the Trustee shall have become the
successor Servicer).
The Trustee executes the Certificates not in its individual
capacity but solely as Trustee of the Trust Fund created by this Agreement, in
the exercise of the powers and authority conferred and vested in it by this
Agreement. Each of the undertakings and agreements made on the part of the
Trustee on behalf of the Trust Fund in the Certificates is made and intended not
as a personal undertaking or agreement by the Trustee but is made and intended
for the purpose of binding only the Trust Fund.
Section 8.04 Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates
with the same rights as it would have if it were not the Trustee.
Section 8.05 Trustee's Fees and Expenses. As compensation for
its activities under this Agreement, the Trustee may withdraw from the
Distribution Account on each Distribution Date the Trustee Fee for the
Distribution Date and, during the Trustee Float Period, any interest or
investment income earned on funds deposited in the Distribution Account. The
Trustee and any director, officer, employee, or agent of the Trustee shall be
indemnified by the Trust Fund and held harmless against any loss, liability, or
expense (including reasonable attorney's fees) incurred in connection with any
claim or legal action relating to:
(a) this Agreement,
(b) the Certificates, or
(c) the performance of any of the Trustee's duties under this
Agreement,
other than any loss, liability, or expense (i) resulting from any breach of the
Servicer's obligations in connection with this Agreement for which the Servicer
has performed its obligation to indemnify the Trustee pursuant to Section 6.05,
(ii) resulting from any breach of the Responsible Party's obligations in
connection with this Agreement for which the Responsible Party has performed its
obligation to indemnify the Trustee pursuant to Section 2.03(h), or (iii)
incurred because of willful misfeasance, bad faith, or negligence in the
performance of any of the Trustee's duties under this Agreement. This indemnity
shall survive the termination of this Agreement or the resignation or removal of
the Trustee under this Agreement. Without limiting the foregoing, except as
otherwise agreed upon in writing by the Depositor and the Trustee, and except
for any expense, disbursement, or advance arising from the Trustee's negligence,
bad faith, or willful misfeasance, the Trust Fund shall pay or reimburse the
Trustee, for all reasonable expenses, disbursements, and advances incurred or
made by the Trustee in accordance with this Agreement with respect to:
(A) the reasonable compensation, expenses, and disbursements
of its counsel not associated with the closing of the issuance of the
Certificates;
(B) the reasonable compensation, expenses, and disbursements
of any accountant, engineer, or appraiser that is not regularly employed by the
Trustee, to the extent that the Trustee must engage them to perform services
under this Agreement; and
(C) printing and engraving expenses in connection with
preparing any Definitive Certificates.
Except as otherwise provided in this Agreement or a separate
letter agreement between the Trustee and the Depositor, the Trustee shall not be
entitled to payment or reimbursement for any routine ongoing expenses incurred
by the Trustee in the ordinary course of its duties as Trustee, Registrar, or
paying agent under this Agreement or for any other expenses.
Section 8.06 Eligibility Requirements for the Trustee. The
Trustee hereunder shall at all times be a corporation or association organized
and doing business under the laws of a state or the United States of America,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000, subject to supervision or
examination by federal or state authority and with a credit rating which would
not cause any of the Rating Agencies to reduce their respective then current
ratings of the Certificates (or having provided such security from time to time
as is sufficient to avoid such reduction) as evidenced in writing by each Rating
Agency. If such corporation or association publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section 8.06
the combined capital and surplus of such corporation or association shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall cease to
be eligible in accordance with this Section 8.06, the Trustee shall resign
immediately in the manner and with the effect specified in Section 8.07. The
entity serving as Trustee may have normal banking and trust relationships with
the Depositor and its affiliates or the Servicer and its affiliates; provided,
however, that such entity cannot be an affiliate of the Depositor or the
Servicer other than the Trustee in its role as successor to the Servicer.
Section 8.07 Resignation and Removal of the Trustee. The
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice of resignation to the Depositor, the Servicer and each
Rating Agency not less than 60 days before the date specified in such notice,
when, subject to Section 8.08, such resignation is to take effect, and
acceptance by a successor trustee in accordance with Section 8.08 meeting the
qualifications set forth in Section 8.06. If no successor trustee meeting such
qualifications shall have been so appointed and have accepted appointment within
30 days after the giving of such notice or resignation, the resigning Trustee
may petition any court of competent jurisdiction for the appointment of a
successor trustee.
If at any time the Trustee shall cease to be eligible in
accordance with Section 8.06 and shall fail to resign after written request
thereto by the Depositor, or if at any time the Trustee shall become incapable
of acting, or shall be adjudged as bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation, or a tax is imposed with respect
to the Trust Fund by any state in which the Trustee or the Trust Fund is located
and the imposition of such tax would be avoided by the appointment of a
different trustee, then the Depositor or the Servicer may remove the Trustee and
appoint a successor trustee by written instrument, in triplicate, one copy of
which shall be delivered to the Trustee, one copy to the Servicer and one copy
to the successor trustee.
The Holders of Certificates entitled to a majority of the
Voting Rights may at any time remove the Trustee and appoint a successor trustee
by written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which shall be
delivered by the successor Trustee to the Servicer, one complete set to the
Trustee so removed and one complete set to the successor so appointed. The
successor trustee shall notify each Rating Agency of any removal of the Trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to this Section 8.07 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section 8.08.
Section 8.08 Successor Trustee. Any successor trustee
appointed as provided in Section 8.07 shall execute, acknowledge and deliver to
the Depositor and to its predecessor trustee and the Servicer an instrument
accepting such appointment hereunder and thereupon the resignation or removal of
the predecessor trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor hereunder, with
the like effect as if originally named as trustee herein. The Depositor, the
Servicer and the predecessor trustee shall execute and deliver such instruments
and do such other things as may reasonably be required for more fully and
certainly vesting and confirming in the successor trustee all such rights,
powers, duties, and obligations.
No successor trustee shall accept appointment as provided in
this Section 8.08 unless at the time of its acceptance, the successor trustee is
eligible under Section 8.06 and its appointment does not adversely affect the
then current rating of the Certificates.
Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, the Depositor shall mail notice of the succession
of such trustee hereunder to all Holders of Certificates. If the Depositor fails
to mail such notice within 10 days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed at
the expense of the Depositor.
Section 8.09 Merger or Consolidation of the Trustee. Any
corporation into which the Trustee may be merged or converted or with which it
may be consolidated or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the business of the Trustee, shall be the successor of the Trustee
hereunder; provided, that such corporation shall be eligible under Section 8.06
without the execution or filing of any paper or further act on the part of any
of the parties hereto, anything herein to the contrary notwithstanding.
Section 8.10 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing any Mortgage Note may at the time be
located, the Servicer and the Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity and for the
benefit of the Certificateholders, such title to the Trust Fund or any part
thereof, whichever is applicable, and, subject to the other provisions of this
Section 8.10, such powers, duties, obligations, rights and trusts as the
Servicer and the Trustee may consider appropriate. If the Servicer shall not
have joined in such appointment within 15 days after the receipt by the Servicer
of a request to do so, or in the case an Event of Default shall have occurred
and be continuing, the Trustee alone shall have the power to make such
appointment. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 8.06 and no
notice to Certificateholders of the appointment of any co-trustee or separate
trustee shall be required under Section 8.08.
Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(a) To the extent necessary to effectuate the purposes of this
Section 8.10, all rights, powers, duties and obligations conferred or imposed
upon the Trustee, except for the obligation of the Trustee under this Agreement
to advance funds on behalf of the Servicer, shall be conferred or imposed upon
and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or co-trustee
is not authorized to act separately without the Trustee joining in such act),
except to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed (whether as Trustee hereunder or as
successor to the Servicer hereunder), the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the applicable Trust
Fund or any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at the
direction of the Trustee;
(b) No trustee hereunder shall be held personally liable
because of any act or omission of any other trustee hereunder and such
appointment shall not, and shall not be deemed to, constitute any such separate
trustee or co-trustee as agent of the Trustee;
(c) The Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee; and
(d) The Trust Fund, and not the Trustee, shall be liable for
the payment of reasonable compensation, reimbursement and indemnification to any
such separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the separate trustees and
co-trustees, when and as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to this
Agreement and the conditions of this Article VIII. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including every provision of
this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed with
the Trustee and a copy thereof given to the Servicer and the Depositor.
Any separate trustee or co-trustee may, at any time,
constitute the Trustee its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
Section 8.11 Tax Matters. It is intended that the assets with
respect to which any REMIC election pertaining to the Trust Fund is to be made,
as set forth in the Preliminary Statement, shall constitute, and that the
conduct of matters relating to such assets shall be such as to qualify such
assets as, a "real estate mortgage investment conduit" as defined in and in
accordance with the REMIC Provisions. In furtherance of such intention, the
Trustee covenants and agrees that it shall act as agent (and the Trustee is
hereby appointed to act as agent) on behalf of each Trust REMIC described in the
Preliminary Statement and that in such capacity it shall:
(a) prepare and file in a timely manner, a U.S. Real Estate
Mortgage Investment Conduit (REMIC) Income Tax Return (Form 1066 or any
successor form adopted by the Internal Revenue Service) and prepare and file
with the Internal Revenue Service and applicable state or local tax authorities
income tax or information returns for each taxable year with respect to each
Trust REMIC described in the Preliminary Statement containing such information
and at the times and in the manner as may be required by the Code or state or
local tax laws, regulations, or rules, and furnish to Certificateholders the
schedules, statements or information at such times and in such manner as may be
required thereby;
(b) within thirty days of the Closing Date, the Trustee will
apply for an employer identification number from the Internal Revenue Service
via Form SS-4 or any other acceptable method for all tax entities and shall also
furnish to the Internal Revenue Service, on Form 8811 or as otherwise may be
required by the Code, the name, title, address, and telephone number of the
person that the holders of the Certificates may contact for tax information
relating thereto, together with such additional information as may be required
by such Form, and update such information at the time or times in the manner
required by the Code;
(c) make an election that each of the Pooling-Tier REMIC, 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 8.11, the amount of any federal or state tax, including prohibited
transaction taxes as described below, imposed on any Trust REMIC before its
termination when and as the same shall be due and payable (but such obligation
shall not prevent the Trustee or any other appropriate Person from contesting
any such tax in appropriate proceedings and shall not prevent the Trustee from
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings);
(i) cause federal, state or local income tax or information
returns to be signed by the Trustee or such other person as may be required to
sign such returns by the Code or state or local laws, regulations or rules;
(j) maintain records relating to each of the Trust REMICs,
including the income, expenses, assets, and liabilities thereof on a calendar
year basis and on the accrual method of accounting and the fair market value and
adjusted basis of the assets determined at such intervals as may be required by
the Code, as may be necessary to prepare the foregoing returns, schedules,
statements or information; and
(k) as and when necessary and appropriate, represent 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 any Trust REMIC, enter into
settlement agreements with any governmental taxing agency, extend any statute of
limitations relating to any tax item of any Trust REMIC, and otherwise act on
behalf of each Trust REMIC in relation to any tax matter or controversy
involving it.
The Trustee shall treat the rights of the Class P
Certificateholders to receive Prepayment Premiums, the rights of the Class X
Certificateholders to receive Interest Rate Cap Payments (subject to the
obligation to pay Basis Risk Carry Forward Amounts) and the rights of the
Offered Certificateholders to receive Basis Risk Carry Forward Amounts as the
beneficial ownership of interests in a grantor trust and not as an obligations
of any Trust REMIC created hereunder, for federal income tax purposes.
To enable the Trustee to perform its duties under this
Agreement, the Depositor shall provide to the Trustee within ten days after the
Closing Date all information or data that the Trustee requests in writing and
determines to be relevant for tax purposes to the valuations and offering prices
of the Certificates, including the price, yield, prepayment assumption, and
projected cash flows of the Certificates and the Mortgage Loans. Moreover, the
Depositor shall provide information to the Trustee concerning the value, if any,
to each Class of Offered Certificates of the right to receive Basis Risk Carry
Forward Amounts from the Excess Reserve Fund Account. Unless otherwise advised
by the Depositor, for federal income tax purposes, the Trustee is hereby
directed to assign a value of zero to the right of each Holder of an Offered
Certificate to receive the related Basis Risk Carry Forward Amount for purposes
of allocating the purchase price of an initial Offered Certificateholder between
such right and the related Upper-Tier Regular Interest. Thereafter, the
Depositor shall provide to the Trustee promptly upon written request therefor
any additional information or data that the Trustee may, from time to time,
reasonably request to enable the Trustee to perform its duties under this
Agreement. The Depositor hereby indemnifies the Trustee for any losses,
liabilities, damages, claims, or expenses of the Trustee arising from any errors
or miscalculations of the Trustee that result from any failure of the Depositor
to provide, or to cause to be provided, accurate information or data to the
Trustee on a timely basis.
If any tax is imposed on "prohibited transactions" of any
Trust REMIC as defined in Section 860F(a)(2) of the Code, on the "net income
from foreclosure property" of the Pooling-Tier REMIC as defined in Section
860G(c) of the Code, on any contribution to any Trust REMIC after the Start-up
Day pursuant to Section 860G(d) of the Code, or any other tax is imposed,
including, if applicable, any minimum tax imposed on any Trust REMIC pursuant to
Sections 23153 and 24874 of the California Revenue and Taxation Code, if not
paid as otherwise provided for herein, the tax shall be paid by (i) the Trustee
if such tax arises out of or results from negligence of the Trustee in the
performance of any of its obligations under this Agreement, (ii) the Servicer,
in the case of any such minimum tax, and otherwise if such tax arises out of or
results from a breach by the Servicer of any of its obligations under this
Agreement, (iii) the Responsible Party if such tax arises out of or results from
the Responsible Party's obligation to repurchase a Mortgage Loan pursuant to
Section 2.03, or (iv) in all other cases, or if the Trustee, the Servicer or the
Responsible Party fails to honor its obligations under the preceding clause (i),
(ii), or (iii), any such tax will be paid with amounts otherwise to be
distributed to the Certificateholders, as provided in Section 4.02(a).
Section 8.12 Periodic Filings. (a) The Trustee and the
Servicer shall reasonably cooperate with the Depositor in connection with the
Trust's satisfying the reporting requirements under the Exchange Act. Except as
provided for in Section 8.12(b), the Trustee shall prepare on behalf of the
Trust any Forms 8-K and 10-K customary for similar securities as required by the
Exchange Act and the Rules and Regulations of the Securities and Exchange
Commission thereunder, and the Trustee shall sign and file (via the Securities
and Exchange Commission's Electronic Data Gathering and Retrieval System) such
Forms on behalf of the Depositor, if an officer of the Depositor signs the
Certification pursuant to paragraph (b) of this Section 8.12, or otherwise on
behalf of the Trust. In the event the Trustee is signing on behalf of the
Depositor pursuant to the preceding sentence, the Depositor hereby grants to the
Trustee a limited power of attorney to execute and file each such document on
behalf of the Depositor. Such power of attorney shall continue until the earlier
of either (i) receipt by the Trustee from the Depositor of written termination
of such power of attorney and (ii) the termination of the Trust. Notwithstanding
the foregoing, the Trustee shall prepare such Form 10-K to be signed by the
Depositor and the Depositor shall sign such form unless the Securities and
Exchange Commission has indicated that it will accept a Certification signed by
the Depositor where the related Form 10-K is signed by the Trustee on behalf of
the Depositor.
(b) The Depositor shall prepare or cause to be prepared and
file the Current Report on Form 8-K attaching this Agreement as an exhibit and,
thereafter each Form 8-K shall be filed by the Trustee within 15 days after each
Distribution Date, including a copy of the statement to the Certificateholders
for such Distribution Date as an exhibit thereto. On or prior to March 30th of
each year (or such earlier date as may be required by the Exchange Act and the
Rules and Regulations of the Securities and Exchange Commission), the Trustee
shall file a Form 10-K, in substance as required by applicable law or applicable
Securities and Exchange Commission staff's interpretations. Such Form 10-K shall
include as exhibits the Servicer's annual statement of compliance described
under Section 3.22 and the accountant's report described under Section 3.23, in
each case to the extent they have been timely delivered to the Trustee. If they
are not so timely delivered, the Trustee shall file an amended Form 10-K
including such documents as exhibits reasonably promptly after they are
delivered to the Trustee. The Trustee shall have no liability with respect to
any failure to properly prepare or file such periodic reports resulting from or
relating to the Trustee's inability or failure to obtain any information not
resulting from its own negligence, willful misconduct or bad faith. The Form
10-K shall also include a certification in the form attached hereto as Exhibit M
(the "Certification"), which shall, except as described below, be signed by the
senior officer of the Depositor in charge of securitization. Notwithstanding the
foregoing, if it is determined by the Depositor that the Certification may be
executed by multiple persons, the Depositor shall sign the Certification in
respect of items 1 through 3 thereof and the Servicer shall cause the senior
officer in charge of servicing at the Servicer to sign the Certification in
respect of items 4 and 5 thereof, and the Depositor may rely on the
Certification signed by the Servicer to the same extent as provided in
subsection (c) below.
(c) In the event the Certification is to be signed by an
officer of the Depositor, the Trustee shall sign a certification (in the form
attached hereto as Exhibit N) for the benefit of the Depositor and its officers,
directors and Affiliates in respect of items 1 through 3 of the Certification
(provided, however, that the Trustee shall not undertake an analysis of the
accountant's report attached as an exhibit to the Form 10-K), and the Servicer
shall sign a certification (in the form attached hereto as Exhibit O) for the
benefit of the Depositor, the Trustee and their officers, directors and
Affiliates in respect of items 4 and 5 of the Certification. Each such
certification shall be delivered by March 25th to the Depositor and the Trustee
by March 20th of each year (or if not a Business Day, the immediately preceding
Business Day). The Certification attached hereto as Exhibit M shall be delivered
to the Trustee for filing on or prior to March 30th of each year (or if not a
Business Day, the immediately preceding Business Day). In addition, (i) the
Trustee shall indemnify and hold harmless the Depositor and its officers,
directors and Affiliates from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other costs and expenses arising out of or based upon a breach of the
Trustee's obligations under this Section 8.12(c) or the Trustee's negligence,
bad faith or willful misconduct in connection therewith, and (ii) the Servicer
shall indemnify and hold harmless the Depositor, the Trustee and their
respective officers, directors and Affiliates from and against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments and other costs and expenses arising out of or based
upon a breach of the Servicer's obligations under this Section 8.12(c) or the
Servicer's negligence, bad faith or willful misconduct in connection therewith.
If the indemnification provided for herein is unavailable or insufficient to
hold harmless the indemnified party, then (i) the Trustee agrees in connection
with a breach of the Trustee's obligations under this Section 8.12(c) or the
Trustee's negligence, bad faith or willful misconduct in connection therewith
that it shall contribute to the amount paid or payable by the Depositor as a
result of the losses, claims, damages or liabilities of the Depositor in such
proportion as is appropriate to reflect the relative fault of the Depositor on
the one hand and the Trustee on the other and (ii) the Servicer agrees that it
shall contribute to the amount paid or payable by the Depositor and/or the
Trustee as a result of the losses, claims, damages or liabilities of the
Depositor and/or the Trustee in such proportion as is appropriate to reflect the
relative fault of the Depositor or the Trustee, as the case may be, on the one
hand and the Servicer on the other in connection with a breach of the Servicer'
obligations under this Section 8.12(c) or the Servicer's negligence, bad faith
or willful misconduct in connection therewith.
(d) Upon any filing with the Securities and Exchange
Commission, the Trustee shall promptly deliver to the Depositor a copy of any
such executed report, statement or information.
(e) Prior to January 30 of the first year in which the Trustee
is able to do so under applicable law, the Trustee shall file a Form 15
Suspension Notification with respect to the Trust.
Section 8.13 Tax Classification of the Excess Reserve Fund
Account and the Cap Agreement. For federal income tax purposes, the Trustee
shall treat the Excess Reserve Fund Account and the Cap Agreement as
beneficially owned by the holders of the Class X Certificates and shall treat
such portion of the Trust Fund as a grantor trust under subpart E, Part I of
subchapter J of the Code. The Trustee shall treat the rights that each Class of
Offered Certificates has to receive payments of Basis Risk Carry Forward Amounts
from the Excess Reserve Fund Account as rights to receive payments under an
interest rate cap contract written by the Class X Certificateholders in favor of
each such Class and beneficially owned by each such Class through the grantor
trust. Accordingly, each Class of Offered Certificates will be comprised of two
components - an Upper-Tier Regular Interest and an interest in an interest rate
cap contract, and the Class X Certificates will be comprised of three components
- an Upper-Tier Regular Interest, ownership of the Cap Agreement and ownership
of the Excess Reserve Fund Account, subject to an obligation to pay Basis Risk
Carry Forward Amounts. The Trustee shall allocate the issue price for a Class of
Certificates among the respective components for purposes of determining the
issue price of the Upper-Tier Regular Interest component based on information
received from the Depositor.
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Liquidation or Purchase of the
Mortgage Loans. Subject to Section 9.03, the obligations and responsibilities of
the Depositor, the Servicer and the Trustee created hereby with respect to the
Trust Fund shall terminate upon the earlier of (a) the purchase, on or after the
Optional Termination Date, by the Majority Class X Certificateholder or the
Servicer, of all Mortgage Loans (and REO Properties) at the price equal to the
sum of (i) 100% of the unpaid principal balance of each Mortgage Loan (other
than in respect of REO Property) plus accrued and unpaid interest thereon at the
applicable Mortgage Interest Rate, together with any unpaid remaining Basis Risk
Carry Forward Amounts, and (ii) the lesser of (x) the appraised value of any REO
Property as determined by the higher of two appraisals completed by two
independent appraisers selected by the Person seeking to purchase such Mortgage
Loans, at the expense of such Person, plus accrued and unpaid interest on the
related Mortgage Loan at the applicable Mortgage Interest Rates and (y) the
unpaid principal balance of each Mortgage Loan related to any REO Property, in
each case plus accrued and unpaid interest thereon at the applicable Mortgage
Interest Rate ("Termination Price") and (b) the later of (i) the maturity or
other Liquidation Event (or any Advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Fund and the disposition of all REO
Property and (ii) the distribution to Certificateholders of all amounts required
to be distributed to them pursuant to this Agreement. In no event shall the
trusts created hereby continue beyond the expiration of 21 years from the death
of the survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of
the United States to the Court of St. James's, living on the date hereof.
Section 9.02 Final Distribution on the Certificates. If on any
Remittance Date, the Servicer determines that there are no Outstanding Mortgage
Loans and no other funds or assets in the Trust Fund other than the funds in the
Collection Account, the Servicer shall direct the Trustee promptly to send a
Notice of Final Distribution to each Certificateholder. If the Servicer elects
to terminate the Trust Fund pursuant to clause (a) of Section 9.01, at least 20
days prior to the date the Notice of Final Distribution is to be mailed to the
affected Certificateholders, the Depositor shall notify the Servicer and the
Trustee of the date the Depositor intends 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 Trustee
by letter to Certificateholders mailed not later than the 15th day of the month
of such final distribution. Any such Notice of Final Distribution shall specify
(a) the Distribution Date upon which final distribution on the Certificates will
be made upon presentation and surrender of Certificates at the office therein
designated, (b) the amount of such final distribution, (c) the location of the
office or agency at which such presentation and surrender must be made, and (d)
that the Record Date otherwise applicable to such Distribution Date is not
applicable, distributions being made only upon presentation and surrender of the
Certificates at the office therein specified. The Trustee will give such Notice
of Final Distribution to each Rating Agency at the time such Notice of Final
Distribution is given to Certificateholders.
In the event such Notice of Final Distribution is given, the
Servicer shall cause all funds in the Collection Account to be remitted to the
Trustee for deposit in the Distribution Account on the Business Day prior to the
applicable Distribution Date in an amount equal to the final distribution in
respect of the Certificates. Upon such final deposit with respect to the Trust
Fund and the receipt by the Trustee of a Request for Release therefor, the
Trustee shall promptly release to the Depositor or its designee the Custodial
Files for the Mortgage Loans.
Upon presentation and surrender of the Certificates, the
Trustee shall cause to be distributed to the Certificateholders of each Class
(after reimbursement of all amounts due to the Servicer, the Depositor and the
Trustee hereunder), in each case on the final Distribution Date and in the order
set forth in Section 4.02, in proportion to their respective Percentage
Interests, with respect to Certificateholders of the same Class, an amount up to
an amount equal to (i) as to each Class of Regular Certificates (except the
Class X Certificates), the Certificate Balance thereof plus for each such Class
and the Class X Certificates accrued interest thereon in the case of an
interest-bearing Certificate and all other amounts to which such Classes are
entitled pursuant to Section 4.02, (ii) as to the Residual Certificates, the
amount, if any, which remains on deposit in the Distribution Account (other than
the amounts retained to meet claims) after application pursuant to clause (i)
above.
In the event that any affected Certificateholders shall not
surrender Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Trustee shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within six months after the second notice all the applicable
Certificates shall not have been surrendered for cancellation, the Trustee may
take appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets which remain a part of the Trust Fund. If within one year after the
second notice all Certificates shall not have been surrendered for cancellation,
the Class R Certificateholders shall be entitled to all unclaimed funds and
other assets of the Trust Fund which remain subject hereto.
Section 9.03 Additional Termination Requirements. In the event
the Majority Class X Certificateholder or the Servicer exercises its purchase
option with respect to the Mortgage Loans as provided in Section 9.01, the Trust
Fund shall be terminated in accordance with the following additional
requirements, unless the Trustee has been supplied with an Opinion of Counsel,
at the expense of the Depositor, to the effect that the failure to comply with
the requirements of this Section 9.03 will not (i) result in the imposition of
taxes on "prohibited transactions" on any Trust REMIC as defined in Section 860F
of the Code, or (ii) cause any Trust REMIC to fail to qualify as a REMIC at any
time that any Certificates are outstanding:
(a) The Trustee shall sell all of the assets of the Trust Fund
to the Depositor, and, within 90 days of such sale, shall distribute to the
Certificateholders the proceeds of such sale in complete liquidation of each of
the Trust REMICs; and
(b) The Trustee shall attach a statement to the final federal
income tax return for each of the Trust REMICs stating that pursuant to Treasury
Regulations Section 1.860F-1, the first day of the 90-day liquidation period for
each such Trust REMIC was the date on which the Trustee sold the assets of the
Trust Fund to the Depositor.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Amendment. This Agreement may be amended from
time to time by the Depositor, the Responsible Party, the Servicer and the
Trustee without the consent of any of the Certificateholders (i) to cure any
ambiguity or mistake, (ii) to correct any defective provision herein or to
supplement any provision herein which may be inconsistent with any other
provision herein, (iii) to add to the duties of the Depositor or the Servicer,
(iv) to add any other provisions with respect to matters or questions arising
hereunder or (v) to modify, alter, amend, add to or rescind any of the terms or
provisions contained in this Agreement; provided, that any action pursuant to
clause (iv) or (v) above shall not, as evidenced by an Opinion of Counsel (which
Opinion of Counsel shall not be an expense of the Trustee or the Trust Fund),
adversely affect in any material respect the interests of any Certificateholder;
provided, further, that the amendment shall not be deemed to adversely affect in
any material respect the interests of the Certificateholders if the Person
requesting the amendment obtains a letter from each Rating Agency stating that
the amendment would not result in the downgrading or withdrawal of the
respective ratings then assigned to the Certificates; it being understood and
agreed that any such letter in and of itself will not represent a determination
as to the materiality of any such amendment and will represent a determination
only as to the credit issues affecting any such rating. The Trustee, the
Depositor, the Responsible Party and the Servicer also may at any time and from
time to time amend this Agreement, but without the consent of the
Certificateholders to modify, eliminate or add to any of its provisions to such
extent as shall be necessary or helpful to (i) maintain the qualification of
each Trust REMIC under the REMIC Provisions, (ii) avoid or minimize the risk of
the imposition of any tax on any Trust REMIC pursuant to the Code that would be
a claim at any time prior to the final redemption of the Certificates or (iii)
comply with any other requirements of the Code; provided, that the Trustee has
been provided an Opinion of Counsel, which opinion shall be an expense of the
party requesting such opinion but in any case shall not be an expense of the
Trustee or the Trust Fund, to the effect that such action is necessary or
helpful to, as applicable, (i) maintain such qualification, (ii) avoid or
minimize the risk of the imposition of such a tax or (iii) comply with any such
requirements of the Code.
This Agreement may also be amended from time to time by the
Depositor, the Servicer, the Responsible Party and the Trustee with the consent
of the Holders of Certificates evidencing Percentage Interests aggregating not
less than 662/3% of each Class of Certificates affected thereby for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Holders of Certificates; provided, however, that no such amendment shall (i)
reduce in any manner the amount of, or delay the timing of, payments required to
be distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) adversely affect in any material respect the interests of the
Holders of any Class of Certificates in a manner other than as described in
clause (i), without the consent of the Holders of Certificates of such Class
evidencing, as to such Class, Percentage Interests aggregating not less than
662/3%, or (iii) reduce the aforesaid percentages of Certificates the Holders of
which are required to consent to any such amendment, without the consent of the
Holders of all such Certificates then outstanding.
The Responsible Party shall be obligated to execute any
amendment to this Agreement, unless such amendment would adversely affect in any
material respect the rights or obligations of the Responsible Party.
Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement unless (i) it shall
have first received an Opinion of Counsel, which opinion shall not be an expense
of the Trustee or the Trust Fund, to the effect that such amendment will not
cause the imposition of any tax on any Trust REMIC or the Certificateholders or
cause any Trust REMIC to fail to qualify as a REMIC at any time that any
Certificates are outstanding and (ii) the party seeking such amendment shall
have provided written notice to the Rating Agencies (with a copy of such notice
to the Trustee) of such amendment, stating the provisions of the Agreement to be
amended.
Notwithstanding the foregoing provisions of this Section
10.01, with respect to any amendment that significantly modifies the permitted
activities of the Trustee or the Servicer, any Certificate beneficially owned by
the Depositor or any of its Affiliates or by the Responsible Party shall be
deemed not to be outstanding (and shall not be considered when determining the
percentage of Certificateholders consenting or when calculating the total number
of Certificates entitled to consent) for purposes of determining if the
requisite consents of Certificateholders under this Section 10.01 have been
obtained.
Promptly after the execution of any amendment to this
Agreement requiring the consent of Certificateholders, the Trustee shall furnish
written notification of the substance or a copy of such amendment to each
Certificateholder and each Rating Agency.
It shall not be necessary for the consent of
Certificateholders under this Section 10.01 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee to enter
into an amendment which modifies its obligations or liabilities without its
consent and in all cases without receiving an Opinion of Counsel (which Opinion
shall not be an expense of the Trustee or the Trust Fund), satisfactory to the
Trustee that (i) such amendment is permitted and is not prohibited by this
Agreement and that all requirements for amending this Agreement have been
complied with; and (ii) either (A) the amendment does not adversely affect in
any material respect the interests of any Certificateholder or (B) the
conclusion set forth in the immediately preceding clause (A) is not required to
be reached pursuant to this Section 10.01.
Section 10.02 Recordation of Agreement; Counterparts. This
Agreement is subject to recordation in all appropriate public offices for real
property records in all the counties or other comparable jurisdictions in which
any or all of the properties subject to the Mortgages are situated, and in any
other appropriate public recording office or elsewhere, such recordation to be
effected by the Servicer at the expense of the Trust, but only upon receipt of
an Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders.
For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
Section 10.03 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO AND THE
CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.04 Intention of Parties. It is the express intent
of the parties hereto that the conveyance (i) of the Mortgage Loans by the
Depositor and (ii) of the Trust Fund by the Depositor to the Trustee each be,
and be construed as, an absolute sale thereof. It is, further, not the intention
of the parties that such conveyances be deemed a pledge thereof. However, in the
event that, notwithstanding the intent of the parties, such assets are held to
be the property of the Depositor, as the case may be, or if for any other reason
this Agreement is held or deemed to create a security interest in either such
assets, then (i) this Agreement shall be deemed to be a security agreement
within the meaning of the Uniform Commercial Code of the State of New York and
(ii) the conveyances provided for in this Agreement shall be deemed to be an
assignment and a grant by the Depositor to the Trustee, for the benefit of the
Certificateholders, of a security interest in all of the assets transferred,
whether now owned or hereafter acquired.
The Depositor, for the benefit of the Certificateholders,
shall, to the extent consistent with this Agreement, take such actions as may be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the Trust Fund, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of the Agreement. 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 10.05 Notices. (a) The Trustee shall use its best
efforts to promptly provide notice to each Rating Agency with respect to each of
the following of which it has actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Event of Default that has not been
cured;
3. The resignation or termination of the Servicer or the
Trustee and the appointment of any successor;
4. The repurchase or substitution of Mortgage Loans pursuant
to Sections 2.03, 2.07 or 3.28; and
5. The final payment to Certificateholders.
(b) In addition, the Trustee shall promptly make available on
its internet website to each Rating Agency copies of the following:
1. Each report to Certificateholders described in Section
4.03.
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
(and, in the case of the Officer's Certificate delivered pursuant to Section
3.22, to PricewaterhouseCoopers LLP, 000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxx
Xxxxx, Xxxxxxx 00000, Attention: Xxxxxxxx Xxxxxxx), or such other address as may
be hereafter furnished to the Trustee and the Servicer by the Depositor in
writing; (b) in the case of the Servicer, Chase Manhattan Mortgage Corporation,
00000 Xxxxxx Xxxxxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000, Attention: Xxxxx Dunks (with
a copy to 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx 00000, Attention: General
Counsel), or such other address as may be hereafter furnished to the Depositor
and the Trustee by the Servicer in writing; (c) in the case of the Responsible
Party to Accredited Home Lenders, Inc, 00000 Xxxxxx xx Xxxxxxx, Xxx Xxxxx,
Xxxxxxxxxx 00000, Attention: Director of Operations or such other address as may
be hereafter furnished to the Depositor and Trustee by the Responsible Party in
writing; (d) in the case of the Trustee to the Corporate Trust Office and Xxxxx
Fargo Bank Minnesota, N.A., X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000, Attention:
Corporate Trust Services- GSAMP 2003-AHL, or such other address as the Trustee
may hereafter furnish to the Depositor or the Servicer and (f) in the case of
each of the Rating Agencies, the address specified therefor in the definition
corresponding to the name of such Rating Agency. Notices to Certificateholders
shall be deemed given when mailed, first class postage prepaid, to their
respective addresses appearing in the Certificate Register.
Section 10.06 Severability of Provisions. If any one or more
of the covenants, agreements, provisions or terms of this Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 10.07 Assignment; Sales; Advance Facilities. (a)
Notwithstanding anything to the contrary contained herein, except as provided in
Section 6.02, this Agreement may be assigned by the Servicer with the prior
written consent of the Depositor and the Trustee. In addition, for so long as
the Servicer is acting as the Servicer hereunder (i) the Servicer is hereby
authorized to enter into an advance facility ("Advance Facility") under which
(A) the Servicer sells, assigns or pledges to an Advancing Person the Servicer's
rights under this Agreement to be reimbursed for any P&I Advances or Servicing
Advances and/or (B) an Advancing Person agrees to fund some or all P&I Advances
or Servicing Advances required to be made by the Servicer pursuant to this
Agreement and (ii) the Servicer is hereby authorized to assign its rights to the
Servicing Fee; it being understood neither the Trust Fund nor any party hereto
shall have a right or claim (including without limitation any right of offset)
to the portion of the Servicing Fee so assigned; it being further understood
that upon the resignation or termination of the Servicer, such Advance Facility
(in the case of clause (i)) and such assignment (in the case of clause (ii))
shall be terminated. No consent of the Trustee, Certificateholders or any other
party is required before the Servicer may enter into an Advance Facility.
Notwithstanding the existence of any Advance Facility under which an Advancing
Person agrees to fund P&I Advances and/or Servicing Advances on the Servicer's
behalf, the Servicer shall remain obligated pursuant to this Agreement to make
P&I Advances and Servicing Advances pursuant to and as required by this
Agreement, and shall not be relieved of such obligations by virtue of such
Advance Facility.
(b) Reimbursement amounts shall consist solely of amounts in
respect of P&I Advances and/or Servicing Advances made with respect to the
Mortgage Loans for which the Servicer would be permitted to reimburse itself in
accordance with this Agreement, assuming the Servicer had made the related P&I
Advance(s) and/or Servicing Advance(s).
(c) The Servicer shall maintain and provide to any successor
Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced
by, pledged or assigned to, and reimbursed to any Advancing Person. The
successor Servicer shall be entitled to rely on any such information provided by
the predecessor Servicer, and the successor Servicer shall not be liable for any
errors in such information.
(d) An Advancing Person who purchases or receives an
assignment or pledge of the rights to be reimbursed for P&I Advances and/or
Servicing Advances, and/or whose obligations hereunder are limited to the
funding of P&I Advances and/or Servicing Advances shall not be required to meet
the criteria for qualification of a Subservicer set forth in this Agreement.
(e) The documentation establishing any Advance Facility shall
require that such reimbursement amounts distributed with respect to each
Mortgage Loan be allocated to outstanding xxxxxxxxxxxx X&X Advances or Servicing
Advances (as the case may be) made with respect to that Mortgage Loan on a
"first-in, first out" (FIFO) basis. Such documentation shall also require the
Servicer to provide to the related Advancing Person or its designee loan-by-loan
information with respect to each such reimbursement amount distributed to such
Advancing Person or Advance Facility trustee on each Distribution Date, to
enable the Advancing Person or Advance Facility trustee to make the FIFO
allocation of each such reimbursement amount with respect to each Mortgage Loan.
The Servicer shall remain entitled to be reimbursed by the Advancing Person or
Advance Facility trustee for all P&I Advances and Servicing Advances funded by
the Servicer to the extent the related rights to be reimbursed therefor have not
been sold, assigned or pledged to an Advancing Person.
(f) Any amendment to this Section 10.07 or to any other
provision of this Agreement that may be necessary or appropriate to effect the
terms of an Advance Facility as described generally in this Section 10.07,
including amendments to add provisions relating to a successor Servicer, may be
entered into by the Trustee, the Depositor and the Servicer without the consent
of any Certificateholder, notwithstanding anything to the contrary in this
Agreement, provided, that the Trustee has been provided an Opinion of Counsel
that such amendment has no material adverse effect on the Certificateholders
which opinion shall be an expense of the party requesting such opinion but in
any case shall not be an expense of the Trustee or the Trust Fund; provided,
further, that the amendment shall not be deemed to adversely affect in any
material respect the interests of the Certificateholders if the Person
requesting the amendment obtains a letter from each Rating Agency (instead of
obtaining an Opinion of Counsel) stating that the amendment would not result in
the downgrading or withdrawal of the respective ratings then assigned to the
Certificates; it being understood and agreed that any such rating letter in and
of itself will not represent a determination as to the materiality of any such
amendment and will represent a determination only as to the credit issues
affecting any such rating. Prior to entering into an Advance Facility, the
Servicer shall notify the lender under such facility in writing that: (a) the
Advances financed by and/or pledged to the lender are obligations owed to the
Servicer on a non-recourse basis payable only from the cash flows and proceeds
received under this Agreement for reimbursement of Advances only to the extent
provided herein, and the Trustee and the Trust are not otherwise obligated or
liable to repay any Advances financed by the lender; (b) the Servicer will be
responsible for remitting to the lender the applicable amounts collected by it
as reimbursement for Advances funded by the lender, subject to the restrictions
and priorities created in this Agreement; and (c) the Trustee shall not have any
responsibility to track or monitor the administration of the financing
arrangement between the Servicer and the lender.
Section 10.08 Limitation on Rights of Certificateholders. The
death or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the trust created hereby, nor entitle such Certificateholder's
legal representative or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a petition or winding up of the trust
created hereby, or otherwise affect the rights, obligations and liabilities of
the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as
provided herein) or in any manner otherwise control the operation and management
of the Trust Fund, or the obligations of the parties hereto, nor shall anything
herein set forth or contained in the terms of the Certificates be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to any
third party by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by
availing itself of any provisions of this Agreement to institute any suit,
action or proceeding in equity or at law upon or under or with respect to this
Agreement, unless such Holder previously shall have given to the Trustee a
written notice of an Event of Default and of the continuance thereof, as herein
provided, and unless the Holders of Certificates evidencing not less than 25% of
the Voting Rights evidenced by the Certificates shall also have made written
request to the Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses, and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity shall have neglected or refused to
institute any such action, suit or proceeding; it being understood and intended,
and being expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or seek
to obtain priority over or preference to any other such Holder or to enforce any
right under this Agreement, except in the manner herein provided and for the
common benefit of all Certificateholders. For the protection and enforcement of
the provisions of this Section 10.08, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 10.09 Inspection and Audit Rights. The Servicer agrees
that on 15 day's prior notice, it will permit any representative of the
Depositor or the Trustee during such Person's normal business hours, to examine
all the books of account, records, reports and other papers of such Person
relating to the Mortgage Loans, to make copies and extracts therefrom, to cause
such books to be audited by independent certified public accountants selected by
the Depositor or the Trustee and to discuss its affairs, finances and accounts
relating to such Mortgage Loans with its officers, employees and independent
public accountants (and by this provision the Servicer hereby authorizes said
accountants to discuss with such representative such affairs, finances and
accounts), all at such reasonable times and as often as may be reasonably
requested. Any reasonable out-of-pocket expense of the Servicer incident to the
exercise by the Depositor or the Trustee of any right under this Section 10.09
shall be borne by the Servicer.
Section 10.10 Certificates Nonassessable and Fully Paid. It is
the intention of the Depositor that Certificateholders shall not be personally
liable for obligations of the Trust Fund, that the interests in the Trust Fund
represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Trustee pursuant to this Agreement, are and shall be deemed fully paid.
Section 10.11 Waiver of Jury Trial. EACH PARTY HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES (TO THE EXTENT PERMITTED BY
APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING
UNDER OR RELATING TO THIS AGREEMENT AND AGREES THAT ANY SUCH DISPUTE SHALL BE
TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.
* * * * * * *
IN WITNESS WHEREOF, the Depositor, the Trustee, the Servicer and the
Responsible Party have caused their names to be signed hereto by their
respective officers thereunto duly authorized as of the day and year first above
written.
GS MORTGAGE SECURITIES CORP.,
as Depositor
By: /s/ Xxxxxx Xxxxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Treasurer
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
solely as Trustee and not in its
individual capacity
By: /s/ Xxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
CHASE MANHATTAN MORTGAGE CORPORATION,
as Servicer
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
ACCREDITED HOME LENDERS, INC.,
as Servicer and Responsible Party
By: /s/ Xxxxx. X. Xxxxxxx
--------------------------------------
Name: Xxxxx. X. Xxxxxxx
Title: GC, AVP & Ass't Sec'y
SCHEDULE I
Mortgage Loan Schedule
SCHEDULE II
GSAMP Mortgage Loan Trust 2003-AHL,
Mortgage Pass-Through Certificates
Representations and Warranties of Chase Manhattan Mortgage Corporation,
as Servicer
Chase Manhattan Mortgage Corporation ("Chase") hereby makes
the representations and warranties set forth in this Schedule II to the
Depositor and the Trustee, as of the Closing Date, or if so specified herein, as
of the Cut-off Date. Capitalized terms used but not otherwise defined in this
Schedule II shall have the meanings ascribed thereto in the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement") relating to the
above-referenced Series.
(1) Chase is a New Jersey corporation duly organized, validly
existing and in good standing under the laws of the state of New
Jersey and is duly authorized and qualified to transact any and all
business contemplated by this Pooling and Servicing Agreement to be
conducted by Chase in any state in which a Mortgaged Property
securing an Mortgage Loan is located or is otherwise not required
under applicable law to effect such qualification and, in any event,
is in compliance with the doing business laws of any such State, to
the extent necessary to ensure its ability to enforce each Mortgage
Loan and to service the Mortgage Loans in accordance with the terms
of this Pooling and Servicing Agreement;
(2) Chase has the full power and authority to service each
Mortgage Loan, and to execute, deliver and perform, and to enter
into and consummate the transactions contemplated by this Pooling
and Servicing Agreement and has duly authorized by all necessary
action on the part of Chase the execution, delivery and performance
of this Pooling and Servicing Agreement; and this Pooling and
Servicing Agreement, assuming the due authorization, execution and
delivery thereof by the Depositor, the Responsible Party and the
Trustee, constitutes a legal, valid and binding obligation of Chase,
enforceable against Chase in accordance with its terms, except to
the extent that (a) the enforceability thereof may be limited by
bankruptcy, insolvency, moratorium, receivership and other similar
laws relating to creditors' rights generally and (b) the remedy of
specific performance and injunctive and other forms of equitable
relief may be subject to the equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought;
(3) The execution and delivery of this Pooling and Servicing
Agreement by Chase, the servicing of the Mortgage Loans by Chase
hereunder, the consummation by Chase of any other of the
transactions herein contemplated, and the fulfillment of or
compliance with the terms hereof are in the ordinary course of
business of Chase and will not (A) result in a breach of any term or
provision of the organizational documents of Chase or (B) conflict
with, result in a breach, violation or acceleration of, or result in
a default under, the terms of any other material agreement or
instrument to which Chase is a party or by which it may be bound, or
any statute, order or regulation applicable to Chase of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over Chase; and Chase is not a party to, bound by, or
in breach or violation of any indenture or other agreement or
instrument, or subject to or in violation of any statute, order or
regulation of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it, which materially and
adversely affects or, to Chase's knowledge, would in the future
materially and adversely affect, (x) the ability of Chase to perform
its obligations under this Pooling and Servicing Agreement or (y)
the business, operations, financial condition, properties or assets
of Chase taken as a whole;
(4) Chase is an approved seller/servicer for Xxxxxx Xxx, an
approved servicer for Xxxxxxx Mac in good standing and is a HUD
approved non-supervised mortgagee;
(5) No litigation is pending against Chase that would
materially and adversely affect the execution, delivery or
enforceability of this Pooling and Servicing Agreement or the
ability of Chase to service the Mortgage Loans or to perform any of
its other obligations hereunder in accordance with the terms hereof;
(6) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution,
delivery and performance by Chase of, or compliance by Chase with,
this Pooling and Servicing Agreement or the consummation by Chase of
the transactions contemplated by this Pooling and Servicing
Agreement, except for such consents, approvals, authorizations or
orders, if any, that have been obtained prior to the Closing Date;
and
(7) Chase has the facilities, procedures and experienced
personnel necessary for the sound servicing of mortgage loans of the
same type as the Mortgage Loans.
SCHEDULE III
GSAMP Mortgage Loan Trust 2003-AHL,
Mortgage Pass-Through Certificates
Representations and Warranties of Accredited Home Lenders, Inc., as Servicer
and Responsible Party
Accredited Home Lenders, Inc., ("Accredited") hereby makes the
representations and warranties set forth in this Schedule III to the Depositor,
Chase and the Trustee, as of the Closing Date, or if so specified herein, as of
the Cut-off Date. Capitalized terms used but not otherwise defined in this
Schedule III shall have the meanings ascribed thereto in the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement") relating to the
above-referenced Series.
(1) Accredited is a California corporation duly organized,
validly existing and in good standing under the laws of the state of
California and is duly authorized and qualified to transact any and
all business contemplated by this Pooling and Servicing Agreement to
be conducted by Accredited in any state in which a Mortgaged
Property securing an Mortgage Loan is located or is otherwise not
required under applicable law to effect such qualification and, in
any event, is in compliance with the doing business laws of any such
State, to the extent necessary to ensure its ability to enforce each
Mortgage Loan and to service the Mortgage Loans in accordance with
the terms of this Pooling and Servicing Agreement;
(2) Accredited has the full power and authority to service
each Mortgage Loan, and to execute, deliver and perform, and to
enter into and consummate the transactions contemplated by this
Pooling and Servicing Agreement and has duly authorized by all
necessary action on the part of Accredited the execution, delivery
and performance of this Pooling and Servicing Agreement; and this
Pooling and Servicing Agreement, assuming the due authorization,
execution and delivery thereof by the Depositor, Chase and the
Trustee, constitutes a legal, valid and binding obligation of
Accredited, enforceable against Accredited in accordance with its
terms, except to the extent that (a) the enforceability thereof may
be limited by bankruptcy, insolvency, moratorium, receivership and
other similar laws relating to creditors' rights generally and (b)
the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to the equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought;
(3) The execution and delivery of this Pooling and Servicing
Agreement by Accredited, the servicing of the Mortgage Loans by
Accredited hereunder, the consummation by Accredited of any other of
the transactions herein contemplated, and the fulfillment of or
compliance with the terms hereof are in the ordinary course of
business of Accredited and will not (A) result in a breach of any
term or provision of the organizational documents of Accredited or
(B) conflict with, result in a breach, violation or acceleration of,
or result in a default under, the terms of any other material
agreement or instrument to which Accredited is a party or by which
it may be bound, or any statute, order or regulation applicable to
Accredited of any court, regulatory body, administrative agency or
governmental body having jurisdiction over Accredited; and
Accredited is not a party to, bound by, or in breach or violation of
any indenture or other agreement or instrument, or subject to or in
violation of any statute, order or regulation of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over it, which materially and adversely affects or, to
Accredited's knowledge, would in the future materially and adversely
affect, (x) the ability of Accredited to perform its obligations
under this Pooling and Servicing Agreement or (y) the business,
operations, financial condition, properties or assets of Accredited
taken as a whole;
(4) No litigation is pending against Accredited that would
materially and adversely affect the execution, delivery or
enforceability of this Pooling and Servicing Agreement or, except as
disclosed in 2003 filings with the Securities and Exchange
Commission by Accredited's parent, Accredited Home Lenders Holding
Co., the ability of Accredited to service the Mortgage Loans or to
perform any of its other obligations hereunder in accordance with
the terms hereof;
(5) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution,
delivery and performance by Accredited of, or compliance by
Accredited with, this Pooling and Servicing Agreement or the
consummation by Accredited of the transactions contemplated by this
Pooling and Servicing Agreement, except for such consents,
approvals, authorizations or orders, if any, that have been obtained
prior to the Closing Date;
(6) Accredited covenants that its computer and other systems
used in servicing the Mortgage Loans operate in a manner such that
Accredited can service the Mortgage Loans in accordance with the
terms of this Pooling and Servicing Agreement;
(7) With respect to each Mortgage Loan, Accredited has fully
furnished, in accordance with the Fair Credit Reporting Act and its
implementing regulations, accurate and complete information (i.e.,
favorable and unfavorable) on its borrower credit files to Equifax,
Experian, and Trans Union Credit Information Company (three of the
credit repositories), on a monthly basis; and
(8) Accredited 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.
SCHEDULE IV
Representations and Warranties of Accredited
as to the Mortgage Loans
Accredited hereby makes the representations and warranties set
forth in this Schedule IV as to the Mortgage Loans only to the Depositor, Chase
and the Trustee, as of the Closing Date (or such other date as may be expressly
set forth below):
(1) Mortgage Loans as Described. The information set forth on
the Data Tape Information as it relates to the Mortgage Loans is
complete, true and correct as of the Cut-off Date;
(2) Payments Current. All payments required to be made up to
the Closing Date for the Mortgage Loan under the terms of the
Mortgage Note, other than payments not yet 30 days delinquent, have
been made and credited. No payment required under a Mortgage Loan is
30 days or more delinquent nor has any payment under a Mortgage Loan
been 30 days or more delinquent at any time since the origination of
the Mortgage Loan;
(3) No Outstanding Charges. Except for payment defaults of
less than 30 days, there are no defaults in complying with the terms
of the Mortgage, and all taxes, governmental assessments, insurance
premiums, water, sewer and municipal charges, leasehold payments or
ground rents which previously became due and owing have been paid,
or an escrow of funds has been established in an amount sufficient
to pay for every such item which remains unpaid and which has been
assessed but is not yet due and payable. The Responsible Party has
not advanced funds, or induced, solicited or knowingly received any
advance of funds by a party other than the Mortgagor, directly or
indirectly, for the payment of any amount required under the
Mortgage Loan, except for interest accruing from the date of the
Mortgage Note or date of disbursement of the Mortgage Loan proceeds,
whichever is earlier, to the date which precedes by one month the
Due Date of the first installment of principal and interest;
(4) Original Terms Unmodified. The terms of the Mortgage Note
and Mortgage have not been impaired, waived, altered or modified in
any respect from the date of origination, except by a written
instrument which has been recorded, if necessary to protect the
interests of the Purchaser, and which has been delivered to the
Trustee and the terms of which are reflected in the Data Tape
Information. No Mortgage Loan has been modified so as to restructure
the payment obligations or re-age the Mortgage Loan. The substance
of any such waiver, alteration or modification has been approved by
the title insurer, if any, to the extent required by the policy, and
its terms are reflected on the Data Tape Information. No Mortgage
Loan has been modified so as to restructure the payment obligations
or re-age the Mortgage Loan. No Mortgagor has been released, in
whole or in part, except in connection with an assumption agreement,
approved by the title insurer, to the extent required by the policy,
and which assumption agreement is part of the Mortgage Loan File
delivered to the Trustee and the terms of which are reflected in the
Data Tape Information;
(5) No Defenses. The Mortgage Loan is not subject to any right
of rescission, set-off, counterclaim or defense, including, without
limitation, the defense of usury, nor will the operation of any of
the terms of the Mortgage Note or the Mortgage, or the exercise of
any right thereunder, render either the Mortgage Note or the
Mortgage unenforceable, in whole or in part, or subject to any right
of rescission, set-off, counterclaim or defense, including without
limitation the defense of usury, and no such right of rescission,
set-off, counterclaim or defense has been asserted with respect
thereto, and no Mortgagor was a debtor in any state or federal
bankruptcy or insolvency proceeding at the time, or subsequent to,
the Mortgage Loan was funded;
(6) Hazard Insurance. Pursuant to the terms of the Mortgage,
all buildings or other improvements upon the Mortgaged Property are
insured by a generally acceptable insurer acceptable under the
Xxxxxx Xxx Guides against loss by fire, hazards of extended coverage
and such other hazards as are provided for in the Xxxxxx Mae Guides
or by Xxxxxxx Mac, in an amount which is at least equal to the
lesser of (i) the maximum insurable value of the improvements
securing such Mortgage Loan and (ii) the greater of (a) the
outstanding principal balance of the Mortgage Loan and (b) an amount
such that the proceeds thereof shall be sufficient to prevent the
Mortgagor or the loss payee from becoming a co-insurer. If required
by the National Flood Insurance Act of 1968, as amended, each
Mortgage Loan is covered by a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance
Administration as in effect which policy conforms to Xxxxxx Mae and
Xxxxxxx Mac, with a generally acceptable insurance carrier
acceptable under the Xxxxxx Mae Guides in an amount representing
coverage not less than the lesser of (i) the aggregate unpaid
principal balance of the Mortgage Loan, (ii) maximum amount of
insurance which is available under the National Flood Insurance Act
of 1968, as amended (regardless of whether the area in which such
Mortgaged Property is located is participating in such program), and
(iii) the full replacement value of the improvements which are part
of such Mortgaged Property. All individual insurance policies
contain a standard mortgagee clause naming the Responsible Party and
its successors and assigns as mortgagee, and all premiums thereon
have been paid and such policies may not be reduced, terminated or
cancelled without 30 days' prior written notice to the mortgagee.
The Mortgage obligates the Mortgagor thereunder to maintain the
hazard insurance policy at the Mortgagor's cost and expense, and on
the Mortgagor's failure to do so, authorizes the holder of the
Mortgage to obtain and maintain such insurance at such Mortgagor's
cost and expense, and to seek reimbursement therefor from the
Mortgagor. Where required by state law or regulation, the Mortgagor
has been given an opportunity to choose the carrier of the required
hazard insurance, provided the policy is not a "master" or "blanket"
hazard insurance policy covering a condominium, or any hazard
insurance policy covering the common facilities of a planned unit
development. The hazard insurance policy is the valid and binding
obligation of the insurer, is in full force and effect, and will be
in full force and effect and inure to the benefit of the Trustee on
the Closing Date. None of the Responsible Party, the Mortgagor or
any servicer have engaged in any act or omission which would impair
the coverage of any such policy, the benefits of the endorsement
provided for herein, or the validity and binding effect of such
policy, including, without limitation, no unlawful fee, commission,
kickback or other unlawful compensation or value of any kind has
been or will be received, retained or realized by any attorney, firm
or other person or entity, and no such unlawful items have been
received, retained or realized by the Responsible Party;
(7) Compliance with Applicable Laws. Any and all requirements
of any federal, state or local law, including, without limitation,
usury, truth-in-lending, real estate settlement procedures, consumer
credit protection, predatory and abusive lending, equal credit
opportunity and disclosure laws or unfair and deceptive practices
laws applicable to the Mortgage Loan, including, without limitation,
any provisions relating to Prepayment Premiums, have been complied
with, the consummation of the transactions contemplated hereby will
not involve the violation of any such laws or regulations, and the
Responsible Party shall maintain in its possession, available for
the Purchaser's or the Trustee's inspection, and shall deliver to
the Purchaser upon demand, evidence of compliance with all such
requirements;
(8) No Satisfaction of Mortgage. The Mortgage has not been
satisfied, cancelled, subordinated or rescinded, in whole or in
part, and the Mortgaged Property has not been released from the lien
of the Mortgage, in whole or in part, nor has any instrument been
executed that would effect any such release, cancellation,
subordination or rescission. The Responsible Party has not waived
the performance by the Mortgagor of any action, if the Mortgagor's
failure to perform such action would cause the Mortgage Loan to be
in default, nor has the Responsible Party waived any default
resulting from any action or inaction by the Mortgagor;
(9) Location and Type of Mortgaged Property. The Mortgaged
Property is a fee simple property located in the state identified in
the Data Tape Information except that with respect to real property
located in jurisdictions in which the use of leasehold estates for
residential properties is a widely-accepted practice, the Mortgaged
Property may be a leasehold estate and consists of a single parcel
of real property with a detached single family residence erected
thereon, or a two- to four-family dwelling, or an individual
residential condominium unit in a condominium project, or an
individual unit in a planned unit development or a manufactured home
and no residence or dwelling is a mobile home, provided, however,
that any condominium unit or planned unit development shall conform
with the Underwriting Guidelines. In the case of any Mortgaged
Properties that are manufactured homes (a "Manufactured Home
Mortgage Loans"), (i) such Manufactured Home Mortgage Loan conforms
with the applicable Xxxxxx Xxx or Xxxxxxx Mac requirements regarding
mortgage loans related to manufactured dwellings, (ii) the related
manufactured dwelling is permanently affixed to the land, (iii) the
related manufactured dwelling and the related land are subject to a
Mortgage properly filed in the appropriate public recording office
and naming the Responsible Party as mortgagee, (iv) the applicable
laws of the jurisdiction in which the related Mortgaged Property is
located will deem the manufactured dwelling located on such
Mortgaged Property to be a part of the real property on which such
dwelling is located, and (v) such Manufactured Home Mortgage Loan is
(x) a qualified mortgage under Section 860G(a)(3) of the Internal
Revenue Code of 1986, as amended and (y) secured by manufactured
housing treated as a single family residence under Section 25(e)(10)
of the Code. As of the date of origination, no portion of the
Mortgaged Property was used for commercial purposes, and since the
date of origination through the Original Sale Date and, to the
Responsible Party's knowledge, subsequent thereto, no portion of the
Mortgaged Property has been used for commercial purposes; provided,
that a Mortgaged Property which contains a home office shall not be
considered as being used for commercial purposes as long as the
Mortgaged Property has not been altered for commercial purposes and
is not storing any chemicals or raw materials other than those
commonly used for homeowner repair, maintenance and/or household
purposes; notwithstanding the forgoing, the Mortgaged Property is
not characterized as mixed-use under which the Mortgaged Property
falls into two or more land use classifications.
(10) Valid First. The Mortgage is a valid, subsisting,
enforceable (subject to bankruptcy, insolvency, and similar laws
affecting the rights of creditors generally and to general
principles of equity) and perfected, first lien on the Mortgaged
Property, including all buildings and improvements on the Mortgaged
Property and all installations and mechanical, electrical, plumbing,
heating and air conditioning systems located in or annexed to such
buildings, and all additions, alterations and replacements made at
any time with respect to the foregoing. The lien of the Mortgage is
subject only to:
(i) the lien of current real property taxes and
assessments not yet due and payable;
(ii) covenants, conditions and restrictions, rights of
way, easements and other matters of the public record as of the date
of recording acceptable to prudent mortgage lending institutions
generally and specifically referred to in the lender's title
insurance policy delivered to the originator of the Mortgage Loan
and (a) specifically referred to or otherwise considered in the
appraisal made for the originator of the Mortgage Loan or (b) which
do not adversely affect the Appraised Value of the Mortgaged
Property set forth in such appraisal; and
(iii) other matters to which like properties are
commonly subject which do not materially interfere with the benefits
of the security intended to be provided by the Mortgage or the use,
enjoyment, value or marketability of the related Mortgaged Property.
Any security agreement, chattel mortgage or equivalent
document related to and delivered in connection with the Mortgage
Loan establishes and creates a valid, subsisting, enforceable
(subject to bankruptcy, insolvency and similar laws affecting the
rights of creditors and general principles of equity) and perfected
first lien and first priority security interest with respect to each
first lien mortgage loan on the property described therein and the
Responsible Party has full right to sell and assign the same to
Purchaser.
(11) Validity of Mortgage Documents. The Mortgage Note and the
Mortgage and any other agreement executed and delivered by a
Mortgagor in connection with a Mortgage Loan are genuine, and each
is the legal, valid and binding obligation of the maker thereof
enforceable in accordance with its terms (including, without
limitation, any provisions relating to Prepayment Premiums), except
as such enforcement may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium or other similar laws
relating to or affecting the rights of creditors generally, and by
general equity principles (regardless of whether such enforcement is
considered a proceeding in equity or a law). All parties to the
Mortgage Note, the Mortgage and any other such related agreement had
legal capacity to enter into the Mortgage Loan and to execute and
deliver the Mortgage Note, the Mortgage and any such agreement, and
the Mortgage Note, the Mortgage and any other such related agreement
have been duly and properly executed by other such related parties.
The documents, instruments and agreements submitted for loan
underwriting were not falsified and contain no untrue statement of
material fact or omit to state a material fact required to be stated
therein or necessary to make the information and statements therein
not misleading. No fraud, error, omission, misrepresentation,
negligence, or similar occurrence with respect to a Mortgage Loan
has taken place on the part of any Person, including without
limitation, the Mortgagor, any appraiser, or any other party
involved in the origination or servicing of the Mortgage Loan. The
Responsible Party has reviewed all of the documents constituting the
Servicing File and has made such inquiries as it deems necessary to
make and confirm the accuracy of the representations set forth
herein;
(12) Full Disbursement of Proceeds. Except to the extent the
Mortgage Loan is subject to completion escrows which have been
disclosed to and acknowledged by the Purchaser and which meet the
requirements of the Underwriting Guidelines, and as to which a
completed Xxxxxx Xxx form 442 has been delivered to the Purchaser as
of the Closing Date, the Mortgage Loan has been closed and the
proceeds of the Mortgage Loan have been fully disbursed and there is
no requirement for future advances thereunder, and any and all
requirements as to completion of any on-site or off-site improvement
and as to disbursements of any escrow funds therefor have been
complied with. All costs, fees and expenses incurred in making or
closing the Mortgage Loan and the recording of the Mortgage were
paid, and the Mortgagor is not entitled to any refund of any amounts
paid or due under the Mortgage Note or Mortgage;
(13) Ownership. Immediately prior to the Original Sale Date,
Accredited was the sole owner and holder of the Mortgage Loan, the
Mortgage Loan had neither been assigned nor pledged, and the
Responsible Party had good and marketable title thereto, and had
full right to transfer and sell the Mortgage Loan and the related
Servicing Rights to the Purchaser free and clear of any encumbrance,
equity, lien, pledge, charge, claim or security interest and had
full right and authority subject to no interest or participation of,
or agreement with, any other party, to sell and assign each Mortgage
Loan and the related Servicing Rights to the Purchaser pursuant to
the terms of the Purchase Agreement.
(14) Doing Business. All parties which have had any interest
in the Mortgage Loan, whether as mortgagee, assignee, pledgee or
otherwise, are (or, during the period in which they held and
disposed of such interest, were) (1) in compliance with any and all
applicable licensing requirements of the laws of the state wherein
the Mortgaged Property is located, and (2) either (i) organized
under the laws of such state, or (ii) qualified to do business, or
exempt from such qualification, in such state, or (iii) a federal
savings and loan association, a savings bank or a national bank
having a principal office in such state, or (3) not doing business
in such state;
(15) LTV. No Mortgage Loan has an LTV greater than 100%;
(16) Title Insurance. The Mortgage Loan is covered by an ALTA
lender's title insurance policy, or with respect to any Mortgage
Loan for which the related Mortgaged Property is located in
California a CLTA lender's title insurance policy, or other
generally acceptable form of policy or insurance acceptable to
Xxxxxx Xxx or Xxxxxxx Mac and each such title insurance policy is
issued by a title insurer acceptable to Xxxxxx Mae or Xxxxxxx Mac
and qualified to do business in the jurisdiction where the Mortgaged
Property is located, insuring the Responsible Party, its successors
and assigns, as to the first priority lien of the Mortgage in the
original principal amount of the Mortgage Loan, subject only to the
exceptions contained in clauses (i), (ii) and (iii) of
representation 10 of this Schedule IV, and in the case of Adjustable
Rate Mortgage Loans, against any loss by reason of the invalidity or
unenforceability of the lien resulting from the provisions of the
Mortgage providing for adjustment to the Mortgage Interest Rate and
Scheduled Payment. Where required by state law or regulation, the
Mortgagor has been given the opportunity to choose the carrier of
the required mortgage title insurance. Additionally, such lender's
title insurance policy affirmatively insures ingress and egress, and
against encroachments by or upon the Mortgaged Property or any
interest therein. The title policy does not contain any special
exceptions (other than the standard exclusions) for zoning and uses
and has been marked to delete the standard survey exception or to
replace the standard survey exception with a specific survey
reading. The Responsible Party, its successors and assigns, are the
sole insureds of such lender's title insurance policy, and such
lender's title insurance policy is valid and remains in full force
and effect and will be in force and effect on the Closing Date. No
claims have been made under such lender's title insurance policy,
and no prior holder of the related Mortgage, including the
Responsible Party, has done, by act or omission, anything which
would impair the coverage of such lender's title insurance policy,
including, without limitation, no unlawful fee, commission, kickback
or other unlawful compensation or value of any kind has been or will
be received, retained or realized by any attorney, firm or other
person or entity, and no such unlawful items have been received,
retained or realized by the Responsible Party;
(17) No Defaults. Other than payments due but not yet 30 days
or more delinquent, there is no default, breach, violation or event
which would permit acceleration existing under the Mortgage or the
Mortgage Note and no event which, with the passage of time or with
notice and the expiration of any grace or cure period, would
constitute a default, breach, violation or event which would permit
acceleration, and neither the Responsible Party nor any of its
Affiliates nor any of their respective predecessors have waived any
default, breach, violation or event which would permit acceleration;
(18) No Mechanics' Liens. Except as insured against by the
related title insurance, there are no mechanics' or similar liens or
claims which have been filed for work, labor or material (and no
rights are outstanding that under law could give rise to such liens)
affecting the related Mortgaged Property which are or may be liens
prior to, or equal or coordinate with, the lien of the related
Mortgage;
(19) Location of Improvements; No Encroachments. All
improvements which were considered in determining the Appraised
Value of the Mortgaged Property lay wholly within the boundaries and
building restriction lines of the Mortgaged Property. As of the
Original Sale Date and, to the Responsible Party's knowledge,
subsequent thereto, no improvements on adjoining properties encroach
upon the Mortgaged Property. There are no improvements located on or
part of the Mortgaged Property that are in violation of any
applicable zoning law or regulation;
(20) Origination; Payment Terms. The Mortgage Loan was
originated by a mortgagee approved by the Secretary of Housing and
Urban Development pursuant to Sections 203 and 211 of the National
Housing Act, a savings and loan association, a savings bank, a
commercial bank, credit union, insurance company or other similar
institution which is supervised and examined by a federal or state
authority. No Mortgage Loan contains terms or provisions which would
result in negative amortization. Principal payments on the Mortgage
Loan commenced no more than sixty days after funds were disbursed in
connection with the Mortgage Loan. The Mortgage Interest Rate,
Lifetime Rate Cap and Periodic Mortgage Interest Rate Cap are as set
forth on the Data Tape Information. Each Mortgage Note is payable in
equal monthly installments of principal and interest, except for
those Mortgage Loans identified on the Data Tape Information subject
to a balloon payment, which installments of interest, with respect
to Adjustable Rate Mortgage Loans, are subject to change due to the
adjustments to the Mortgage Interest Rate on each Adjustment Date,
with interest calculated and payable in arrears, sufficient to
amortize the Mortgage Loan fully by the stated maturity date, over
an original term of not more than thirty years from commencement of
amortization. Unless otherwise specified on the Data Tape
Information, each Mortgage Loan is payable on the first day of each
month. None of the Mortgage Loans allows for conversion of the
interest rate thereon from an adjustable rate to a fixed rate;
(21) Customary Provisions. The Mortgage contains customary and
enforceable (subject to bankruptcy, insolvency, and similar laws
affecting the rights of creditors generally and to general
principles of equity) provisions such as to render the rights and
remedies of the holder thereof adequate for the realization against
the Mortgaged Property of the benefits of the security provided
thereby, including, (i) in the case of a Mortgage designated as a
deed of trust, by trustee's sale, and (ii) otherwise by judicial
foreclosure. Upon default by a Mortgagor on a Mortgage Loan and
foreclosure on, or trustee's sale of, the Mortgaged Property
pursuant to the proper procedures, the holder of the Mortgage Loan
will be able to deliver good and merchantable title to the Mortgaged
Property. There is no homestead or other exemption available to a
Mortgagor which would interfere with the right to sell the Mortgaged
Property at a trustee's sale or the right to foreclose the Mortgage,
subject to applicable federal and state laws and judicial precedent
with respect to bankruptcy and right of redemption or similar law;
(22) Occupancy of the Mortgaged Property. As of the Original
Sale Date and, to the Responsible Party's knowledge, subsequent
thereto, the Mortgaged Property is not unlawfully occupied under
applicable law. All inspections, licenses and certificates required
to be made or issued with respect to all occupied portions of the
Mortgaged Property and, with respect to the use and occupancy of the
same, including, but not limited to, certificates of occupancy, have
been made or obtained from the appropriate authorities;
(23) No Additional Collateral. The Mortgage Note is not and
has not been secured by any collateral except the lien of the
corresponding Mortgage and the security interest of any applicable
security agreement or chattel mortgage referred to in clause (10)
above;
(24) Deeds of Trust. In the event the Mortgage constitutes a
deed of trust, a trustee, authorized and duly qualified under
applicable law to serve as such, has been properly designated and
currently so serves and is named in the Mortgage, and no fees or
expenses are or will become payable by the Purchaser to the trustee
under the deed of trust, except in connection with a trustee's sale
after default by the Mortgagor;
(25) Delivery of Mortgage Documents. The Mortgage Note, the
Mortgage, the Assignment of Mortgage and any other documents
required to be delivered under this Agreement for each Mortgage Loan
have been delivered to the Purchaser or its designee;
(26) Transfer of Mortgage Loans. The Assignment of Mortgage
(except with respect to any Mortgage that has been recorded in the
name of MERS or its designee), with respect to each Mortgage Loan is
in recordable form and is acceptable for recording under the laws of
the jurisdiction in which the Mortgaged Property is located. The
transfer, assignment and conveyance of the Mortgage Notes and the
Mortgages by the Responsible Party is not subject to the bulk
transfer or similar statutory provisions in effect in any applicable
jurisdiction;
(27) Due-On-Sale. With respect to each Fixed Rate Mortgage
Loan, the Mortgage contains an enforceable provision for the
acceleration of the payment of the unpaid principal balance of the
Mortgage Loan in the event that the Mortgaged Property is sold or
transferred without the prior written consent of the mortgagee
thereunder, and, subject to applicable law, such provision is
enforceable;
(28) No Buydown Provisions, No Graduated Payments or
Contingent Interests. The Mortgage Loan does not contain provisions
pursuant to which Scheduled Payments are paid or partially paid with
funds deposited in any separate account established by the
Responsible Party, the Mortgagor, or anyone on behalf of the
Mortgagor, or paid by any source other than the Mortgagor nor does
it contain any other similar provisions which may constitute a
"buydown" provision. The Mortgage Loan is not a graduated payment
mortgage loan and the Mortgage Loan does not have a shared
appreciation or other contingent interest feature;
(29) Assumability. None of the Mortgage Loans are, by their
terms, assumable;
(30) Consolidation of Future Advances. Any future advances
made to the Mortgagor prior to the Cut-off Date have been
consolidated with the outstanding principal amount secured by the
Mortgage, and the secured principal amount, as consolidated, bears a
single interest rate and single repayment term. The lien of the
Mortgage securing the consolidated principal amount is expressly
insured as having first lien priority by a title insurance policy,
an endorsement to the policy insuring the mortgagee's consolidated
interest or by other title evidence acceptable to Xxxxxx Xxx and
Xxxxxxx Mac. The consolidated principal amount does not exceed the
original principal amount of the Mortgage Loan;
(31) Mortgaged Property Undamaged; No Condemnation
Proceedings. There is no proceeding pending or threatened for the
total or partial condemnation of the Mortgaged Property. As of the
Original Sale Date and, to the Responsible Party's knowledge,
subsequent thereto, the Mortgaged Property is undamaged by waste,
fire, earthquake or earth movement, windstorm, flood, tornado or
other casualty so as to affect adversely the value of the Mortgaged
Property as security for the Mortgage Loan or the use for which the
premises were intended and each Mortgaged Property is in good
repair;
(32) Collection Practices; Escrow Payments; Interest Rate
Adjustments. The origination, servicing and collection practices
used by the Responsible Party or the current servicer with respect
to the Mortgage Loan have been in all respects in compliance with
Accepted Servicing Practices, applicable laws and regulations, and
have been in all respects legal and proper and prudent in the
mortgage origination and servicing business. With respect to escrow
deposits and Escrow Payments, all such payments are in the
possession of, or under the control of the current servicer and
there exist no deficiencies in connection therewith for which
customary arrangements for repayment thereof have not been made. All
Escrow Payments have been collected in full compliance with state
and federal law and the provisions of the related Mortgage Note and
Mortgage. To the extent there exists an escrow of funds, such escrow
of funds is not prohibited by applicable law and has been
established in an amount sufficient to pay for every item that
remains unpaid and has been assessed but is not yet due and payable.
No escrow deposits or Escrow Payments or other charges or payments
due to the Responsible Party have been capitalized under the
Mortgage or the Mortgage Note. All Mortgage Interest Rate
adjustments have been made in strict compliance with state and
federal law and the terms of the related Mortgage and Mortgage Note
on the related Adjustment Date. The Responsible Party executed and
delivered any and all notices required under applicable law and the
terms of the related Mortgage Note and Mortgage regarding the
Mortgage Interest Rate and the Scheduled Payment adjustments. Any
interest required to be paid pursuant to state, federal and local
law has been properly paid and credited;
(33) Conversion to Fixed Interest Rate. With respect to
Adjustable Rate Mortgage Loans, the Mortgage Loan is not a
convertible Mortgage Loan;
(34) No Violation of Environmental Laws. As of the Original
Sale Date and, to the Responsible Party's knowledge, subsequent
thereto, the Mortgaged Property is free from any and all toxic or
hazardous substances and there exists no violation of any local,
state or federal environmental law, rule or regulation. There is no
pending action or proceeding directly involving the Mortgaged
Property in which compliance with any environmental law, rule or
regulation is an issue. As of the Original Sale Date and, to the
Responsible Party's knowledge, subsequent thereto, there is no
violation of any environmental law, rule or regulation with respect
to the Mortgaged Property; and nothing further remains to be done to
satisfy in full all requirements of each such law, rule or
regulation constituting a prerequisite to use and enjoyment of said
property;
(35) Soldiers' and Sailors' Civil Relief Act. The Mortgagor
has not notified Accredited of any relief requested or allowed to
the Mortgagor under the Soldiers' and Sailors' Civil Relief Act of
1940 or any similar state or local law;
(36) Appraisal. The Mortgage File contains an appraisal of the
related Mortgaged Property signed prior to the approval of the
Mortgage Loan application by a qualified appraiser who had no
interest, direct or indirect in the Mortgaged Property or in any
loan made on the security thereof, and whose compensation was not
affected by the approval or disapproval of the Mortgage Loan, and
the appraisal and appraiser both satisfied the requirements of
Xxxxxx Xxx or Xxxxxxx Mac, and Title XI of the Financial
Institutions Reform, Recovery, and Enforcement Act of 1989 and the
regulations promulgated thereunder, all as in effect on the date the
Mortgage Loan was originated;
(37) Disclosure Materials. The Mortgagor has received all
disclosure materials required by, and the Responsible Party has
complied with all applicable law with respect to the making of the
Mortgage Loans;
(38) Construction or Rehabilitation of Mortgaged Property. No
Mortgage Loan was made to finance the construction or rehabilitation
of a Mortgaged Property or facilitating the trade-in or exchange of
a Mortgaged Property;
(39) Value of Mortgaged Property. The Responsible Party has no
knowledge of any circumstances existing that could be expected to
adversely affect the value or the marketability of any Mortgaged
Property or Mortgage Loan or to cause the Mortgage Loans to prepay
during any period materially faster or slower than similar mortgage
loans held by the Responsible Party generally secured by properties
in the same geographic area as the related Mortgaged Property;
(40) No Defense to Insurance Coverage. The Responsible Party
has caused to be performed any and all acts required to preserve the
rights and remedies of the Purchaser in any insurance policies
applicable to the Mortgage Loans including, without limitation, any
necessary notifications of insurers, assignments of policies or
interests therein, and establishments of coinsured, joint loss payee
and mortgagee rights in favor of the Purchaser. No action has been
taken or failed to be taken, no event has occurred and no state of
facts exists or has existed on or prior to the Original Sale Date
or, to the Responsible Party's knowledge, subsequent thereto, which
has resulted or will result in an exclusion from, denial of, or
defense to coverage under any applicable special hazard insurance
policy or bankruptcy bond (including, without limitation, any
exclusions, denials or defenses which would limit or reduce the
availability of the timely payment of the full amount of the loss
otherwise due thereunder to the insured) whether arising out of
actions, representations, errors, omissions, negligence, or fraud of
the Responsible Party, the related Mortgagor or any party involved
in the application for such coverage, including the appraisal, plans
and specifications and other exhibits or documents submitted
therewith to the insurer under such insurance policy, or for any
other reason under such coverage, but not including the failure of
such insurer to pay by reason of such insurer's breach of such
insurance policy or such insurer's financial inability to pay;
(41) Escrow Analysis. With respect to each Mortgage for which
taxes and insurance are being escrowed, the current servicer has
within the last twelve months (unless such Mortgage was originated
within such twelve month period) analyzed the required Escrow
Payments for each Mortgage and adjusted the amount of such payments
so that, assuming all required payments are timely made, any
deficiency will be eliminated on or before the first anniversary of
such analysis, or any overage will be refunded to the Mortgagor, in
accordance with RESPA and any other applicable law;
(42) Prior Servicing. Each Mortgage Loan has been serviced in
all material respects in strict compliance with Accepted Servicing
Practices and the Servicer has reported the Mortgagor credit files
monthly to each of the three credit repositories in a timely manner
on a monthly basis;
(43) Credit Information. As to each consumer report (as
defined in the Fair Credit Reporting Act, Public Law 91-508) or
other credit information furnished by the Responsible Party to the
Purchaser, that the Responsible Party has full right and authority
and is not precluded by law or contract from furnishing such
information to the Purchaser and the Purchaser is not precluded from
furnishing the same to any subsequent or prospective purchaser of
such Mortgage Loan;
(44) Leaseholds. If a Mortgage Loan is secured by a long-term
residential lease, (1) the lessor under the lease holds a fee simple
interest in the land; (2) the terms of such lease expressly permit
the mortgaging of the leasehold estate and the acquisition by the
holder of the Mortgage of the rights of the lessee upon foreclosure
or assignment in lieu of foreclosure or provide the holder of the
Mortgage with substantially similar protections; (3) the terms of
such lease do not (a) allow the termination thereof upon the
lessee's default without the holder of the Mortgage being entitled
to receive written notice of, and opportunity to cure, such default,
(b) allow the termination of the lease in the event of damage or
destruction as long as the Mortgage is in existence, (c) prohibit
the holder of the Mortgage from being insured (or receiving proceeds
of insurance) under the hazard insurance policy or policies relating
to the Mortgaged Property or (d) permit any increase in rent other
than pre-established increases set forth in the lease; (4) the
original term of such lease is not less than 15 years; (5) the term
of such lease does not terminate earlier than five years after the
maturity date of the Mortgage Note; and (6) the Mortgaged Property
is located in a jurisdiction in which the use of leasehold estates
in transferring ownership in residential properties is a widely
accepted practice;
(45) Prepayment Premium. Each Mortgage Loan is subject to a
Prepayment Premium unless otherwise set forth on the Data Tape
Information hereof, enforceable under the terms of the related
Mortgage Note and originated in compliance with all applicable
federal, state, and local laws. No Mortgage Loan has a Prepayment
Premium period in excess of five years. With respect to each
Mortgage Loan that contains a Prepayment Premium: (i) a mortgage
loan without a prepayment penalty was available to the Mortgagor at
an interest rate and/or fee structure higher than that of the
Mortgage Loan, (ii) prior to the Mortgage Loan's funding, the
Mortgagor had the option of obtaining a mortgage loan that did not
require payment of such a premium, and (iii) the Prepayment Premium
was disclosed to the Mortgagor in the Mortgage Loan documents
pursuant to applicable state and federal law;
(46) Predatory Lending Regulations. None of the Mortgage Loans
are (i) covered by the Home Ownership and Equity Protection Act of
1994 or (ii) in violation of, or classified as "high cost",
"threshold," "covered" or "predatory" loans under, any other
applicable state, federal or local law;
(47) Single-premium Credit Life Insurance Policy. In
connection with the origination of any Mortgage Loan, no proceeds
from any Mortgage Loan were used to finance a single-premium credit
life insurance policy. No Mortgagor was required to purchase any
credit life, disability, accident or health insurance product as a
condition of obtaining the extension of credit. No Mortgagor
obtained a prepaid single-premium credit life, disability, accident
or health insurance policy in connection with the origination of the
Mortgage Loan;
(48) Tax Service Contract; Flood Certification Contract. Each
Mortgage Loan is covered by a paid in full, life of loan, tax
service contract and a paid in full, life of loan, flood
certification contract and each of these contracts is assignable to
the Purchaser;
(49) Qualified Mortgage. The Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code;
(50) Regarding the Mortgagor. The Mortgagor is one or more
natural persons and/or an Illinois land trust or a "living trust"
and such "living trust" is in compliance with the Xxxxxx Mae Guides
for such trusts;
(51) Recordation. Each original Mortgage was recorded and
except for those Mortgage Loans subject to the MERS identification
system, all subsequent assignments of the original Mortgage (other
than the assignment to the Purchaser) have been recorded in the
appropriate jurisdictions wherein such recordation is necessary to
perfect the lien thereof as against creditors of the Responsible
Party, or is in the process of being recorded;
(52) FICO Scores. Except as permitted by the Underwriting
Guidelines, each Mortgagor has a non-zero FICO score;
(53) Compliance with Anti-Money Laundering Laws. The
Responsible Party has complied with all applicable anti-money
laundering laws and regulations, including without limitation the
USA Patriot Act of 2001;
(54) Conformance with Underwriting Guidelines. The Mortgage
Loan was underwritten in accordance with the Underwriting
Guidelines. The Mortgage Note and Mortgage are on forms generally
acceptable in the secondary market and the Responsible Party has not
made any representations to a Mortgagor that are inconsistent with
the mortgage instruments used;
(55) Acceptable Investment. To the Responsible Party's
knowledge, there are no circumstances or conditions with respect to
the Mortgage, the Mortgaged Property, the Mortgagor, the Mortgage
File or the Mortgagor's credit standing (other than the status of
the Mortgage Loan as a subprime mortgage loan) that can reasonably
be expected to cause private institutional investors to regard the
Mortgage Loan as an unacceptable investment, cause the Mortgage Loan
to become delinquent, or adversely affect the value or marketability
of the Mortgage Loan, or cause the Mortgage Loans to prepay during
any period materially faster or slower than the mortgage loans
originated by the Responsible Party generally;
(56) Condominiums/Planned Unit Developments. If the Mortgaged
Property is a condominium unit or a planned unit development (other
than a de minimis planned unit development) such condominium or
planned unit development project is acceptable to the Responsible
Party and underwritten in accordance with the Underwriting
Guidelines;
(57) Georgia Mortgage Loans. There is no Mortgage Loan that
was funded prior to March 7, 2003 and is secured by property located
in the State of Georgia. There is no Mortgage Loan that was funded
after March 7, 2003, which is a "high-cost home loan" as defined
under the Georgia Fair Lending Act;
(58) Mortgaged Premises Located in New York State. No Mortgage
Loan (a) is secured by property located in the state of New York;
(b) had an original principal balance of $300,000 or less; and (c)
has an application date on or after April 1, 2003, the terms of
which Mortgage Loan equal or exceed either the APR or the points and
fees threshold for "high-cost home loans," as defined in Section 6-L
of the New York State Banking Law;
(59) Mortgaged Premises Located in New Jersey. No Mortgage
Loan is secured by property located in the state of New Jersey
unless such Mortgage Loan is ratable by all of the Ratings Agencies;
(60) Litigation. No Mortgage Loan is subject to any
outstanding litigation for fraud, origination, predatory lending,
servicing or closing practices;
(61) Origination Practices. No borrower was encouraged or
required to select a Mortgage Loan product offered by the Mortgage
Loan's originator which is a higher cost product designed for less
creditworthy borrowers, unless at the time of the Mortgage Loan's
origination, such borrower did not qualify taking into account
credit history and debt-to-income ratios for a lower-cost credit
product then offered by the Mortgage Loan's originator or any
affiliate of the Mortgage Loan's originator. If, at the time of loan
application, the borrower may have qualified for a for a lower-cost
credit product then offered by any mortgage lending affiliate of the
Mortgage Loan's originator, the Mortgage Loan's originator referred
the borrower's application to such affiliate for underwriting
consideration; and
(62) Underwriting Methodology. The methodology used in
underwriting the extension of credit for each Mortgage Loan employs,
in part, objective mathematical principles which relate the
borrower's income, assets and liabilities to the proposed payment
and such underwriting methodology does not rely on the extent of the
borrower's equity in the collateral as the principal determining
factor in approving such credit extension. Such underwriting
methodology confirmed that at the time of origination
(application/approval) the borrower had a reasonable ability to make
timely payments on the Mortgage Loan.
EXHIBIT A-I
FORM OF CLASS A, CLASS M AND CLASS B CERTIFICATES
Unless this Certificate is presented by an authorized representative of the
Depository Trust Company, a New York corporation ("DTC"), to Issuer or its agent
for registration of transfer, exchange, or payment, and any certificate issued
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN
INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT,"
AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), AND CERTAIN OTHER
ASSETS.
Certificate No. :
Cut-off Date : October 1, 2003
First Distribution Date : November 25, 2003
Initial Certificate Balance
of this Certificate
("Denomination") :
Initial Certificate
Balances of all
Certificates of this Class : CLASS PRINCIPAL AMOUNT
CLASS A-1 $179,587,000
CLASS A-2A $57,465,000
CLASS A-2B $19,666,000
CLASS M-1 $17,678,000
CLASS M-2 $13,836,000
CLASS B-1 $ 8,454,000
CLASS B-2 $ 3,843,000
CUSIP : CLASS CUSIP NO.
CLASS A-1 [36228F XG6]
CLASS A-2A [36228F XH4]
CLASS A-2B [36228F XP6]
CLASS M-1 [36228F XK7]
CLASS M-2 [36228F XL5]
CLASS B-1 [36228F XM3]
CLASS B-2 [36228F XN1]
ISIN : CLASS A-1 [US36228FXG61]
CLASS A-2A [US36228FXH45]
CLASS A-2B [US36228FXP60]
CLASS M-1 [US36228FXK73]
CLASS M-2 [US36228FXL56]
CLASS B-1 [US36228FXM30]
CLASS B-2 [US36228FXN13]
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2003-AHL
Mortgage Pass-Through Certificates, Series 2003-AHL
[Class A-] [Class M-] [Class B-]
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced
Class.
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, Accredited, Chase or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions pursuant to a Pooling and Servicing Agreement, dated as of October
1, 2003 (the "Agreement"), among GS Mortgage Securities Corp., as depositor (the
"Depositor"), Chase Manhattan Mortgage Corporation, as servicer ( "Chase"),
Accredited Home Lenders, Inc., as a servicer and responsible party
("Accredited"), and Xxxxx Fargo Bank Minnesota, National Association, as trustee
(the "Trustee"). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated:
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
not in its individual capacity, but
solely as
Trustee
By:____________________________________
Countersigned:
By:_________________________________________________
Authorized Signatory of
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Trustee
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2003-AHL
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2003-AHL Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date applicable to each
Distribution Date is the Business Day immediately preceding such Distribution
Date; provided, however, that for any Definitive Certificates, the Record Date
shall be the last Business Day of the month next 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 Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the offices designated by the Trustee for such
purposes, or such other location specified in the notice to Certificateholders
of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, Chase, Accredited and the Trustee with the consent of the
Holders of Certificates affected by such amendment evidencing the requisite
Percentage Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the offices designated by the Trustee for such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Trustee and the Certificate Registrar duly executed by the holder hereof
or such holder's attorney duly authorized in writing, and thereupon one or more
new Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor, Chase, Accredited and the Trustee and any agent of
the Depositor or the Trustee may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and neither the Depositor,
the Trustee, nor any such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 9.01 of the Agreement
will have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto____________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________.
Dated:
______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_______________________________________________,
_____________________________________________________________________________,
for the account of___________________________________________________________,
account number_______________, or, if mailed by check, to____________________.
Applicable statements should be mailed to____________________________________,
_____________________________________________________________________________.
This information is provided by__________________________________,
the assignee named above, or_________________________________________________,
as its agent.
EXHIBIT A-II
FORM OF CLASS A-IO CERTIFICATE
Unless this Certificate is presented by an authorized representative of the
Depository Trust Company, a New York corporation ("DTC"), to Issuer or its agent
for registration of transfer, exchange, or payment, and any certificate issued
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN
INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT,"
AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), AND CERTAIN OTHER
ASSETS.
Certificate No. :
Cut-off Date : October 1, 2003
First Distribution Date : November 25, 2003
Initial Notional Amount of
this Certificate
("Denomination") : $90,000,000
Original Class A-IO
Notional Amount : $90,000,000
CUSIP :
[36228F XJ0]
ISIN : [US36228FXJ01]
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2003-AHL
Mortgage Pass-Through Certificates, Series 2003-AHL
Class A-IO
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced
Class.
Payments in reduction of the Class A-IO Notional Amount in respect
of this Certificate are distributable monthly as set forth herein. Accordingly,
the Class A-IO Notional Amount represented by this Certificate may be less than
the Denomination as set forth herein. This Certificate does not evidence an
obligation of, or an interest in, and is not guaranteed by the Depositor,
Accredited, Chase 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
Initial Notional Amount of this Certificate by the Original Class A-IO Notional
Amount) in certain monthly distributions pursuant to a Pooling and Servicing
Agreement, dated as of October 1, 2003 (the "Agreement"), among GS Mortgage
Securities Corp., as depositor (the "Depositor"), Chase Manhattan Mortgage
Corporation, as servicer ( "Chase"), Accredited Home Lenders, Inc., as a
servicer and responsible party ("Accredited"), and Xxxxx Fargo Bank Minnesota,
National Association, as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated:
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
not in its individual capacity, but
solely as
Trustee
By:____________________________________
Countersigned:
By:_________________________________________________
Authorized Signatory of
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Trustee
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2003-AHL
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2003-AHL Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date applicable to each
Distribution Date is the Business Day immediately preceding such Distribution
Date; provided, however, that for any Definitive Certificates, the Record Date
shall be the last Business Day of the month next 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 Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the offices designated by the Trustee for such
purposes, or such other location specified in the notice to Certificateholders
of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, Chase, Accredited and the Trustee with the consent of the
Holders of Certificates affected by such amendment evidencing the requisite
Percentage Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the offices designated by the Trustee for such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Trustee and the Certificate Registrar duly executed by the holder hereof
or such holder's attorney duly authorized in writing, and thereupon one or more
new Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor, Chase, Accredited and the Trustee and any agent of
the Depositor or the Trustee may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and neither the Depositor,
the Trustee, nor any such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 9.01 of the Agreement
will have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto____________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________.
Dated:
______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_______________________________________________,
_____________________________________________________________________________,
for the account of___________________________________________________________,
account number_______________, or, if mailed by check, to____________________.
Applicable statements should be mailed to____________________________________,
_____________________________________________________________________________.
This information is provided by__________________________________,
the assignee named above, or_________________________________________________,
as its agent.
EXHIBIT B
FORM OF CLASS P CERTIFICATE
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR LETTER IN THE FORM OF
EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (i) THE TRUSTEE
RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED
TO HEREIN OR (ii) THE TRUSTEE RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE
EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE A REPRESENTATION LETTER TO THE EFFECT THAT
SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO APPLICABLE FEDERAL,
STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE, OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN
ASSETS OF SUCH A PLAN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY
PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN SUBJECT TO TITLE I OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW
WITHOUT THE REPRESENTATION LETTER SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE
SHALL BE VOID AND OF NO EFFECT.
Certificate No. : 1
Cut-off Date : October 1, 2003
First Distribution Date : November 25, 2003
Percentage Interest of
this Certificate
("Denomination") : 100%
CUSIP : 00000XXX0
ISIN : US36228FYP51
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2003-AHL
Mortgage Pass-Through Certificates, Series 2003-AHL
Class P
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced
Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Certificate does not evidence an obligation
of, or an interest in, and is not guaranteed by the Depositor, Accredited, Chase
or the Trustee referred to below or any of their respective affiliates. Neither
this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that [_________________________] is the registered
owner of the Percentage Interest evidenced by this Certificate (obtained by
dividing the denomination of this Certificate by the aggregate of the
denominations of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions pursuant to a Pooling and Servicing
Agreement dated as of October 1, 2003 (the "Agreement") among GS Mortgage
Securities Corp., as depositor (the "Depositor"), Chase Manhattan Mortgage
Corporation, as servicer ("Chase"), Accredited Home Lenders, Inc., as a servicer
and responsible party ("Accredited"), and Xxxxx Fargo Bank Minnesota, National
Association, as trustee (the "Trustee"). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
This Certificate does not have a Pass-Through Rate and will be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
offices designated by the Trustee for such purpose, or the office or agency
maintained by the Trustee.
No transfer of a Certificate of this Class shall be made unless such
disposition is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "1933 Act"), and any applicable state securities laws
or is made in accordance with the 1933 Act and such laws. In the event of any
such transfer, the Trustee shall require the transferor to execute a transferor
certificate (in substantially the form attached to the Pooling and Servicing
Agreement) and deliver either (i) a Rule 144A Letter, in either case
substantially in the form attached to the Agreement, or (ii) a written Opinion
of Counsel to the Trustee that such transfer may be made pursuant to an
exemption, describing the applicable exemption and the basis therefor, from the
1933 Act or is being made pursuant to the 1933 Act, which Opinion of Counsel
shall be an expense of the transferor.
No transfer of a Certificate of this Class shall be made unless the
Trustee shall have received a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA, Section 4975 of the Code or any materially
similar provisions of applicable Federal, state or local law ("Similar Law"), or
a person acting on behalf of or investing plan assets of any such plan, which
representation letter shall not be an expense of the Trustee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated:
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
not in its individual capacity, but
solely as
Trustee
By:____________________________________
Countersigned:
By _________________________________________________
Authorized Signatory of
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Trustee
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2003-AHL
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2003-AHL Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date applicable to each
Distribution Date is the last Business Day of the month next 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 Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the offices designated by the Trustee for such
purposes or such other location specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, Chase, Accredited and the Trustee with the consent of the
Holders of Certificates affected by such amendment evidencing the requisite
Percentage Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the offices designated by the Trustee for such
purposes or the office or agency maintained by the Trustee, accompanied by a
written instrument of transfer in form satisfactory to the Trustee and the
Certificate Registrar duly executed by the holder hereof or such holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class in authorized denominations and evidencing the same aggregate
Percentage Interest in the Trust Fund will be issued to the designated
transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor, Chase, Accredited and the Trustee and any agent of
the Depositor or the Trustee may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and neither the Depositor,
the Trustee, nor any such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 9.01 of the Agreement
will have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________.
Dated:
______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_______________________________________________,
_____________________________________________________________________________,
for the account of___________________________________________________________,
account number_______________, or, if mailed by check, to____________________.
Applicable statements should be mailed to____________________________________,
_____________________________________________________________________________.
This information is provided by__________________________________,
the assignee named above, or_________________________________________________,
as its agent.
EXHIBIT C
FORM OF CLASS R CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN THREE "REAL ESTATE MORTGAGE INVESTMENT CONDUITS," AS THOSE TERMS
ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE A REPRESENTATION LETTER TO THE EFFECT THAT
SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO MATERIALLY SIMILAR PROVISIONS
OF APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") OR A PERSON INVESTING
ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN. In the event that such
representation is violated, or any attempt IS MADE to transfer to a plan or
arrangement subject to Section 406 of ERISA, a plan subject to Section 4975 of
the Code OR A PLAN SUBJECT TO SIMILAR LAW, or a person acting on behalf of any
such plan or arrangement or using the assets of any such plan or arrangement,
such attempted transfer or acquisition shall be void and of no effect.
Certificate No. : 1
Cut-off Date : October 1, 2003
First Distribution Date : November 25, 2003
Percentage Interest of :
this Certificate
("Denomination") : 100%
CUSIP : 00000XXX0
ISIN : US36228FYQ35
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2003-AHL
Mortgage Pass-Through Certificates, Series 2003-AHL
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, Accredited, Chase or the Trustee referred to below
or any of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
This certifies that [_____________________] is the registered owner
of the Percentage Interest specified above of any monthly distributions due to
the Class R Certificates pursuant to a Pooling and Servicing Agreement dated as
of October 1, 2003 (the "Agreement") among GS Mortgage Securities Corp., as
depositor (the "Depositor"), Chase Manhattan Mortgage Corporation, as servicer
("Chase"), Accredited Home Lenders, Inc., as a servicer and responsible party
("Accredited"), and Xxxxx Fargo Bank Minnesota, National Association, as trustee
(the "Trustee"). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the
Trust Fund will be made only upon presentment and surrender of this Class R
Certificate at the offices designated by the Trustee for such purposes or the
office or agency maintained by the Trustee.
No transfer of a Class R Certificate shall be made unless the
Trustee shall have received a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan or
arrangement subject to Section 406 of ERISA, a plan or arrangement subject to
Section 4975 of the Code or a plan subject to Similar Law, or a person acting on
behalf of any such plan or arrangement nor using the assets of any such plan or
arrangement to effect such transfer, which representation letter shall not be an
expense of the Trustee, the Servicer or the Trust Fund. In the event that such
representation is violated, or any attempt is made to transfer to a plan or
arrangement subject to Section 406 of ERISA or a plan subject to Section 4975 of
the Code or a plan subject to Similar Law, or a person acting on behalf of any
such plan or arrangement or using the assets of any such plan or arrangement,
such attempted transfer or acquisition shall be void and of no effect.
Each Holder of this Class R Certificate shall be deemed by the
acceptance or acquisition an Ownership Interest in this Class R Certificate to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in this Class R Certificate are
expressly subject to the following provisions: (i) each Person holding or
acquiring any Ownership Interest in this Class R Certificate shall be a
Permitted Transferee and shall promptly notify the Trustee of any change or
impending change in its status as a Permitted Transferee, (ii) no Ownership
Interest in this Class R Certificate may be registered on the Closing Date or
thereafter transferred, and the Trustee shall not register the Transfer of this
Certificate unless, in addition to the certificates required to be delivered to
the Trustee under Section 5.02(b) of the Agreement, the Trustee shall have been
furnished with a Transfer Affidavit of the initial owner or the proposed
transferee in the form attached as Exhibit G to the Agreement, (iii) each Person
holding or acquiring any Ownership Interest in this Class R Certificate shall
agree (A) to obtain a Transfer Affidavit from any other Person to whom such
Person attempts to Transfer its Ownership Interest this Class R Certificate, (B)
to obtain a Transfer Affidavit from any Person for whom such Person is acting as
nominee, trustee or agent in connection with any Transfer of this Class R
Certificate, (C) not to cause income with respect to the Class R Certificate to
be attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of such Person or any other U.S.
Person and (D) not to Transfer the Ownership Interest in this Class R
Certificate or to cause the Transfer of the Ownership Interest in this Class R
Certificate to any other Person if it has actual knowledge that such Person is
not a Permitted Transferee and (iv) any attempted or purported Transfer of the
Ownership Interest in this Class R Certificate in violation of the provisions
herein shall be absolutely null and void and shall vest no rights in the
purported Transferee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated:______
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
not in its individual capacity, but
solely as
Trustee
By:____________________________________
Countersigned:
By: _________________________________________________
Authorized Signatory of
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Trustee
GSAMP Trust 2003-AHL
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2003-AHL Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date applicable to each
Distribution Date is the last Business Day of the month next 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 Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the offices designated by the Trustee for such
purposes or such other location specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, Chase, Accredited and the Trustee with the consent of the
Holders of Certificates affected by such amendment evidencing the requisite
Percentage Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the offices designated by the Trustee for such
purposes or the office or agency maintained by the Trustee, accompanied by a
written instrument of transfer in form satisfactory to the Trustee and the
Certificate Registrar duly executed by the holder hereof or such holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class in authorized denominations and evidencing the same aggregate
Percentage Interest in the Trust Fund will be issued to the designated
transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor, Chase, Accredited and the Trustee and any agent of
the Depositor or the Trustee may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and neither the Depositor,
the Trustee, nor any such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 9.01 of the Agreement
will have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto____________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
________________________________________________________________________________
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________.
Dated:
______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_______________________________________________,
_____________________________________________________________________________,
for the account of___________________________________________________________,
account number_______________, or, if mailed by check, to____________________.
Applicable statements should be mailed to____________________________________,
_____________________________________________________________________________.
This information is provided by__________________________________,
the assignee named above, or_________________________________________________,
as its agent.
EXHIBIT D
FORM OF CLASS X CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS 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.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR LETTER IN THE FORM OF
EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (i) THE TRUSTEE
RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED
TO HEREIN OR (ii) THE TRUSTEE RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE
EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE EFFECT
THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN SUBJECT TO APPLICABLE FEDERAL,
STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN
ASSETS OF SUCH A PLAN, OR, IF THE TRANSFEREE IS AN INSURANCE COMPANY, A
REPRESENTATION LETTER THAT IT IS USING THE ASSETS OF ITS GENERAL ACCOUNT AND
THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE ARE COVERED UNDER SECTIONS I
AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR AN OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE AND THE SERVICER, TO THE EFFECT THAT THE PURCHASE OR
HOLDING OF THIS CERTIFICATE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND
BEING DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE PROHIBITED TRANSACTION
PROVISIONS OF TITLE I OF ERISA AND THE CODE OR SIMILAR VIOLATION OF SIMILAR LAW
AND WILL NOT SUBJECT THE TRUSTEE OR THE SERVICER TO ANY OBLIGATION IN ADDITION
TO THOSE EXPRESSLY UNDERTAKEN IN THIS AGREEMENT OR TO ANY LIABILITY.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF
THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I
OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW WITHOUT THE REPRESENTATION
LETTER OR OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE
SHALL BE VOID AND OF NO EFFECT.
Certificate No. :
Cut-off Date : October 1, 2003
First Distribution Date : November 25, 2003
Percentage Interest of this
Certificate ("Denomination") : 100%
CUSIP : 00000XXX0
XXXX: : US36228FYN04
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2003-AHL
Mortgage Pass-Through Certificates, Series 2003-AHL
Class X
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced
Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Certificate does not evidence an obligation
of, or an interest in, and is not guaranteed by the Depositor, Accredited, Chase
or the Trustee referred to below or any of their respective affiliates. Neither
this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that [_______________________] is the registered
owner of the Percentage Interest evidenced by this Certificate (obtained by
dividing the denomination of this Certificate by the aggregate of the
denominations of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions pursuant to a Pooling and Servicing
Agreement dated as of October 1, 2003 (the "Agreement") among GS Mortgage
Securities Corp., as depositor (the "Depositor"), Chase Manhattan Mortgage
Corporation, as servicer ("Chase"), Accredited Home Lenders, Inc., as servicer
and responsible party ("Accredited"), and Xxxxx Fargo Bank Minnesota, National
Association, as trustee (the "Trustee"). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
This Certificate will be entitled to distributions only to the
extent set forth in the Agreement. In addition, any distribution of the proceeds
of any remaining assets of the Trust will be made only upon presentment and
surrender of this Certificate at the offices designated by the Trustee for such
purposes or the office or agency maintained by the Trustee.
No transfer of a Certificate of this Class shall be made unless such
disposition is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "1933 Act"), and any applicable state securities laws
or is made in accordance with the 1933 Act and such laws. In the event of any
such transfer, the Trustee shall require the transferor to execute a transferor
certificate (in substantially the form attached to the Pooling and Servicing
Agreement) and deliver either (i) a Rule 144A Letter, in either case
substantially in the form attached to the Agreement, or (ii) a written Opinion
of Counsel to the Trustee that such transfer may be made pursuant to an
exemption, describing the applicable exemption and the basis therefor, from the
1933 Act or is being made pursuant to the 1933 Act, which Opinion of Counsel
shall be an expense of the transferor.
No transfer of a Certificate of this Class shall be made unless the
Trustee shall have received either (i) a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA, Section 4975 of the Code
or any materially similar provisions of applicable Federal, state or local law
("Similar Law"), or a person acting on behalf of or investing plan assets of any
such plan, which representation letter shall not be an expense of the Trustee,
or (ii) if the transferee is an insurance company, a representation letter that
it is purchasing such Certificates with the assets of its general account and
that the purchase and holding of such Certificates are covered under Sections I
and III of PTCE 95-60, or (iii) in the case of a Certificate presented for
registration in the name of an employee benefit plan subject to ERISA, or a plan
or arrangement subject to Section 4975 of the Code (or comparable provisions of
any subsequent enactments) or a plan subject to Similar Law, or a trustee of any
such plan or any other person acting on behalf of any such plan or arrangement
or using such plan's or arrangement's assets, an Opinion of Counsel satisfactory
to the Trustee and the Servicer, which Opinion of Counsel shall not be an
expense of the Trustee, the Servicer or the Trust Fund, addressed to the
Trustee, to the effect that the purchase or holding of such Certificate will not
result in the assets of the Trust Fund being deemed to be "plan assets" and
subject to the prohibited transaction provisions of ERISA and the Code and will
not subject the Trustee or the Servicer to any obligation in addition to those
expressly undertaken in this Agreement or to any liability.
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 countersigned by an
authorized signatory of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated:______
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
not in its individual capacity, but
solely as
Trustee
By:____________________________________
Countersigned:
By: ________________________________________________
Authorized Signatory of
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Trustee
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2003-AHL
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2003-AHL Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date applicable to each
Distribution Date is the last Business Day of the month next 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 Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the offices designated by the Trustee for such
purposes or such other location specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, Chase, Accredited and the Trustee with the consent of the
Holders of Certificates affected by such amendment evidencing the requisite
Percentage Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the offices designated by the Trustee for such
purposes or the office or agency maintained by the Trustee, accompanied by a
written instrument of transfer in form satisfactory to the Trustee and the
Certificate Registrar duly executed by the holder hereof or such holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class in authorized denominations and evidencing the same aggregate
Percentage Interest in the Trust Fund will be issued to the designated
transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor, Chase, Accredited and the Trustee and any agent of
the Depositor or the Trustee may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and neither the Depositor,
the Trustee, nor any such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 9.01 of the Agreement
will have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________.
Dated:
______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_______________________________________________,
_____________________________________________________________________________,
for the account of___________________________________________________________,
account number_______________, or, if mailed by check, to____________________.
Applicable statements should be mailed to____________________________________,
_____________________________________________________________________________.
This information is provided by__________________________________,
the assignee named above, or_________________________________________________,
as its agent.
EXHIBIT E
FORM OF INITIAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Servicer]
_____________________
_____________________
Re: Pooling and Servicing Agreement among GS Mortgage Securities Corp.,
as Depositor, Chase Manhattan Mortgage Corporation, as Servicer,
Accredited Home Lenders, Inc., as a servicer and Responsible Party
and Xxxxx Fargo Bank Minnesota, National Association, as Trustee,
GSAMP Trust, 2003-AHL
--------------------------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
Trustee, for each Mortgage Loan listed in the Mortgage Loan Schedule (other than
any Mortgage Loan listed in the attached schedule of exceptions), certifies that
it has received:
(i) the original Mortgage Note, endorsed as provided in the
following form: "Pay to the order of ________, without recourse"; and
(ii) a duly executed Assignment of Mortgage (which may be included
in a blanket assignment or assignments).
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
Mortgage Loan.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Trustee makes no representations as to: (i)
the validity, legality, sufficiency, enforceability, recordability or
genuineness of any of the documents contained in each Mortgage File of any of
the Mortgage Loans identified on the Mortgage Loan Schedule, or (ii) the
collectability, insurability, effectiveness or suitability of any such Mortgage
Loan or the perfection or priority of any Mortgage.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Trustee
By:____________________________________
Name:__________________________________
Title:_________________________________
EXHIBIT F
FORM OF DOCUMENT CERTIFICATION
AND EXCEPTION REPORT OF TRUSTEE
[date]
[Depositor]
[Servicer]
[Responsible Party]
_____________________
_____________________
Re: Pooling and Servicing Agreement among GS Mortgage Securities Corp.,
as Depositor, Chase Manhattan Mortgage Corporation, as Servicer,
Accredited Home Lenders, Inc., as a servicer and Responsible Party
and Xxxxx Fargo Bank Minnesota, National Association, as Trustee,
GSAMP Trust, 2003-AHL
--------------------------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
Trustee, hereby certifies that as to each Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Mortgage Loan paid in full or listed on the
attached Document Exception Report) it has received:
(i) The original Mortgage Note, endorsed in the form provided in
Section 2.01 of the Pooling and Servicing Agreement, with all intervening
endorsements showing a complete chain of endorsement from the originator
to the last endorsee.
(ii) The original recorded Mortgage.
(iii) A duly executed Assignment of Mortgage in the form provided in
Section 2.01 of the Pooling and Servicing Agreement; or, if the
Responsible Party has certified or the Trustee otherwise knows that the
related Mortgage has not been returned from the applicable recording
office, a copy of the Assignment of Mortgage (excluding information to be
provided by the recording office).
(iv) The original or duplicate original recorded assignment or
assignments of the Mortgage showing a complete chain of assignment from
the originator to the last endorsee.
(v) The original or duplicate original lender's title policy and all
riders thereto or, any one of an original title binder, an original
preliminary title report or an original title commitment, or a copy
thereof certified by the title company.
Based on its review and examination and only as to the foregoing
documents, (a) such documents appear regular on their face and related to such
Mortgage Loan, and (b) the information set forth in items (1), (2) and (13) of
the Mortgage Loan Schedule and the Data Tape Information accurately reflects
information set forth in the Custodial File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review of the Custodial File
specifically required in the Pooling and Servicing Agreement. The Trustee makes
no representations as to: (i) the validity, legality, sufficiency,
enforceability, recordability or genuineness of any of the documents contained
in each Mortgage File of any of the Mortgage Loans identified on the Mortgage
Loan Schedule or (ii) the collectability, insurability, effectiveness or
suitability of any such Mortgage Loan or the perfection or priority of any
Mortgage. Notwithstanding anything herein to the contrary, the Trustee has made
no determination and makes no representations as to whether (i) any endorsement
is sufficient to transfer all right, title and interest of the party so
endorsing, as Noteholder or assignee thereof, in and to that Mortgage Note or
(ii) any assignment is in recordable form or sufficient to effect the assignment
of and transfer to the assignee thereof, under the Mortgage to which the
assignment relates.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Trustee
By:____________________________________
Name:__________________________________
Title:_________________________________
EXHIBIT G
RESIDUAL TRANSFER AFFIDAVIT
GSAMP Trust 2003-AHL,
Mortgage Pass-Through Certificates
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as
follows:
1. The undersigned is an officer of ___________________, the
proposed Transferee of an Ownership Interest in a Residual Certificate (the
"Certificate") issued pursuant to the Pooling and Servicing Agreement dated as
of October 1, 2003 (the "Agreement"), among GS Mortgage Securities Corp., as
depositor (the "Depositor"), Chase Manhattan Mortgage Corporation, as servicer
("Chase"), Accredited Home Lenders, Inc., as servicer and responsible party
("Accredited"), and Xxxxx Fargo Bank Minnesota, National Association, as trustee
(the "Trustee"). Capitalized terms used, but not defined herein or in Exhibit 1
hereto, shall have the meanings ascribed to such terms in the Agreement. The
Transferee has authorized the undersigned to make this affidavit on behalf of
the Transferee for the benefit of the Depositor and the Trustee.
2. The Transferee is, as of the date hereof, and will be, as of the
date of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate for its own account. The Transferee has no
knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a
tax will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the subsequent Transferee furnished to such Person an affidavit that
such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax
will be imposed on a "pass-through entity" holding the Certificate if at any
time during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is a Permitted Transferee and the pass-through
entity does not have actual knowledge that such affidavit is false. (For this
purpose, a "pass-through entity" includes a regulated investment company, a real
estate investment trust or common trust fund, a partnership, trust or estate,
and certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for another
Person.)
5. The Transferee has reviewed the provisions of Section 5.02(c) of
the Agreement and understands the legal consequences of the acquisition of an
Ownership Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding voiding the
Transfer and mandatory sales. The Transferee expressly agrees to be bound by and
to abide by the provisions of Section 5.02(c) of the Agreement and the
restrictions noted on the face of the Certificate. The Transferee understands
and agrees that any breach of any of the representations included herein shall
render the Transfer to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit H to the Agreement (a "Transferor Certificate") to the
effect that such Transferee has no actual knowledge that the Person to which the
Transfer is to be made is not a Permitted Transferee.
7. The Transferee has historically paid its debts as they have come
due, intends to pay its debts as they come due in the future, and understands
that the taxes payable with respect to the Certificate may exceed the cash flow
with respect thereto in some or all periods and intends to pay such taxes as
they become due. The Transferee does not have the intention to impede the
assessment or collection of any tax legally required to be paid with respect to
the Certificate.
8. The Transferee's taxpayer identification number is __________.
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
10. The Transferee is aware that the Certificate may be a
"noneconomic residual interest" within the meaning of proposed Treasury
regulations promulgated pursuant to the Code and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with respect
to the income on such residual interest, unless no significant purpose of the
transfer was to impede the assessment or collection of tax.
11. The Transferee will not cause income from the Certificate to be
attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of the Transferee or any other U.S.
person.
12. Check one of the following:
/ / The present value of the anticipated tax liabilities associated
with holding the Certificate, as applicable, does not exceed the sum of:
(i) the present value of any consideration given to the Transferee
to acquire such Certificate;
(ii) the present value of the expected future distributions on such
Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such Certificate as the related REMIC generates
losses.
For purposes of this calculation, (i) the Transferee is assumed to
pay tax at the highest rate currently specified in Section 11(b) of the Code
(but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of the
highest rate specified in Section 11(b) of the Code if the Transferee has been
subject to the alternative minimum tax under Section 55 of the Code in the
preceding two years and will compute its taxable income in the current taxable
year using the alternative minimum tax rate) and (ii) present values are
computed using a discount rate equal to the short-term Federal rate prescribed
by Section 1274(d) of the Code for the month of the transfer and the compounding
period used by the Transferee.
/ / The transfer of the Certificate complies with U.S. Treasury
Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in
U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), as to
which income from the Certificate will only be taxed in the
United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the
transfer, the Transferee had gross assets for financial
reporting purposes (excluding any obligation of a person
related to the Transferee within the meaning of U.S. Treasury
Regulations Section 1.860E-1(c)(6)(ii)) in excess of $100
million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Certificate only to another
"eligible corporation," as defined in U.S. Treasury
Regulations Section 1.860E-1(c)(6)(i), in a transaction that
satisfies the requirements of Sections 1.860E-1(c)(4)(i), (ii)
and (iii) and Section 1.860E-1(c)(5) of the U.S. Treasury
Regulations; and
(iv) the Transferee determined the consideration paid to it to
acquire the Certificate based on reasonable market assumptions
(including, but not limited to, borrowing and investment
rates, prepayment and loss assumptions, expense and
reinvestment assumptions, tax rates and other factors specific
to the Transferee) that it has determined in good faith.
/ / None of the above.
13. The Transferee is not an employee benefit plan that is subject
to Title I of ERISA or a plan that is subject to Section 4975 of the Code or a
plan subject to any Federal, state or local law that is substantially similar to
Title I of ERISA or Section 4975 of the Code, and the Transferee is not acting
on behalf of or investing plan assets of such a plan.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
duly authorized officer and its corporate seal to be hereunto affixed, duly
attested, this day of , 20 .
______________________________________
Print Name of Transferee
By:____________________________________
Name:
Title:
[Corporate Seal]
ATTEST:
_______________________________________
[Assistant] Secretary
Personally appeared before me the above-named __________, known or
proved to me to be the same person who executed the foregoing instrument and to
be the ___________ of the Transferee, and acknowledged that he executed the same
as his free act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this_____ day of__________, 20__.
_______________________________________
NOTARY PUBLIC
My Commission expires the __ day
of _________, 20__
EXHIBIT H
FORM OF TRANSFEROR CERTIFICATE
__________, 20__
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Xxxxx Fargo Bank Minnesota, National Association,
as Trustee,
Xxxxx Fargo Center
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Re: GSAMP Trust, 2003-AHL, Mortgage Pass-Through Certificates, Class [ ]
--------------------------------------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being disposed
by us in a transaction that is exempt from the registration requirements of the
Act, (b) we have not offered or sold any Certificates to, or solicited offers to
buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, in a manner that would be deemed, or taken
any other action which would result in, a violation of Section 5 of the Act and
(c) to the extent we are disposing of a Residual Certificate, (A) we have no
knowledge the Transferee is not a Permitted Transferee and (B) after conducting
a reasonable investigation of the financial condition of the Transferee, we have
no knowledge and no reason to believe that the Transferee will not pay all taxes
with respect to the Residual Certificates as they become due and (C) we have no
reason to believe that the statements made in paragraphs 7, 10 and 11 of the
Transferee's Residual Transfer Affidavit are false.
Very truly yours,
_______________________________________
Print Name of Transferor
By:____________________________________
Authorized Officer
EXHIBIT I
FORM OF RULE 144A LETTER
____________, 20__
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Xxxxx Fargo Bank Minnesota, National Association,
as Trustee,
Xxxxx Fargo Center
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Re: GSAMP Trust 2003-AHL, Mortgage Pass-Through Certificates, Class [ ]
-------------------------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we have
such knowledge and experience in financial and business matters that we are
capable of evaluating the merits and risks of investments in the Certificates,
(c) we have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) either we are not an employee benefit plan that
is subject to Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or a plan or arrangement that is subject to Section 4975 of
the Internal Revenue Code of 1986, as amended (the "Code"), or a plan subject to
any Federal, state or local law materially similar to the foregoing provisions
of ERISA or the Code, nor are we acting on behalf of any such plan or
arrangement nor using the assets of any such plan or arrangement to effect such
acquisition, or, with respect to a Class X Certificate, the purchaser is an
insurance company that is purchasing this certificate with funds contained in an
"insurance company general account" (as such term is defined in Section V(e) of
Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the
purchase and holding of such Certificates are covered under Sections I and III
of PTCE 95-60, (e) we have not, nor has anyone acting on our behalf offered,
transferred, pledged, sold or otherwise disposed of the Certificates, any
interest in the Certificates or any other similar security to, or solicited any
offer to buy or accept a transfer, pledge or other disposition of the
Certificates, any interest in the Certificates or any other similar security
from, or otherwise approached or negotiated with respect to the Certificates,
any interest in the Certificates or any other similar security with, any person
in any manner, or made any general solicitation by means of general advertising
or in any other manner, or taken any other action, that would constitute a
distribution of the Certificates under the Securities Act or that would render
the disposition of the Certificates a violation of Section 5 of the Securities
Act or require registration pursuant thereto, nor will act, nor has authorized
or will authorize any person to act, in such manner with respect to the
Certificates, and (f) we are a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act and have completed either of the
forms of certification to that effect attached hereto as Annex 1 or Annex 2. We
are aware that the sale to us is being made in reliance on Rule 144A. We are
acquiring the Certificates for our own account or for resale pursuant to Rule
144A and further, understand that such Certificates may be resold, pledged or
transferred only (i) to a person reasonably believed to be a qualified
institutional buyer that purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to another
exemption from registration under the Securities Act.
ANNEX 1 TO EXHIBIT I
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to
the parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A"), because (i) the Buyer owned
and/or invested on a discretionary basis $ 1 in securities (except for the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule 144A and (ii)
the Buyer satisfies the criteria in the category marked below.
____ Corporation, etc. The Buyer is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or
charitable organization described in Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended.
____ Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the
District of Columbia, the business of which is substantially
confined to banking and is supervised by the State or
territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited
net worth of at least $25,000,000 as demonstrated in its
latest annual financial statements, a copy of which is
attached hereto.
____ Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a State or Federal authority having
supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto.
____ Broker-dealer. The Buyer is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
____ Insurance Company. The Buyer is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State,
territory or the District of Columbia.
____ State or Local Plan. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
____ ERISA Plan. The Buyer is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security
Act of 1974.
____ Investment Advisor. The Buyer is an investment advisor
registered under the Investment Advisors Act of 1940.
____ Small Business Investment Company. Buyer is a small business
investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958.
____ Business Development Company. Buyer is a business development
company as defined in Section 202(a)(22) of the Investment
Advisors Act of 1940.
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 agreement, (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 agreement,
(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 OF REQUEST FOR RELEASE
(for Trustee)
To: Xxxxx Fargo Bank Minnesota, N.A.
0000 00xx Xxxxxx X.X.
Xxxxxxxxxxx, XX 00000-0000
Attn: Inventory Control
Re: Pooling and Servicing Agreement among GS Mortgage Securities
Corp., as Depositor, Chase Manhattan Mortgage Corporation, as
Servicer, Accredited Home Lenders, Inc., as a servicer and
Responsible Party and Xxxxx Fargo Bank Minnesota, National
Association, as Trustee, GSAMP Trust, 2003-AHL
-------------------------------------------------------------
In connection with the administration of the Mortgage Loans held by
you as the Trustee on behalf of the Certificateholders pursuant to the
above-captioned Pooling Agreement, we request the release, and acknowledge
receipt, of the Trustee's Mortgage File for the Mortgage Loan described below,
for the reason indicated.
Mortgage Loan Number:
Mortgagor's Name, Address & Zip Code:
Reason for Requesting Documents (check one)
____ 1. Mortgage Paid in Full.
____ 2. Foreclosure
____ 3. Substitution
____ 4. Other Liquidation (Repurchases, etc.)
____ 5. Nonliquidation Reason: __________________________________
Address to which Trustee should
Deliver the Trustee's Mortgage File: __________________________________
__________________________________
__________________________________
By:____________________________________
(authorized signer)
Issuer:________________________________
Address:_______________________________
Date:__________________________________
Trustee
Xxxxx Fargo Bank Minnesota, N.A.
Please acknowledge the execution of the above request by your signature and date
below:
________________________________________ ____________________________________
Signature Date
Documents returned to Trustee:
________________________________________ ____________________________________
Trustee Date
EXHIBIT K
CONTENTS OF EACH MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall include
each of the following items, which shall be available for inspection by the
Purchaser and which shall be retained by the Servicer or delivered to and
retained by the Trustee, as applicable:
(a) The original Mortgage Note bearing all intervening endorsements,
showing a complete chain of endorsement from the originator to
the last endorsee endorsed "Pay to the order of
_________________, without recourse" and signed (which may be by
facsimile signature) in the name of the last endorsee by an
authorized officer. To the extent that there is no room on the
face of the Mortgage Notes for endorsements, the endorsement may
be contained on an allonge, if state law so allows and the
Trustee is so advised by the Responsible Party that state law so
allows.
(b) The original of any guaranty executed in connection with the
Mortgage Note.
(c) The original Mortgage with evidence of recording thereon or a
certified true copy of such Mortgage submitted for recording. If
in connection with any Mortgage Loan, the Responsible Party
cannot deliver or cause to be delivered the original Mortgage
with evidence of recording thereon on or prior to the Closing
Date because of a delay caused by the public recording office
where such Mortgage has been delivered for recordation or
because such Mortgage has been lost or because such public
recording office retains the original recorded Mortgage, the
Responsible Party (to the extent that it has not previously
delivered the same to the Purchaser or the Trustee) shall
deliver or cause to be delivered to the Trustee, (1) a photocopy
of such Mortgage, certified by the Responsible Party (or
certified by the title company, escrow agent, or closing
attorney) to be a true and complete copy of such Mortgage
dispatched to the appropriate public recording office for
recordation; and (2) upon receipt thereof by the Responsible
Party, the original recorded Mortgage, or, in the case of a
Mortgage where a public recording office retains the original
recorded Mortgage or in the case where a Mortgage is lost after
recordation in a public recording office, a copy of such
Mortgage certified by such public recording office to be a true
and complete copy of the original recorded Mortgage;
(d) The originals of all assumption, modification, consolidation or
extension agreements, with evidence of recording thereon or a
certified true copy of such agreement submitted for recording.
(e) Except with respect to each MERS Designated Mortgage Loan, the
original Assignment of Mortgage for each Mortgage Loan endorsed
in blank and in recordable form.
(f) The originals of all intervening Assignments of Mortgage (if
any) evidencing a complete chain of assignment from the
applicable originator (or MERS with respect to each MERS
Designated Mortgage Loan) to the last endorsee with evidence of
recording thereon, or if any such intervening assignment has not
been returned from the applicable recording office or has been
lost or if such public recording office retains the original
recorded Assignments of Mortgage, the Responsible Party (to the
extent that it has not previously delivered the same to the
Purchaser or the Trustee) shall deliver or cause to be delivered
to the Trustee, (1) a photocopy of such intervening assignment,
certified by the Responsible Party (or certified by the title
company, escrow agent, or closing attorney) to be a complete
copy of such intervening Assignment of Mortgage dispatched to
the appropriate public recording office for recordation upon
receipt thereof by the Responsible Party, and (2) the original
recorded intervening assignment or in the case where an
intervening assignment is lost after recordation in a public
recording office, a copy of such intervening assignment
certified by such public recording office to be a true and
complete copy of the original recorded intervening assignment;
(g) The original mortgagee title insurance policy or attorney's
opinion of title and abstract of title or, in the event such
original title policy is unavailable, a certified true copy of
the related policy binder or commitment for title certified to
be true and complete by the title insurance company.
(h) The original of any security agreement, chattel mortgage or
equivalent document executed in connection with the Mortgage (if
provided).
(i) Residential loan application.
(j) Mortgage Loan closing statement.
(k) Verification of employment and income, if applicable.
(l) Verification of acceptable evidence of source and amount of down
payment.
(m) Credit report on Mortgagor.
(n) Residential appraisal report.
(o) Photograph of the Mortgaged Property.
(p) Survey of the Mortgaged Property.
(q) Copy of each instrument necessary to complete identification of
any exception set forth in the exception schedule in the title
policy, i.e., map or plat, restrictions, easements, sewer
agreements, home association declarations, etc.
(r) All required disclosure statements.
(s) If required in an appraisal, termite report, structural
engineer's report, water potability and septic certification.
(t) Sales contract, if applicable.
(u) Original powers of attorney, if applicable, with evidence of
recording thereon, if required.
Evidence of payment of taxes and insurance, insurance claim files,
correspondence, current and historical computerized data files (which include
records of tax receipts and payment history from the date of origination), and
all other processing, underwriting and closing papers and records which are
customarily contained in a mortgage loan file and which are required to document
the Mortgage Loan or to service the Mortgage Loan.
EXHIBIT L
POWER OF ATTORNEY
Record and Return to:
Paid Accounts Dept. #410
Chase Manhattan Mortgage Corporation
XX Xxx 000000
Xxx Xxxxx, XX 00000-0000
LIMITED POWER OF ATTORNEY
This Limited Power of Attorney is made as of _____________ by Xxxxx
Fargo Bank Minnesota, National Association, having an office at
_____________________________ (the "Trustee") as Trustee for the GSAMP 2003-AHL
Trust (the "Trust"), in favor of Chase Manhattan Mortgage Corporation, a New
Jersey corporation, having an office at 00000 Xxxxxx Xxxxxxxx Xxxx, Xxx Xxxxx,
XX 00000 ("Servicer").
WHEREAS, the Trustee and Servicer have executed and delivered a
certain Pooling and Servicing Agreement dated as of October 1, 2003 (the
"Pooling and Servicing Agreement"), pursuant to which the Trustee and Servicer
agreed to certain terms governing the servicing of single family mortgage loans
("Mortgage Loans") by Servicer on behalf of the Trustee; and
WHEREAS, the Trustee and Servicer desire that the Trustee execute
and deliver this Limited Power of Attorney in order to facilitate the servicing
of the Mortgage Loans by Servicer; and
NOW THEREFORE, the Trustee does hereby appoint, subject to and in
accordance with the Pooling and Servicing Agreement, Servicer, as its
attorney-in-fact, in its name, place and stead:
1. To execute all documents necessary to satisfy or discharge "security
instruments" and "notes" upon receipt of all principal, interest and other
payments called for in the related lien documents;
2. To take such actions as are necessary and appropriate to pursue, prosecute
and defend foreclosures (or other comparable conversions to Trusteeship),
ejectments, evictions, bankruptcies, suits and other related matters with
respect to "Mortgaged Properties" (as defined in the Pooling and Servicing
Agreement), in accordance with the Pooling and Servicing Agreement;
3. To execute all deeds, deeds to secure debt, assignments, transfers, tax
declarations, certificates, pledges and any other documents or instruments
whatsoever which are necessary, appropriate, or required in order to
transfer and assign Mortgaged Properties acquired by the Trustee on behalf
of the Trust either by foreclosure or by deed in lieu of foreclosure and
any such deed to be without recourse;
4. To endorse checks, notes, drafts and other evidences of payment made
payable to the Trustee on behalf of the Trust, representing payments on
accounts in the name of the Trustee on behalf of the Trust.
5. To execute subordination agreements affecting the lien priority of the
Security Instruments.
6. To take such further actions as are deemed necessary or desirable to
service, administer, and enforce the terms of said Mortgage Loans in
accordance with the Pooling and Servicing Agreement; and
Until a properly executed revocation of this Limited Power of
Attorney is duly executed and delivered, all parties dealing with said
attorney-in-fact (individually or collectively) in connection with the above
described matters may fully rely upon the power and authority of said
attorney-in-fact to act for and on behalf of the undersigned, and in its name,
place and stead, and may accept and rely on all documents and agreements entered
into by said attorney-in-fact pursuant to the powers listed herein.
As between the Trustee and Servicer, this Limited Power of Attorney
shall be effective as ______________ and shall remain in full force and effect
thereafter until a written notice of revocation hereof shall have been executed
by the Trustee. The expiration or revocation of the period of agency hereunder
shall in no wise affect the validity of any actions of said Attorney-In-Fact
during said period. This Limited Power of Attorney is not intended to modify or
expand the rights and obligations of Servicer as set forth in the Pooling and
Servicing Agreement.
Nothing in this Limited Power of Attorney shall be construed to
prevent the Trustee from acting on its behalf as the Trustee of the Mortgage
Loans.
IN WITNESS WHEREOF, the Trustee has caused this Limited Power of
Attorney to be signed and executed as its seal hereto affixed in its name by its
proper officer thereunto duly authorized on the ______ day of _________________,
2003.
[___________________________________]
By:____________________________________
Name:
Title:
_________________________________________
Witness
_________________________________________
Witness
State of [________________________]:
County of [______________________]:
On this, the _____ day of _____________, 2003, before me, a Notary
Public in and for said County and State, personally appeared,
______________________, personally known to me (or proved on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which
the person(s) acted, executed the instrument.
WITNESS my hand and official seal
_________________________
Notary Signature
My Commission Expires on ________________.
EXHIBIT M
FORM OF CERTIFICATION TO BE PROVIDED WITH FORM 10-K
Re: GSAMP Trust 2003-AHL (the "Trust") Mortgage Pass-Through
Certificates, Series 2003-AHL, issued pursuant to the Pooling
and Servicing Agreement, dated as of October 1, 2003 (the
"Pooling and Servicing Agreement"), among GS Mortgage Securities
Corp., as depositor, Chase Manhattan Mortgage Corporation, as
servicer ("Chase"), Accredited Home Lenders, Inc., as
responsible party ("Accredited") and Xxxxx Fargo Bank Minnesota,
National Association, as trustee (the "Trustee")
----------------------------------------------------------------
I, [identify the certifying individual], certify that:
1. I have reviewed this annual report on Form 10-K ("Annual Report"), and all
reports on Form 8-K containing distribution reports (collectively with
this Annual Report, the "Reports") filed in respect of periods included in
the year covered by this Annual Report, of the Trust;
2. Based on my knowledge, the information in the Reports, taken as a whole,
does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of
the last day of the period covered by this Annual Report;
3. Based on my knowledge, the distribution or servicing information required
to be provided to the Trustee by the Servicer under the Pooling and
Servicing Agreement for inclusion in the Reports is included in the
Reports;
4. Based on my knowledge and upon the annual compliance statement included in
this Annual Report and required to be delivered to the Trustee in
accordance with the terms of the Pooling and Servicing Agreement, and
except as disclosed in the Reports, the Servicer has fulfilled its
obligations under the Pooling and Servicing Agreement; and
5. The Reports disclose all significant deficiencies relating to the
Servicer's compliance with the minimum servicing standards based upon the
report provided by an independent public accountant, after conducting a
review in compliance with the Uniform Single Attestation Program for
Mortgage Bankers or similar procedure, as set forth in the Pooling and
Servicing Agreement, that is included in the Reports.
In giving the certifications above, I have reasonably relied on information
provided to me by the following unaffiliated parties: the Trustee and Chase.
Date: _________________________
_______________________________
[Signature]
[Title]
EXHIBIT N
FORM OF TRUSTEE CERTIFICATION TO BE PROVIDED TO DEPOSITOR
Re: GSAMP Trust 2003-AHL (the "Trust") Mortgage Pass-Through,
Certificates Series 2003-AHL, issued pursuant to the Pooling and
Servicing Agreement, dated as of October 1, 2003 (the "Pooling
and Servicing Agreement"), among GS Mortgage Securities Corp.,
as depositor (the "Depositor"), Chase Manhattan Mortgage
Corporation, as servicer ("Chase"), Accredited Home Lenders,
Inc., as servicer and responsible party ("Accredited") and Xxxxx
Fargo Bank Minnesota, National Association, as trustee (the
"Trustee")
----------------------------------------------------------------
I, [identify the certifying individual], a [title] of Xxxxx Fargo Bank
Minnesota, N.A. certify to the Depositor and its officers, directors and
affiliates, and with the knowledge and intent that they will rely upon this
certification, that:
1. I have reviewed the annual report on Form 10-K (the "Annual Report") for
the fiscal year [___], and all reports on Form 8-K containing distribution
reports filed in respect of periods included in the year covered by the
Annual Report (collectively with the Annual Report, the "Reports"), of the
Trust;
2. Based on my knowledge, the information in the Reports, taken as a whole,
does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of
the last day of the period covered by the Annual Report; and
3. Based on my knowledge, the distribution or servicing information required
to be provided to the Trustee by the Servicer under the Pooling and
Servicing Agreement for inclusion in the Reports is included in the
Reports.
Date: _________________________
XXXXX FARGO BANK MINNESOTA, N.A.
By: ______________________________
Name: _______________________________
Title: _______________________________
EXHIBIT O
FORM OF SERVICER CERTIFICATION TO BE PROVIDED TO DEPOSITOR
Re: GSAMP Trust 2003-AHL (the "Trust") Mortgage Pass-Through
Certificates, Series 2003-AHL, issued pursuant to the Pooling
and Servicing Agreement, dated as of October 1, 2003 (the
"Pooling and Servicing Agreement"), among GS Mortgage Securities
Corp., as depositor (the "Depositor"), Chase Manhattan Mortgage
Corporation, as servicer ("Chase"), Accredited Home Lenders,
Inc., as servicer and responsible party ("Accredited") and Xxxxx
Fargo Bank Minnesota, National Association, as trustee (the
"Trustee")
Chase,certifies to the Depositor and the Trustee, and their officers,
directors and affiliates, and with the knowledge and intent that
they will rely upon this certification, that:
1. Based on our knowledge, the information prepared by Chase and relating to
the mortgage loans serviced by Chase pursuant to the Pooling And Servicing
Agreement and provided by Chase to the Trustee in its reports to the
Trustee is accurate and complete in all material respects as of the last
day of the period covered by such report;
2. Based on our knowledge, the servicing information required to be provided
to the Trustee by Chase pursuant to the Pooling and Servicing Agreement
has been provided to the Trustee;
3. Based upon the review required under the Pooling and Servicing Agreement,
and except as disclosed in its annual compliance statement required to be
delivered pursuant to the Pooling and Servicing Agreement, Chase as of the
last day of the period covered by such annual compliance statement has
fulfilled its obligations under the Pooling and Servicing Agreement; and
4. Chase has disclosed to its independent auditor, who issues the independent
auditor's report on the Uniform Single Attestation Program for Mortgage
Bankers for Chase, any significant deficiencies relating to Chase's
compliance with minimum servicing standards.
CHASE MANHATTAN MORTGAGE CORPORATION
Date: _________________________
_______________________________
[Signature]
[Title]
EXHIBIT P
PURCHASE AGREEMENT