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EXHIBIT 4
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GS MORTGAGE SECURITIES CORP.,
Depositor,
COUNTRYWIDE HOME LOANS SERVICING LP,
Servicer,
NEW CENTURY MORTGAGE CORPORATION,
Servicer,
NC CAPITAL CORPORATION,
Responsible Party,
and
DEUTSCHE BANK NATIONAL TRUST COMPANY,
Trustee
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POOLING AND SERVICING AGREEMENT
Dated as of January 1, 2005
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GSAA HOME EQUITY TRUST 2005-2
ASSET-BACKED CERTIFICATES,
SERIES 2005-2
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<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
Section 1.01
Definitions....................................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage
Loans...................................
Section 2.02 Acceptance by the Trustee of the Mortgage
Loans................
Section 2.03 Representations, Warranties and Covenants of
the
Responsible Party and the
Servicer.............................
Section 2.04 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; Gramm-Leach-Bliley
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..........
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 Countrywide Home
Loans
Servicing LP
Schedule III Representations and Warranties of the Responsible
Party as to
the Mortgage Loans
Schedule IV Representations and Warranties of the Responsible
Party
Schedule V Representations and Warranties of New Century
EXHIBITS
Exhibit A Form of Class A, Class M and Class B Certificates
Exhibit B Form of Class R Certificate
Exhibit C Form of Class P Certificate
Exhibit D Form of Class X Certificate
Exhibit E Form of Initial Certification of Trustee
Exhibit F Form of Document Certification and Exception Report of
Trustee
Exhibit G Form of Residual Transfer Affidavit
Exhibit H Form of Transferor Certificate
Exhibit I Form of Rule 144A Letter
Exhibit J Form of Request for Release
Exhibit K Form of Contents for Each Mortgage File
Exhibit L Countrywide Reporting Requirements
Exhibit M Form of Certification to be provided with Form
10-K
Exhibit N Form of Trustee Certification to be provided to
Depositor
Exhibit O Form of Servicer Certification to be provided to
Depositor
<PAGE>
THIS POOLING AND SERVICING AGREEMENT, dated as of January 1,
2005,
among GS MORTGAGE SECURITIES CORP., a Delaware corporation (the
"Depositor"),
COUNTRYWIDE HOME LOANS SERVICING LP, a Texas limited
partnership, NC CAPITAL
CORPORATION, a California corporation, NEW CENTURY MORTGAGE
CORPORATION, a
California corporation, and DEUTSCHE BANK NATIONAL TRUST
COMPANY, a national
banking association (the "Trustee"),
W I T N E S S E T H:
- - - - - - - - - -
In consideration of the mutual agreements herein contained,
the
parties hereto agree as follows:
PRELIMINARY STATEMENT
The Trustee shall elect that two segregated asset pools within
the
Trust Fund be treated for federal income tax purposes as
comprising two REMICs
(each, a "Trust REMIC" or, in the alternative, the Lower Tier
REMIC and the
Upper Tier REMIC, respectively). The Class X Regular Interest
and each Class of
Principal Certificates (other than the right of each Class of
Principal
Certificates to receive Basis Risk Carry Forward Amounts)
represents ownership
of a regular interest in a REMIC for purposes of the REMIC
Provisions. The Class
R Certificates represent ownership of the sole class of residual
interest in
each of the Lower Tier REMIC and the Upper Tier REMIC for
purposes of the REMIC
Provisions. The Start-up Day for each REMIC described herein is
the Closing
Date. The latest possible maturity date for each Certificate is
the latest date
referenced in Section 2.06. The Upper Tier REMIC shall hold as
assets the
several classes of uncertificated Lower Tier Regular Interests,
set out below.
The Lower Tier REMIC shall hold as assets the assets described
in the definition
of "Trust Fund" herein (other than the Prepayment Premiums and
the Excess
Reserve Fund Account). Each such Lower Tier Regular Interest is
hereby
designated as a regular interest in the Lower Tier REMIC. The
Class LT-1A1,
Class LT-1A2, Class LT-2A1, Class LT-2A2, Class LT-2A3, Class
LT-M-1, Class
LT-M-2, Class LT-M-3, Class LT-M-4, Class LT-M-5, Class LT-M-6,
Class LT-B-1,
Class LT-B-2, Class LT-B-3 and Class LT-B-4 Interests are hereby
designated the
LT-Accretion Directed Classes (the "LT-Accretion Directed
Classes").
Each Class of Principal Certificates represents a beneficial
ownership of a regular interest in the Upper Tier REMIC and the
right to receive
Basis Risk Carry Forward Amounts, the Class X Certificates
represent beneficial
ownership of the Class X Regular Interest and the Excess Reserve
Fund Account
and the Class P Certificates represent beneficial ownership of
the Prepayment
Premiums, which portions of the Trust Fund shall be treated as a
grantor trust.
Corresponding
Upper Tier
Lower Tier Regular Lower Tier Initial Lower Tier Principal REMIC
Regular
Interest Interest Rate Amount Interest
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Class LT-1A1 (1) 1/2 initial Class Certificate 1A1
Balance of Corresponding
Upper Tier REMIC Regular
Interest
Class LT-1A2 (1) 1/2 initial Class Certificate 1A2
Balance of Corresponding
Upper Tier REMIC Regular
Interest
Class LT-2A1 (1) 1/2 initial Class Certificate 2A1
Balance of Corresponding
Upper Tier REMIC Regular
Interest
Class LT-2A2 (1) 1/2 initial Class Certificate 2A2
Balance of Corresponding
Upper Tier REMIC Regular
Interest
Class LT-2A3 (1) 1/2 initial Class Certificate 2A3
Balance of Corresponding
Upper Tier REMIC Regular
Interest
Class LT-M-1 (1) 1/2 initial Class Certificate M-1
Balance of Corresponding
Upper Tier REMIC Regular
Interest
Class LT-M-2 (1) 1/2 initial Class Certificate M-2
Balance of Corresponding
Upper Tier REMIC Regular
Interest
Class LT-M-3 (1) 1/2 initial Class Certificate M-3
Balance of Corresponding
Upper Tier REMIC Regular
Interest
Class LT-M-4 (1) 1/2 initial Class Certificate M-4
Balance of Corresponding
Upper Tier REMIC Regular
Interest
Class LT-M-5 (1) 1/2 initial Class Certificate M-5
Balance of Corresponding
Upper Tier REMIC Regular
Interest
Class LT-M-6 (1) 1/2 initial Class Certificate M-6
Balance of Corresponding
Upper Tier REMIC Regular
Interest
Class LT-B-1 (1) 1/2 initial Class Certificate B-1
Balance of Corresponding
Upper Tier REMIC Regular
Interest
Class LT-B-2 (1) 1/2 initial Class Certificate B-2
Balance of Corresponding
Upper Tier REMIC Regular
Interest
Class LT-B-3 (1) 1/2 initial Class Certificate B-3
Balance of Corresponding
Upper Tier REMIC Regular
Interest
Class LT-B-4 (1) 1/2 initial Class Certificate B-4
Balance of Corresponding
Upper Tier REMIC Regular
Interest
Class LT-Accrual (1) 1/2 Pool Stated Principal
Balance plus 1/2
Overcollateralized Amount,
less aggregate initial Lower
Tier Principal Amounts of
Class LT-Group I and
Class LT-Group II Interests
Class LT-Group I (2) 0.001% aggregate Stated
Principal Balance of Group I
Mortgage Loans (5)
Class LT-Group II (3) 0.001% aggregate Stated
Principal Balance of
Group II Mortgage Loans (5)
Class LT-R (4) (4)
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(1) The interest rate with respect to any Distribution Date for
these
interests is a per annum variable rate equal to the WAC Cap.
(2) The interest rate with respect to any Distribution Date for
the Class
LT-Group I Interest is a per annum variable rate (expressed as
a
percentage rounded to eight decimal places) equal to the Loan
Group I Cap.
(3) The interest rate with respect to any Distribution Date for
the Class
LT-Group II Interest is a per annum variable rate (expressed as
a
percentage rounded to eight decimal places) equal to the Loan
Group II
Cap.
(4) The Class LT-R Interest is the sole Class of residual
interest in the
Lower Tier REMIC and it does not have a principal amount or an
interest
rate.
(5) For all Distribution Dates, the Lower Tier Principal Amount
of these Lower
Tier Regular Interests shall be rounded to eight decimal
places.
The Lower Tier REMIC shall hold as assets all of the assets
included
in the definition of "Trust Fund" other than Prepayment
Premiums, the Excess
Reserve Fund Account and the Lower-Tier Regular Interests.
On each Distribution Date, 50% of the increase in the
Overcollateralized Amount will be payable as a reduction of the
Lower Tier
Principal Amount of the LT-Accretion Directed Classes (each such
Class will be
reduced by an amount equal to 50% of any increase in the
Overcollateralized
Amount that is attributable to a reduction in the Class
Certificate Balance of
its Corresponding Class) and will be accrued and added to the
Lower Tier
Principal Amount of the Class LT-Accrual Interest. On each
Distribution Date,
the increase in the Lower Tier Principal Amount of the Class
LT-Accrual Interest
may not exceed interest accruals for such Distribution Date for
the Class
LT-Accrual Interest. In the event that: (i) 50% of the increase
in the
Overcollateralized Amount exceeds (ii) interest accruals on the
Class LT-Accrual
Interest for such Distribution Date, the excess for such
Distribution Date
(accumulated with all such excesses for all prior Distribution
Dates) will be
added to any increase in the Overcollateralized Amount for
purposes of
determining the amount of interest accrual on the Class
LT-Accrual Interest
payable as principal on the LT-Accretion Directed Classes on the
next
Distribution Date pursuant to the first sentence of this
paragraph. All payments
of scheduled principal and prepayments of principal generated by
the Mortgage
Loans shall be allocated (i) 50% to the Class LT-Accrual
Interest, the Class
LT-Group I Interest and Class LT-Group II Interest (and further
allocated among
these Lower Tier Regular Interests in the manner described
below) and (ii) 50%
to the LT-Accretion Directed Classes (principal payments shall
be allocated
among such LT-Accretion Directed Classes in an amount equal to
50% of the
principal amounts allocated to their respective Corresponding
Classes), until
paid in full. Notwithstanding the above, principal payments
allocated to the
Class X Interest that result in the reduction in the
Overcollateralized Amount
shall be allocated to the Class LT-Accrual Interest (until paid
in full).
Realized Losses shall be applied so that after all distributions
have been made
on each Distribution Date (i) the principal balance of each of
the LT-Accretion
Directed Classes is equal to 50% of the Class Certificate
Balance of their
Corresponding Class, and (ii) the Class LT-Accrual Interest, the
Class LT-Group
I Interest and the Class LT-Group II Interest (and further
allocated among these
Lower Tier Regular Interests in the manner described below) is
equal to 50% of
the aggregate Stated Principal Balance of the Mortgage Loans
plus 50% of the
Overcollateralized Amount. As among the Class LT-Accrual
Interest, the Class LT
Group I Interest and the Class LT Group II Interest, all
payments of scheduled
principal and prepayments of principal generated by the Mortgage
Loans, and all
Realized Losses, allocable to such Lower Tier Regular Interests
shall be
allocated (i) to the Class LT-Group I Interest and the Class
LT-Group II
Interest, each from the related Loan Group so that their
respective Lower Tier
Principal Amounts (computed to at least eight decimal places)
are equal to
0.001% of the aggregate Stated Principal Balance of the Mortgage
Loans in the
related Loan Group and (ii) the remainder of such Realized
Losses to the Class
LT-Accrual Interest.
Upper Tier REMIC
The Upper Tier REMIC shall issue the following classes of Upper
Tier
Regular Interests, and each such interest, other than the Class
UT-R Interest,
is hereby designated as a regular interest in the Upper Tier
REMIC.
Upper Tier
Interest Rate Initial Upper Tier
and Principal Amount
Corresponding and Corresponding Corresponding
Upper Tier Class Class Class Certificate Class of
Designation Pass-Through Rate Balance Certificates
---------------- ----------------- -----------------
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Class 1A1 (1) $ 89,370,000 Class 1A1(10)
Class 1A2 (2) $ 9,930,000 Class 1A2(10)
Class 2A1 (3) $188,756,000 Class 2A1(10)
Class 2A2 (4) $ 57,207,000 Class 2A2(10)
Class 2A3 (5) $ 48,160,000 Class 2A3(10)
Class M-1 (6) $ 17,191,000 Class M-1(10)
Class M-2 (6) $ 15,226,000 Class M-2(10)
Class M-3 (6) $ 8,596,000 Class M-3(10)
Class M-4 (6) $ 8,595,000 Class M-4(10)
Class M-5 (6) $ 8,595,000 Class M-5(10)
Class M-6 (6) $ 7,367,000 Class M-6(10)
Class B-1 (6) $ 6,140,000 Class B-1(10)
Class B-2 (6) $ 6,140,000 Class B-2(10)
Class B-3 (6) $ 4,912,000 Class B-3(10)
Class B-4 (7) $ 6,385,000 Class B-4(10)
Class X (8) 0(8) Class X(8)
Class UT-R (9) (9) Class R
(1) The Class 1A1 Interest will bear interest during each
Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first
possible
Optional Termination Date, the least of (i) LIBOR plus 0.270%,
(ii) the
Loan Group I Cap and (iii) the WAC Cap or (b) after the first
possible
Optional Termination Date, the least of (i) LIBOR plus 0.540%,
(ii) the
Loan Group I Cap and (iii) the WAC Cap.
(2) The Class 1A2 Interest will bear interest during each
Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first
possible
Optional Termination Date, the least of (i) LIBOR plus 0.300%,
(ii) the
Loan Group I Cap and (iii) the WAC Cap or (b) after the first
possible
Optional Termination Date, the least of (i) LIBOR plus 0.600%,
(ii) the
Loan Group I Cap and (iii) the WAC Cap.
(3) The Class 2A1 Interest will bear interest during each
Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first
possible
Optional Termination Date, the least of (i) LIBOR plus 0.140%,
(ii) the
Loan Group II Cap and (iii) the WAC Cap or (b) after the first
possible
Optional Termination Date, the least of (i) LIBOR plus 0.280%,
(ii) the
Loan Group II Cap and (iii) the WAC Cap.
(4) The Class 2A2 Interest will bear interest during each
Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first
possible
Optional Termination Date, the least of (i) LIBOR plus 0.230%,
(ii) the
Loan Group II Cap and (iii) the WAC Cap or (b) after the first
possible
Optional Termination Date, the least of (i) LIBOR plus 0.460%,
(ii) the
Loan Group II Cap and (iii) the WAC Cap.
(5) The Class 2A3 Interest will bear interest during each
Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first
possible
Optional Termination Date, the least of (i) LIBOR plus 0.350%,
(ii) the
Loan Group II Cap and (iii) the WAC Cap or (b) after the first
possible
Optional Termination Date, the least of (i) LIBOR plus 0.700%,
(ii) the
Loan Group II Cap and (iii) the WAC Cap.
(6) The Class M-1, Class M-2, Class M-3, Class M-4, Class M-5,
Class M-6,
Class B-1, Class B-2 and Class B-3 Interests will bear interest
during
each Interest Accrual Period at a per annum rate equal to (a) on
or prior
to the first possible Optional Termination Date, the lesser of
(i) LIBOR
plus 0.430%, 0.470%, 0.500%, 0.700%, 0.750%, 0.850%, 1.300%,
1.450% and
2.300%, respectively, and (ii) the WAC Cap or (b) after the
first possible
Optional Termination Date, the lesser of (i) LIBOR plus 0.645%,
0.705%,
0.750%, 1.050%, 1.125%, 1.275%, 1.950%, 2.175% and 3.450%,
respectively,
and (ii) the WAC Cap.
(7) The Class B-4 Interests will bear interest during each
Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first
possible
Optional Termination Date, the lesser of (i) 5.000% and (ii) the
weighted
average of the interest rates for each mortgage loan (in each
case, less
the applicable Expense Fee Rate) then in effect at the beginning
of the
related Due Period on the mortgage loans or (b) after the first
possible
Optional Termination Date, the lesser of (i) 5.500% and (ii) the
weighted
average of the interest rates for each mortgage loan (in each
case, less
the applicable Expense Fee Rate) then in effect at the beginning
of the
related Due Period on the mortgage loans.
(8) The Class X Interest has an initial principal balance of
$8,595,810.64,
but it will not accrue interest on such balance but will accrue
interest
on a notional principal balance. As of any Distribution Date,
the Class X
Interest shall have a notional principal balance equal to the
aggregate of
the principal balances of the Lower Tier Regular Interests as of
the first
day of the related Interest Accrual Period. With respect to any
Interest
Accrual Period, the Class X Interest shall bear interest at a
rate equal
to the excess, if any, of the WAC Cap over the product of (i) 2
and (ii)
the weighted average Lower Tier Interest Rate of the Lower Tier
REMIC
Interests, where the Lower Tier Interest Rates on the Class
LT-Accrual,
Class LT-Group I and Class LT-Group II Interests are subject to
a cap
equal to zero and each LT-Accretion Directed Class is subject to
a cap
equal to the Pass-Through Rate on its Corresponding Class. 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
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 Principal Certificates. Such rights of the Class
X
Certificateholders and Principal Certificateholders shall be
treated as
held in a portion of the Trust Fund that is treated as a grantor
trust
under subpart E, Part I of subchapter J of the Code.
(9) 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.
(10) 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 Principal Certificateholder's right to
receive
payments from the Excess Reserve Fund Account as payments made
pursuant to
an interest rate cap contract written by the Class X
Certificateholders.
The minimum denomination for each Class of Principal
Certificates
will be $25,000, with integral multiples of $1 in excess thereof
except that one
Certificate in each Class may be issued in a different amount.
The minimum
denomination for (a) each of the Class R Certificates will be a
100% Percentage
Interest in such Class, (b) each of the Class P Certificates
will be 1%
Percentage Interest and (c) the Class X Certificates will be a
1% Percentage
Interest in such Class.
Set forth below are designations of Classes of Certificates to
the
categories used herein:
Book-Entry Certificates...... All Classes of Certificates other
than the
Physical Certificates.
Class A Certificates......... Class 1A1, Class 1A2, Class 2A1,
Class 2A2 and
Class 2A3 Certificates.
Delay Certificates........... The Fixed Rate Certificates.
ERISA-Restricted
Certificates............... Class R, Class P and Class X
Certificates; any
Certificate with a rating below the lowest
applicable permitted rating under the
Underwriters' Exemption.
Fixed Rate Certificates...... Class B-4 Certificates.
LIBOR Certificates........... All Classes of Certificates other
than the Private
Certificates.
Non-Delay Certificates....... Offered Certificates.
Offered Certificates......... All Classes of Certificates other
than the Private
Certificates.
Physical Certificates........ Class X, Class P and Class R
Certificates.
Principal Certificates....... The LIBOR Certificates and the
Fixed Rate
Certificates.
Private Certificates......... Class B-4, Class X, Class P and
Class R
Certificates.
Rating Agencies.............. Standard & Poor's and
Moody's.
Regular Certificates......... All Classes of Certificates other
than the Class R
and Class P Certificates.
Residual Certificates........ Class R Certificates.
Subordinated Certificates.... Class M-1, Class M-2, Class M-3,
Class M-4, Class
M-5, Class M-6, Class B-1, Class B-2, Class B-3
and Class B-4 Certificates.
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Whenever used in this Agreement,
the
following words and phrases, unless the context otherwise
requires, shall have
the following meanings:
Accepted Servicing Practices: With respect to any Mortgage
Loan,
those mortgage servicing practices set forth in Section 3.01(a)
of this
Agreement.
Account: Any of the Collection Account, the Distribution
Account,
any Escrow Account or the Excess Reserve Fund Account. Each
Account shall be an
Eligible Account.
Accrued Certificate Interest Distribution Amount: With respect
to
any Distribution Date for each Class of the Principal
Certificates, the amount
of interest accrued during the related Interest Accrual Period
at the applicable
Pass-Through Rate on the related Class Certificate Balance
immediately prior to
such Distribution Date, as reduced by such Class's share of Net
Prepayment
Interest Shortfalls and Relief Act Interest Shortfalls for such
Distribution
Date allocated to such Class pursuant to Section 4.02.
Adjusted Net Mortgage Interest Rate: As to each Mortgage Loan
and at
any time, the per annum rate equal to the Mortgage Interest Rate
less the
Expense Fee Rate.
Adjustment Date: As to any Mortgage Loan, the first Due Date
on
which the related Mortgage Interest Rate adjusts as set forth in
the related
Mortgage Note and each Due Date thereafter on which the Mortgage
Interest Rate
adjusts as set forth in the related Mortgage Note.
Advance: Any P&I Advance or Servicing Advance.
Advance Facility: A financing or other facility as described
in
Section 10.07.
Advance Reimbursement Amounts: As defined in Section 10.07.
Advancing Person: The Person to whom the Servicer's rights
under
this Agreement to be reimbursed for any P&I Advances or
Servicing Advances have
been assigned pursuant to Section 10.07.
Affiliate: With respect to any Person, any other Person
controlling,
controlled by or under common control with such first Person.
For the purposes
of this definition, "control" means the power to direct the
management and
policies of such Person, directly or indirectly, whether through
the ownership
of voting securities, by contract or otherwise; and the terms
"controlling" and
"controlled" have meanings correlative to the foregoing.
Agreement: This Pooling and Servicing Agreement and all
amendments
or supplements hereto.
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
Principal Certificates after distributions of principal on such
Distribution
Date exceeds the aggregate Stated Principal Balance of the
Mortgage Loans for
such Distribution Date.
Appraised Value: With respect to any Mortgage Loan, the value of
the
related Mortgaged Property based upon either the appraisal made
or Insured AVM,
if any, for the originator at the time of origination of the
Mortgage Loan or
the sales price of the Mortgaged Property at such time of
origination, whichever
is less; provided, however, that in the case of a refinanced
Mortgage Loan, such
value is based solely upon the appraisal made or the Insured AVM
supplied, if
any, at the time of origination of such refinanced Mortgage
Loan.
Assignment of Mortgage: An assignment of the Mortgage, notice
of
transfer or equivalent instrument in recordable form (other than
the assignee's
name and recording information not yet returned from the
recording office),
reflecting the sale of the Mortgage to the Trustee.
Available Funds: With respect to any Distribution Date and
the
Mortgage Loans to the extent received by the Trustee (x) the sum
of (i) all
scheduled installments of interest (net of the related Expense
Fees) and
principal due on the Due Date on such Mortgage Loans in the
related Due Period
and received on or prior to the related Determination Date,
together with any
P&I Advances in respect thereof; (ii) all Condemnation
Proceeds, Insurance
Proceeds and Liquidation Proceeds received during the related
Prepayment Period
(in each case, net of unreimbursed expenses incurred in
connection with a
liquidation or foreclosure and unreimbursed Advances, if any);
(iii) all partial
or full prepayments on the Mortgage Loans (excluding Prepayment
Premiums)
received during the related Prepayment Period together with all
Compensating
Interest paid by the Servicer in connection therewith; (iv)
amounts received
with respect to such Distribution Date as the Substitution
Adjustment Amount or
as the purchase price in respect of a Deleted Mortgage Loan or a
Mortgage Loan
repurchased by the Responsible Party or the Depositor as of such
Distribution
Date; and (v) the proceeds received with respect to the
termination of the Trust
Fund pursuant to clause (a) of Section 9.01, reduced by (y)
amounts in
reimbursement for P&I Advances and Servicing Advances
previously made with
respect to the Mortgage Loans and other amounts as to which the
Servicer, the
Depositor or the Trustee (or co-trustee) are entitled to be paid
or reimbursed
pursuant to this Agreement.
Balloon Loan: Any Mortgage Loan that provided on the date of
origination for an amortization schedule extending beyond its
stated maturity
date.
Basic Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the Principal Remittance
Amount for such
Distribution Date over (ii) the Excess Overcollateralized
Amount, if any, for
such Distribution Date.
Basis Risk Carry Forward Amount: With respect to each Class
of
Principal Certificates, as of any Distribution Date, the sum of
(A) if on such
Distribution Date the Pass-Through Rate for any Class of
Principal Certificates
is based upon a Loan Group Cap or the WAC Cap, as applicable,
the excess of (i)
the amount of interest such Class of Principal 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, in the
case of the
LIBOR Certificates, or at the applicable Fixed Rate, in the case
of the Fixed
Rate Certificates for such Class of Certificates for such
Distribution Date,
over (ii) the amount of interest payable on such Class of
Certificates with
respect to the Class A-1 Certificates, the lesser of the Loan
Group I Cap or the
WAC Cap, and with respect to the Class A-2 Certificates, the
lesser of the Loan
Group II Cap or the WAC Cap, and (B) the Basis Risk Carry
Forward Amount for
such Class of Certificates for all previous Distribution Dates
not previously
paid, together with interest thereon at a rate equal to the sum
of LIBOR and the
applicable Pass-Through Margin, in the case of the LIBOR
Certificates, or at the
applicable Fixed Rate, in the case of the Fixed Rate
Certificates for such Class
of Certificates for such Distribution Date.
Basis Risk Payment: For any Distribution Date, an amount equal
to
the lesser of (i) the aggregate of the Basis Risk Carry Forward
Amounts for such
Distribution Date and (ii) the Class X Distributable Amount
(prior to any
reduction for Basis Risk Payments).
Best's: Best's Key Rating Guide, as the same shall be amended
from
time to time.
Book-Entry Certificates: As specified in the Preliminary
Statement.
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 or California, (b) the State in which the Servicer's
servicing operations
are located, or (c) the State in which the Trustee's operations
are located, are
authorized or obligated by law or executive order to be
closed.
Certificate: Any one of the Certificates executed by the Trustee
in
substantially the forms attached hereto as exhibits.
Certificate Balance: With respect to any Class of
Certificates,
other than the Class P, Class X or Class R Certificates, at any
date, the
maximum dollar amount of principal to which the Holder thereof
is then entitled
hereunder, such amount being equal to the Denomination thereof
minus all
distributions of principal previously made with respect thereto
and in the case
of any Subordinated Certificates, reduced by any Applied
Realized Loss Amounts
applicable to such Class of Certificates; provided, however,
that immediately
following the Distribution Date on which a Subsequent Recovery
is distributed,
the Class Certificate Balances of any Class or Classes of
Certificates that have
been previously reduced by Applied Realized Loss Amounts will be
increased, in
order of seniority, by the amount of the Subsequent Recovery
distributed on such
Distribution Date (up to the amount of Applied Realized Loss
Amounts allocated
to such Class or Classes). The Class P, Class X and Class R
Certificates have no
Certificate Balance.
Certificate Owner: With respect to a Book-Entry Certificate,
the
Person who is the beneficial owner of such Book-Entry
Certificate.
Certificate Register: The register maintained pursuant to
Section
5.02.
Certificateholder or Holder: The Person in whose name a
Certificate
is registered in the Certificate Register, except that, solely
for the purpose
of giving any consent pursuant to this Agreement, any
Certificate registered in
the name of the Depositor or any affiliate of the Depositor
shall be deemed not
to be Outstanding and the Percentage Interest evidenced thereby
shall not be
taken into account in determining whether the requisite amount
of Percentage
Interests necessary to effect such consent has been obtained;
provided, however,
that if any such Person (including the Depositor) owns 100% of
the Percentage
Interests evidenced by a Class of Certificates, such
Certificates shall be
deemed to be Outstanding for purposes of any provision hereof
that requires the
consent of the Holders of Certificates of a particular Class as
a condition to
the taking of any action hereunder. The Trustee is entitled to
rely conclusively
on a certification of the Depositor or any affiliate of the
Depositor in
determining which Certificates are registered in the name of an
affiliate of the
Depositor.
Certification: As defined in Section 8.12(b).
Class: All Certificates bearing the same class designation as
set
forth in the Preliminary Statement.
Class A Certificate Group: Either the Class A-1 Certificates or
the
Class A-2 Certificates.
Class A Certificates: The Class A-1 Certificates and the Class
A-2
Certificates.
Class A Principal Allocation Percentage: For any Distribution
Date,
the percentage equivalent of a fraction, determined as follows:
(A) with respect
to the Class A-1 Certificates, a fraction, the numerator of
which is the portion
of the Principal Remittance Amount for such Distribution Date
that is
attributable to the principal received or advanced on the Group
I Mortgage Loans
and the denominator of which is the Principal Remittance Amount
for such
Distribution Date; and (B) with respect to the Class A-2
Certificates, a
fraction, the numerator of which is the portion of the Principal
Remittance
Amount for such Distribution Date that is attributable to the
principal received
or advanced on the Group II Mortgage Loans and the denominator
of which is the
Principal Remittance Amount for such Distribution Date.
Class A Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the aggregate Class
Certificate Balances of
the Class A Certificates immediately prior to such Distribution
Date over (ii)
the lesser of (A) 60.20% (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: The Class 1A1 and Class 1A2
Certificates,
collectively.
Class 1A1 Certificates: All Certificates bearing the class
designation of "Class 1A1."
Class 1A2 Certificates: All Certificates bearing the class
designation of "Class 1A2."
Class A-2 Certificates: The Class 2A1, Class 2A2 and Class
2A3
Certificates, collectively.
Class 2A1 Certificates: All Certificates bearing the class
designation of "Class 2A1."
Class 2A2 Certificates: All Certificates bearing the class
designation of "Class 2A2."
Class 2A3 Certificates: All Certificates bearing the class
designation of "Class 2A3."
Class B Certificates: The Class B-1, Class B-2, Class B-3 and
Class
B-4 Certificates.
Class B-1 Certificates: All Certificates bearing the class
designation of "Class B-1."
Class B-1 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the
aggregate Class
Certificate Balances of the Class A Certificates (after taking
into account the
distribution of the Class A Principal Distribution Amount on
such Distribution
Date), (B) the Class Certificate Balance of the Class M-1
Certificates (after
taking into account the distribution of the Class M-1 Principal
Distribution
Amount on such Distribution Date), (C) the Class Certificate
Balance of the
Class M-2 Certificates (after taking into account the
distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date),
(D) the Class
Certificate Balance of the Class M-3 Certificates (after taking
into account the
distribution of the Class M-3 Principal Distribution Amount on
such Distribution
Date), (E) the Class Certificate Balance of the Class M-4
Certificates (after
taking into account the distribution of the Class M-4 Principal
Distribution
Amount on such Distribution Date), (F) the Class Certificate
Balance of the
Class M-5 Certificates (after taking into account the
distribution of the Class
M-5 Principal Distribution Amount on such Distribution Date),
(G) the Class
Certificate Balance of the Class M-6 Certificates (after taking
into account the
distribution of the Class M-6 Principal Distribution Amount on
such Distribution
Date) and (H) the Class Certificate Balance of the Class B-1
Certificates
immediately prior to such Distribution Date over (ii) the lesser
of (A) 89.40%
(rounded to two decimal places) of the aggregate Stated
Principal Balance of the
Mortgage Loans for such Distribution Date and (B) the excess, if
any, of the
aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution
Date over the Overcollateralization Floor.
Class B-2 Certificates: All Certificates bearing the class
designation of "Class B-2."
Class B-2 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the
aggregate Class
Certificate Balances of the Class A Certificates (after taking
into account the
distribution of the Class A Principal Distribution Amount on
such Distribution
Date), (B) the Class Certificate Balance of the Class M-1
Certificates (after
taking into account the distribution of the Class M-1 Principal
Distribution
Amount on such Distribution Date), (C) the Class Certificate
Balance of the
Class M-2 Certificates (after taking into account the
distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date),
(D) the Class
Certificate Balance of the Class M-3 Certificates (after taking
into account the
distribution of the Class M-3 Principal Distribution Amount on
such Distribution
Date), (E) the Class Certificate Balance of the Class M-4
Certificates (after
taking into account the distribution of the Class M-4 Principal
Distribution
Amount on such Distribution Date), (F) the Class Certificate
Balance of the
Class M-5 Certificates (after taking into account the
distribution of the Class
M-5 Principal Distribution Amount on such Distribution Date),
(G) the Class
Certificate Balance of the Class M-6 Certificates (after taking
into account the
distribution of the Class M-6 Principal Distribution Amount on
such Distribution
Date), (H) the Class Certificate Balance of the Class B-1
Certificates (after
taking into account the distribution of the Class B-1 Principal
Distribution
Amount on such Distribution Date) and (I) the Class Certificate
Balance of the
Class B-2 Certificates immediately prior to such Distribution
Date over (ii) the
lesser of (A) 91.90% (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-3 Certificates: All Certificates bearing the class
designation of "Class B-3."
Class B-3 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the
aggregate Class
Certificate Balances of the Class A Certificates (after taking
into account the
distribution of the Class A Principal Distribution Amount on
such Distribution
Date), (B) the Class Certificate Balance of the Class M-1
Certificates (after
taking into account the distribution of the Class M-1 Principal
Distribution
Amount on such Distribution Date), (C) the Class Certificate
Balance of the
Class M-2 Certificates (after taking into account the
distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date),
(D) the Class
Certificate Balance of the Class M-3 Certificates (after taking
into account the
distribution of the Class M-3 Principal Distribution Amount on
such Distribution
Date), (E) the Class Certificate Balance of the Class M-4
Certificates (after
taking into account the distribution of the Class M-4 Principal
Distribution
Amount on such Distribution Date), (F) the Class Certificate
Balance of the
Class M-5 Certificates (after taking into account the
distribution of the Class
M-5 Principal Distribution Amount on such Distribution Date),
(G) the Class
Certificate Balance of the Class M-6 Certificates (after taking
into account the
distribution of the Class M-6 Principal Distribution Amount on
such Distribution
Date), (H) the Class Certificate Balance of the Class B-1
Certificates (after
taking into account the distribution of the Class B-1 Principal
Distribution
Amount on such Distribution Date), (I) the Class Certificate
Balance of the
Class B-2 Certificates (after taking into account the
distribution of the Class
B-2 Principal Distribution Amount on such Distribution Date) and
(J) the Class
Certificate Balance of the Class B-3 Certificates immediately
prior to such
Distribution Date over (ii) the lesser of (A) 93.90% (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-4 Certificates: All Certificates bearing the class
designation of "Class B-4."
Class B-4 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the
aggregate Class
Certificate Balances of the Class A Certificates (after taking
into account the
distribution of the Class A Principal Distribution Amount on
such Distribution
Date), (B) the Class Certificate Balance of the Class M-1
Certificates (after
taking into account the distribution of the Class M-1 Principal
Distribution
Amount on such Distribution Date), (C) the Class Certificate
Balance of the
Class M-2 Certificates (after taking into account the
distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date),
(D) the Class
Certificate Balance of the Class M-3 Certificates (after taking
into account the
distribution of the Class M-3 Principal Distribution Amount on
such Distribution
Date), (E) the Class Certificate Balance of the Class M-4
Certificates (after
taking into account the distribution of the Class M-4 Principal
Distribution
Amount on such Distribution Date), (F) the Class Certificate
Balance of the
Class M-5 Certificates (after taking into account the
distribution of the Class
M-5 Principal Distribution Amount on such Distribution Date),
(G) the Class
Certificate Balance of the Class M-6 Certificates (after taking
into account the
distribution of the Class M-6 Principal Distribution Amount on
such Distribution
Date), (H) the Class Certificate Balance of the Class B-1
Certificates (after
taking into account the distribution of the Class B-1 Principal
Distribution
Amount on such Distribution Date), (I) the Class Certificate
Balance of the
Class B-2 Certificates (after taking into account the
distribution of the Class
B-2 Principal Distribution Amount on such Distribution Date),
(J) the Class
Certificate Balance of the Class B-3 Certificates (after taking
into account the
distribution of the Class B-3 Principal Distribution Amount on
such Distribution
Date) and (K) the Class Certificate Balance of the Class B-4
Certificates
immediately prior to such Distribution Date over (ii) the lesser
of (A) 96.50%
(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 Certificate Balance: With respect to any Class and as to
any
date of determination, the aggregate of the Certificate Balances
of all
Certificates of such Class as of such date.
Class LT-R Interest: The residual interest in the Lower Tier
REMIC
as described in the Preliminary Statement and the related
footnote thereto.
Class M Certificates: The Class M-1, Class M-2, Class M-3,
Class
M-4, Class M-5 and Class M-6 Certificates.
Class M-1 Certificates: All Certificates bearing the class
designation of "Class M-1."
Class M-1 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the
aggregate Class
Certificate Balances of the Class A Certificates (after taking
into account the
distribution of the Class A Principal Distribution Amount on
such Distribution
Date), and (B) the Class Certificate Balance of the Class M-1
Certificates
immediately prior to such Distribution Date over (ii) the lesser
of (A) 67.20%
(rounded to two decimal places) of the aggregate Stated
Principal Balance of the
Mortgage Loans for such Distribution Date and (B) the excess, if
any, of the
aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution
Date over the Overcollateralization Floor.
Class M-2 Certificates: All Certificates bearing the class
designation of "Class M-2."
Class M-2 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the
aggregate Class
Certificate Balances of the Class A Certificates (after taking
into account the
distribution of the Class A Principal Distribution Amount on
such Distribution
Date), (B) the Class Certificate Balance of the Class M-1
Certificates (after
taking into account the distribution of the Class M-1 Principal
Distribution
Amount on such Distribution Date) and (C) the Class Certificate
Balance of the
Class M-2 Certificates immediately prior to such Distribution
Date over (ii) the
lesser of (A) 73.40% (rounded to two decimal places) of the
aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution
Date and (B) the
excess, if any, of the aggregate Stated Principal Balance of the
Mortgage Loans
for such Distribution Date over the Overcollateralization
Floor.
Class M-3 Certificates: All Certificates bearing the class
designation of "Class M-3."
Class M-3 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the
aggregate Class
Certificate Balances of the Class A Certificates (after taking
into account the
distribution of the Class A Principal Distribution Amount on
such Distribution
Date), (B) the Class Certificate Balance of the Class M-1
Certificates (after
taking into account the distribution of the Class M-1 Principal
Distribution
Amount on such Distribution Date), (C) the Class Certificate
Balance of the
Class M-2 Certificates (after taking into account the
distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date) and
(D) the Class
Certificate Balance of the Class M-3 Certificates immediately
prior to such
Distribution Date over (ii) the lesser of (A) 76.90% (rounded to
two decimal
places) of the aggregate Stated Principal Balance of the
Mortgage Loans for such
Distribution Date and (B) the excess, if any, of the aggregate
Stated Principal
Balance of the Mortgage Loans for such Distribution Date over
the
Overcollateralization Floor.
Class M-4 Certificates: All Certificates bearing the class
designation of "Class M-4."
Class M-4 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the
aggregate Class
Certificate Balances of the Class A Certificates (after taking
into account the
distribution of the Class A Principal Distribution Amount on
such Distribution
Date), (B) the Class Certificate Balance of the Class M-1
Certificates (after
taking into account the distribution of the Class M-1 Principal
Distribution
Amount on such Distribution Date), (C) the Class Certificate
Balance of the
Class M-2 Certificates (after taking into account the
distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date),
(D) the Class
Certificate Balance of the Class M-3 Certificates (after taking
into account the
distribution of the Class M-3 Principal Distribution Amount on
such Distribution
Date) and (E) the Class Certificate Balance of the Class M-4
Certificates
immediately prior to such Distribution Date over (ii) the lesser
of (A) 80.40%
(rounded to two decimal places) of the aggregate Stated
Principal Balance of the
Mortgage Loans for such Distribution Date and (B) the excess, if
any, of the
aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution
Date over the Overcollateralization Floor.
Class M-5 Certificates: All Certificates bearing the class
designation of "Class M-5."
Class M-5 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the
aggregate Class
Certificate Balances of the Class A Certificates (after taking
into account the
distribution of the Class A Principal Distribution Amount on
such Distribution
Date), (B) the Class Certificate Balance of the Class M-1
Certificates (after
taking into account the distribution of the Class M-1 Principal
Distribution
Amount on such Distribution Date), (C) the Class Certificate
Balance of the
Class M-2 Certificates (after taking into account the
distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date),
(D) the Class
Certificate Balance of the Class M-3 Certificates (after taking
into account the
distribution of the Class M-3 Principal Distribution Amount on
such Distribution
Date), (E) the Class Certificate Balance of the Class M-4
Certificates (after
taking into account the distribution of the Class M-4 Principal
Distribution
Amount on such Distribution Date) and (F) the Class Certificate
Balance of the
Class M-5 Certificates immediately prior to such Distribution
Date over (ii) the
lesser of (A) 83.90% (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-6 Certificates: All Certificates bearing the class
designation of "Class M-6."
Class M-6 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the
aggregate Class
Certificate Balances of the Class A Certificates (after taking
into account the
distribution of the Class A Principal Distribution Amount on
such Distribution
Date), (B) the Class Certificate Balance of the Class M-1
Certificates (after
taking into account the distribution of the Class M-1 Principal
Distribution
Amount on such Distribution Date), (C) the Class Certificate
Balance of the
Class M-2 Certificates (after taking into account the
distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date),
(D) the Class
Certificate Balance of the Class M-3 Certificates (after taking
into account the
distribution of the Class M-3 Principal Distribution Amount on
such Distribution
Date), (E) the Class Certificate Balance of the Class M-4
Certificates (after
taking into account the distribution of the Class M-4 Principal
Distribution
Amount on such Distribution Date), (F) the Class Certificate
Balance of the
Class M-5 Certificates (after taking into account the
distribution of the Class
M-5 Principal Distribution Amount on such Distribution Date) and
(G) the Class
Certificate Balance of the Class M-6 Certificates immediately
prior to such
Distribution Date over (ii) the lesser of (A) 86.90% (rounded to
two decimal
places) of the aggregate Stated Principal Balance of the
Mortgage Loans for such
Distribution Date and (B) the excess, if any, of the aggregate
Stated Principal
Balance of the Mortgage Loans for such Distribution Date over
the
Overcollateralization Floor.
Class P Certificates: All Certificates bearing the class
designation
of "Class P."
Class R Certificates: All Certificates bearing the class
designation
of "Class R."
Class UT-R Interest: The residual interest in the Upper Tier
REMIC
as described in the Preliminary Statement and the related
footnote thereto.
Class X Certificates: All Certificates bearing the class
designation
of "Class X."
Class X Distributable Amount: On any Distribution Date, (i) as
a
distribution in respect of interest, the amount of interest that
has accrued on
the Class X Interest and not applied as an Extra Principal
Distribution Amount
on such Distribution Date, plus any such accrued interest
remaining
undistributed from prior Distribution Dates, plus, without
duplication, (ii) as
a distribution in respect of principal, any portion of the
principal balance of
the Class X Interest which is distributable as an
Overcollateralization
Reduction Amount, minus (iii) any amounts paid as a Basis Risk
Payment.
Class X Interest: The Upper Tier Regular Interest represented by
the
Class X Certificates as specified and described in the
Preliminary Statement and
the related footnote thereto.
Closing Date: January 28, 2005.
Code: The Internal Revenue Code of 1986, including any successor
or
amendatory provisions.
Collection Account: As defined in Section 3.10(a).
Compensating Interest: For any Distribution Date, the lesser of
(a)
the Prepayment Interest Shortfall, if any, for such Distribution
Date, with
respect to voluntary Principal Prepayments in Full by the
Mortgagor (excluding
any payments made upon liquidation of the Mortgage Loan), and
(b) the Servicing
Fee payable to the Servicer for such Distribution Date.
Condemnation Proceeds: All awards, compensation and/or
settlements
in respect of a Mortgaged Property, whether permanent or
temporary, partial or
entire, by exercise of the power of eminent domain or
condemnation.
Corporate Trust Office: The designated office of the Trustee in
the
State of California at which at any particular time its
corporate trust business
with respect to this Agreement is administered, which office at
the date of the
execution of this Agreement is located at 1761 East St. Andrew
Place Santa Ana,
California 92705-4934, Attn: Trust Administration-GS0502,
facsimile no. (714)
247-6478, and which is the address to which notices to and
correspondence with
the Trustee should be directed.
Corresponding Class: The class of interests in one Trust
REMIC
created under this Agreement that corresponds to the class of
interests in the
other Trust REMIC or to a Class of Certificates in the manner
set out below:
Corresponding
Lower Tier Upper Tier Certificates or
Class Designation Regular Interest Regular Interest
----------------- ---------------- ----------------
Class LT-1A1 Class 1A1 Class 1A1
Class LT-1A2 Class 1A2 Class 1A2
Class LT-2A1 Class 2A1 Class 2A1
Class LT-2A2 Class 2A2 Class 2A2
Class LT-2A3 Class 2A3 Class 2A3
Class LT-M-1 Class M-1 Class M-1
Class LT-M-2 Class M-2 Class M-2
Class LT-M-3 Class M-3 Class M-3
Class LT-M-4 Class M-4 Class M-4
Class LT-M-5 Class M-5 Class M-5
Class LT-M-6 Class M-6 Class M-6
Class LT-B-1 Class B-1 Class B-1
Class LT-B-2 Class B-2 Class B-2
Class LT-B-3 Class B-3 Class B-3
Class LT-B-4 Class B-4 Class B-4
N/A Class X Class X
Countrywide Servicing: Countrywide Home Loans Servicing LP, a
Texas
limited partnership, and its successors in interest.
Covered Loan: A Mortgage Loan categorized as Covered pursuant
to
Appendix E of Standard & Poor's Glossary.
Cumulative Loss Percentage: With respect to any Distribution
Date,
the percentage equivalent of a fraction, the numerator of which
is the aggregate
amount of Realized Losses incurred from the Cut-off Date to the
last day of the
calendar month preceding the month in which such Distribution
Date occurs and
the denominator of which is the Cut-off Date Pool Principal
Balance of the
Mortgage Loans.
Custodial File: With respect to each Mortgage Loan, any
Mortgage
Loan Document which is delivered to the Trustee or which at any
time comes into
the possession of the Trustee.
Cut-off Date: January 1, 2005.
Cut-off Date Pool Principal Balance: The aggregate Stated
Principal
Balances of all Mortgage Loans as of the Cut-off Date.
Cut-off Date Principal Balance: As to any Mortgage Loan, the
Stated
Principal Balance thereof as of the close of business on the
Cut-off Date (after
giving effect to payments of principal due on that date, whether
or not
received).
Data File: As defined in Section 4.03(e).
Data File Delivery Date: As defined in Section 4.03(e).
Data Tape Information: The information provided by the
Responsible
Party as of the Cut-off Date to the Depositor setting forth the
following
information with respect to each Mortgage Loan: (1) the
Responsible Party's
Mortgage Loan identifying number; (2) the Mortgagor's name; (3)
the street
address of the Mortgaged Property including the city, state and
zip code; (4) a
code indicating whether the Mortgaged Property is
owner-occupied, a second home
or investment property; (5) the number and type of residential
units
constituting the Mortgaged Property (i.e., a single family
residence, a 2-4
family residence, a unit in a condominium project or a unit in a
planned unit
development, manufactured housing); (6) the original months to
maturity or the
remaining months to maturity from the Cut-off Date, in any case
based on the
original amortization schedule and, if different, the maturity
expressed in the
same manner but based on the actual amortization schedule; (7)
the Loan-to-Value
Ratio; (8) the Mortgage Interest Rate as of the Cut-off Date;
(9) the date on
which the Scheduled Payment was due on the Mortgage Loan and, if
such date is
not consistent with the Due Date currently in effect, such Due
Date; (10) the
stated maturity date; (11) the amount of the Scheduled Payment
as of the Cut-off
Date; (12) the last payment date on which a Scheduled Payment
was actually
applied to pay interest and the outstanding principal balance;
(13) the original
principal amount of the Mortgage Loan; (14) the principal
balance of the
Mortgage Loan as of the close of business on the Cut-off Date,
after deduction
of payments of principal due and collected on or before the
Cut-off Date; (15)
the Adjustment Date; (16) the Gross Margin; (17) the Lifetime
Rate Cap under the
terms of the Mortgage Note; (18) a code indicating the type of
Index; (19) the
Periodic Mortgage Interest Rate Cap under the terms of the
Mortgage Note; (20)
the Periodic Mortgage Interest Rate Floor under the terms of the
Mortgage Note;
(21) the type of Mortgage Loan (i.e., fixed rate, adjustable
rate, first lien,
second lien); (22) a code indicating the purpose of the loan
(i.e., purchase,
rate and term refinance, equity take-out refinance); (23) a code
indicating the
documentation style (i.e., full documentation, limited
documentation or stated
income); (24) the loan credit classification (as described in
the Underwriting
Guidelines); (25) whether such Mortgage Loan provides for a
Prepayment Premium;
(26) the Prepayment Premium period of such Mortgage Loan, if
applicable; (27) a
description of the Prepayment Premium, if applicable; (28) the
Mortgage Interest
Rate as of origination; (29) the credit risk score (FICO score)
at origination;
(30) the Cut-Off Date; (31) the date of the purchase of the
Mortgage Loan; (32)
a code indicating whether the Mortgage is a Balloon Loan; (33) a
code indicating
whether the Mortgage Loan is assumable; (34) the date of
origination; (35) the
Mortgage Interest Rate adjustment period; (36) the Mortgage
Interest Rate
adjustment percentage; (37) the Mortgage Interest Rate floor;
(38) the Mortgage
Interest Rate calculation method (i.e., 30/360, simple interest,
other); (39) a
code indicating whether the Mortgage Loan has been modified;
(40) the one year
payment history; (41) the Due Date for the first Scheduled
Payment; (42) the
original Scheduled Payment due; (43) with respect to the related
Mortgagor, the
debt-to-income ratio; (44) the Appraised Value of the Mortgaged
Property; (45)
the sales price of the Mortgaged Property if the Mortgage Loan
was originated in
connection with the purchase of the Mortgaged Property; (46)
S&P doc type code;
(47) S&P appraisal type code; (48) escrow holdbacks, if any,
and (49) total
points and fees paid by Mortgagor. With respect to the Mortgage
Loans in the
aggregate: (1) the number of Mortgage Loans; (2) the current
aggregate
outstanding principal balance of the Mortgage Loans; (3) the
weighted average
Mortgage Interest Rate of the Mortgage Loans; and (4) the
weighted average
maturity of the Mortgage Loans.
Debt Service Reduction: With respect to any Mortgage Loan, a
reduction by a court of competent jurisdiction in a proceeding
under the United
States Bankruptcy Code in the Scheduled Payment for such
Mortgage Loan which
became final and non-appealable, except for such a reduction
resulting from a
Deficient Valuation or any reduction that results in a permanent
forgiveness of
principal.
Deficient Valuation: With respect to any Mortgage Loan, a
valuation
of the related Mortgaged Property by a court of competent
jurisdiction in an
amount less than the then outstanding principal balance of the
Mortgage Loan,
which valuation results from a proceeding initiated under the
United States
Bankruptcy Code.
Definitive Certificates: Any Certificate evidenced by a
Physical
Certificate and any Certificate issued in lieu of a Book-Entry
Certificate
pursuant to Section 5.02(e).
Delay Certificates: As specified in the Preliminary
Statement.
Deleted Mortgage Loan: As defined in Section 2.03(d).
Denomination: With respect to each Certificate, the amount set
forth
on the face thereof as the "Initial Certificate Balance of this
Certificate" or
the Percentage Interest appearing on the face thereof.
Depositor: GS Mortgage Securities Corp., a Delaware corporation,
and
its successors in interest.
Depository: The initial Depository shall be The Depository
Trust
Company, the nominee of which is CEDE & Co., as the
registered Holder of the
Book-Entry Certificates. The Depository shall at all times be a
"clearing
corporation" as defined in Section 8-102(a)(5) of the Uniform
Commercial Code of
the State of New York.
Depository Institution: Any depository institution or trust
company,
including the Trustee, that (a) is incorporated under the laws
of the United
States of America or any State thereof, (b) is subject to
supervision and
examination by federal or state banking authorities and (c) has
outstanding
unsecured commercial paper or other short-term unsecured debt
obligations that
are rated P-1 by Moody's, A-1 by Standard & Poor's and F1+
by Fitch (in each
case, to the extent they are designated as Rating Agencies in
the Preliminary
Statement).
Depository Participant: A broker, dealer, bank or other
financial
institution or other Person for whom from time to time a
Depository effects
book-entry transfers and pledges of securities deposited with
the Depository.
Determination Date: With respect to each Distribution Date, the
18th
day of the calendar month in which such Distribution Date
occurs, or if such day
is not a Business Day, the immediately preceding Business
Day.
Distribution Account: The separate Eligible Account created
and
maintained by the Trustee pursuant to Section 3.27(b) in the
name of the Trustee
for the benefit of the Certificateholders and designated
"Deutsche Bank National
Trust Company in trust for registered holders of GSAA Home
Equity Trust 2005-2
Asset-Backed Certificates, Series 2005-2." 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 February 2005.
Document Certification and Exception Report: The report attached
to
Exhibit F hereto.
Due Date: The day of the month on which the Scheduled Payment is
due
on a Mortgage Loan, exclusive of any days of grace.
Due Period: With respect to any Distribution Date, the
period
commencing on the second day of the calendar month preceding the
month in which
the Distribution Date occurs and ending on the first day of the
calendar month
in which the Distribution Date occurs.
Eligible Account: Either (i) an account maintained with a
federal or
state chartered depository institution or trust company the
short-term unsecured
debt obligations of which (or, in the case of a depository
institution or trust
company that is a subsidiary of a holding company, the
short-term unsecured debt
obligations of such holding company) are rated "A-1" by Standard
& Poor's, "F-1"
by Fitch and "P-1" by Moody's (in each case, to the extent they
are designated
as Rating Agencies in the Preliminary Statement) (and a
comparable rating if
another Rating Agency is specified by the Depositor by written
notice to the
Servicer) at the time any amounts are held on deposit therein,
(ii) a trust
account or accounts maintained with a federal or state chartered
depository
institution or trust company acting in its fiduciary capacity or
(iii) any other
account acceptable to each Rating Agency. Eligible Accounts may
bear interest,
and may include, if otherwise qualified under this definition,
accounts
maintained with the Trustee.
ERISA: The Employee Retirement Income Security Act of 1974,
as
amended.
ERISA-Qualifying Underwriting: A best efforts or firm
commitment
underwriting or private placement that meets the requirements of
Prohibited
Transaction Exemption ("PTE") 2002-41, 67 Fed. Reg. 54487 (2002)
(or any
successor thereto), or any substantially similar administrative
exemption
granted by the U.S. Department of Labor.
ERISA-Restricted Certificate: As specified in the
Preliminary
Statement.
Escrow Account: The Eligible Account or Accounts established
and
maintained pursuant to Section 3.09(b).
Escrow Payments: As defined in Section 3.09(b) of this
Agreement.
Event of Default: As defined in Section 7.01.
Excess Overcollateralized Amount: With respect to any
Distribution
Date, the excess, if any, of (a) the Overcollateralized Amount
on such
Distribution Date over (b) the Specified Overcollateralized
Amount for such
Distribution Date.
Excess Reserve Fund Account: The separate Eligible Account
created
and maintained by the Trustee pursuant to Sections 3.27(a) in
the name of the
Trustee for the benefit of the Regular Certificateholders and
designated
"Deutsche Bank National Trust Company in trust for registered
holders of GSAA
Home Equity Trust 2005-2, Asset-Backed Certificates, Series
2005-2." 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.
Fannie Mae: The Federal National Mortgage Association and
its
successors in interest.
Fannie Mae Guides: The Fannie Mae Seller's Guide and the Fannie
Mae
Servicer's Guide and all amendments or additions thereto.
FDIC: The Federal Deposit Insurance Corporation, and its
successors
in interest.
Final Recovery Determination: With respect to any defaulted
Mortgage
Loan or any REO Property (other than a Mortgage Loan or REO
Property purchased
by the Responsible Party as contemplated by this Agreement), a
determination
made by the Servicer that all Insurance Proceeds, Condemnation
Proceeds,
Liquidation Proceeds and other payments or recoveries which the
Servicer, in its
reasonable good faith judgment, expects to be finally
recoverable in respect
thereof have been so recovered. The Servicer shall maintain
records, prepared by
a Servicing Officer, of each Final Recovery Determination made
thereby.
Final Scheduled Distribution Date: The Final Scheduled
Distribution
Date for each Class of Certificates is the Distribution Date in
each of the
following months:
Month of
Final Scheduled
Distribution Date
-----------------
Class 1A1 Certificates....................................
December 2034
Class 1A2 Certificates....................................
December 2034
Class 2A1 Certificates....................................
December 2034
Class 2A2 Certificates....................................
December 2034
Class 2A3 Certificates....................................
December 2034
Class M-1 Certificates....................................
December 2034
Class M-2 Certificates....................................
December 2034
Class M-3 Certificates....................................
December 2034
Class M-4 Certificates....................................
December 2034
Class M-5 Certificates....................................
December 2034
Class M-6 Certificates....................................
December 2034
Class B-1 Certificates....................................
December 2034
Class B-2 Certificates....................................
December 2034
Class B-3 Certificates....................................
December 2034
Class B-4 Certificates....................................
December 2034
Class P Certificates......................................
December 2034
Class X Certificates......................................
December 2034
Class R Certificates......................................
December 2034
First Lien Mortgage Loan: Any Mortgage Loan secured by a first
lien
Mortgage on the related Mortgaged Property.
Fixed Rate: With respect to the Fixed Rate Certificates, 5.000%
per
annum on or prior to the first possible Optional Termination
Date, and 5.500%
per annum thereafter.
Fixed Rate Certificates: As specified in the Preliminary
Statement.
Forbearance: As defined in Section 3.07(a).
Freddie Mac: The Federal Home Loan Mortgage Corporation, a
corporate
instrumentality of the United States created and existing under
Title III of the
Emergency Home Finance Act of 1970, as amended, and its
successors in interest.
Gross Margin: With respect to each Mortgage Loan, the fixed
percentage amount set forth in the related Mortgage Note to be
added to the
applicable Index to determine the Mortgage Interest Rate.
Group I Mortgage Loans: The Mortgage Loans identified on the
Mortgage Loan Schedule as Group I Mortgage Loans.
Group I Sequential Trigger Event: With respect to any
Distribution
Date (a) before the 37th Distribution Date, the circumstances in
which the
aggregate amount of Realized Losses incurred since the Cut-off
Date through the
last day of the related Prepayment Period divided by the
aggregate Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date
exceeds 2.250%,
or (b) on or after the 37th Distribution Date, if a Trigger
Event is in effect.
Group II Mortgage Loans: The Mortgage Loans identified on
the
Mortgage Loan Schedule as Group II Mortgage Loans.
High-Cost Mortgage Loan: A Mortgage Loan (a) covered by the
Home
Ownership and Equity Protection Act of 1994, (b) classified as
"High-Cost,"
"threshold," "covered" or "predatory" loan under any other
applicable state,
federal or local law (or a similarly classified loan using
different terminology
under a law imposing heightened regulatory scrutiny or
additional legal
liability for residential mortgage loans having high interest
rates, points
and/or fees), or (c) a Mortgage Loan categorized as High-Cost
pursuant to
Appendix E of Standard & Poor's Glossary.
Index: As to each Mortgage Loan, the index from time to time
in
effect for the adjustment of the Mortgage Interest Rate set
forth as such on the
related Mortgage Note.
Insurance Policy: With respect to any Mortgage Loan included in
the
Trust Fund, any insurance policy, including all riders and
endorsements thereto
in effect, including any replacement policy or policies for any
Insurance
Policies.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds
of
insurance policies insuring the Mortgage Loan or the related
Mortgaged Property.
Interest Accrual Period: With respect to each Class of LIBOR
Certificates and each corresponding Class of Lower Tier Regular
Interests and
any Distribution Date, the period commencing on the Distribution
Date occurring
in the month preceding the month in which the current
Distribution Date occurs
and ending on the day immediately preceding the current
Distribution Date;
provided, that in the case of the first Distribution Date, the
Interest Accrual
Period is the period from and including the Closing Date to but
excluding such
first Distribution Date). With respect to each Class of Fixed
Rate Certificates
and each corresponding Class of Lower-Tier Regular Interest and
any Distribution
Date, the calendar month preceding the month in which such
Distribution Date
occurs. For purposes of computing interest accruals on each
Class of LIBOR
Certificates, each Interest Accrual Period has the actual number
of days in such
period and each year is assumed to have 360 days. For purposes
of computing
interest accruals on each Class of Fixed Rate Certificates, each
Interest
Accrual Period has 30 days in such period and each year is
assumed to have 360
days.
Interest Remittance Amount: With respect to any Distribution
Date
and the Mortgage Loans in a Loan Group, that portion of
Available Funds
attributable to interest relating to the Mortgage Loans in such
Loan Group.
Investment Account: As defined in Section 3.12(a).
Late Collections: With respect to any Mortgage Loan and any
Due
Period, all amounts received after the Remittance Date
immediately following
such Due Period, whether as late payments of Scheduled Payments
or as Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds or
otherwise, which
represent late payments or collections of principal and/or
interest due (without
regard to any acceleration of payments under the related
Mortgage and Mortgage
Note) but delinquent for such Due Period and not previously
recovered.
LIBOR: With respect to any Interest Accrual Period for the
LIBOR
Certificates, the rate determined by the Trustee on the related
LIBOR
Determination Date on the basis of the offered rate for
one-month U.S. dollar
deposits as such rate appears on Telerate Page 3750 as of 11:00
a.m. (London
time) on such date; provided, that if such rate does not appear
on Telerate Page
3750, the rate for such date will be determined on the basis of
the rates at
which one-month U.S. dollar deposits are offered by the
Reference Banks at
approximately 11:00 a.m. (London time) on such date to prime
banks in the London
interbank market. In such event, the Trustee shall request the
principal London
office of each of the Reference Banks to provide a quotation of
its rate. If at
least two such quotations are provided, the rate for that date
will be the
arithmetic mean of the quotations (rounded upwards if necessary
to the nearest
whole multiple of 1/16%). If fewer than two quotations are
provided as
requested, the rate for that date will be the arithmetic mean of
the rates
quoted by major banks in New York City, selected by the Trustee
(after
consultation with the Depositor), at approximately 11:00 a.m.
(New York City
time) on such date for one-month U.S. dollar deposits of leading
European banks.
LIBOR Certificates: As specified in the Preliminary
Statement.
LIBOR Determination Date: With respect to any Interest
Accrual
Period for each Class of LIBOR Certificates, the second London
Business Day
preceding the commencement of such Interest Accrual Period.
Lifetime Rate Cap: The provision of each Mortgage Note which
provides for an absolute maximum Mortgage Interest Rate
thereunder. The Mortgage
Interest Rate during the term of each Mortgage Loan shall not at
any time exceed
the Mortgage Interest Rate at the time of origination of such
Adjustable Rate
Mortgage Loan by more than the amount per annum set forth on the
Mortgage Loan
Schedule.
Liquidated Mortgage Loan: With respect to any Distribution Date,
a
defaulted Mortgage Loan (including any REO Property) which was
liquidated or
charged off in the calendar month preceding the month of such
Distribution Date
and as to which the Servicer has certified (in accordance with
this Agreement)
that it has made a Final Recovery Determination.
Liquidation Event: With respect to any Mortgage Loan, any of
the
following events: (i) such Mortgage Loan is paid in full; (ii) a
Final Recovery
Determination is made as to such Mortgage Loan; or (iii) such
Mortgage Loan is
removed from coverage under this Agreement by reason of its
being purchased,
sold or replaced pursuant to or as contemplated by this
Agreement. With respect
to any REO Property, either of the following events: (i) a Final
Recovery
Determination is made as to such REO Property; or (ii) such REO
Property is
removed from coverage under this Agreement by reason of its
being purchased
pursuant to this Agreement.
Liquidation Proceeds: The amounts, other than Insurance
Proceeds,
Condemnation Proceeds or those received following the
acquisition of REO
Property, received in connection with the liquidation of a
defaulted Mortgage
Loan, whether through a trustee's sale, foreclosure sale or
otherwise, including
any Subsequent Recoveries.
Loan Group: The Group I Mortgage Loans or the Group II
Mortgage
Loans, as applicable.
Loan Group Cap: The Loan Group I Cap or the Loan Group II Cap,
as
applicable.
Loan Group I Cap: With respect to the Group I Mortgage Loans as
of
any Distribution Date, the product of the weighted average of
the Adjusted Net
Mortgage Interest Rates then in effect on the beginning of the
related Due
Period on the Group I Mortgage Loans, multiplied by 30 and
divided by the actual
number of days in the related Interest Accrual Period.
Loan Group II Cap: With respect to the Group II Mortgage Loans
as of
any Distribution Date, the product of the weighted average of
the Adjusted Net
Mortgage Interest Rates then in effect on the beginning of the
related Due
Period on the Group II Mortgage Loans, multiplied by 30 and
divided by the
actual number of days in the related Interest Accrual
Period.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan,
the
ratio (expressed as a percentage) of the original outstanding
principal amount
of the Mortgage Loan as of the Cut-off Date (unless otherwise
indicated), to the
lesser of (a) if the Mortgage Loan was made to finance the
acquisition of the
related Mortgaged Property, the purchase price of the Mortgaged
Property and
(ii) the Appraisal Value of the Mortgaged Property at
origination.
London Business Day: Any day on which dealings in deposits of
United
States dollars are transacted in the London interbank
market.
Lower Tier Principal Amount: As described in the Preliminary
Statement.
Lower Tier Regular Interest: Each of the Class LT-1A1, Class
LT-1A2
Class LT-2A1, Class LT-2A2, Class LT-2A3, Class LT-M-1, Class
LT-M-2, Class
LT-M-3, Class LT-M-4, Class LT-M-5, Class LT-M-6 Class LT-B-1,
Class LT-B-2,
Class LT-B-3, Class LT-B-4, Class LT-Group I, Class LT-Group II
and Class
LT-Accrual Interests as described in the Preliminary
Statement.
Lower Tier REMIC: As described in the Preliminary Statement.
Majority Class X Certificateholder: The Holder or Holders of
a
majority of the Percentage Interests in the Class X
Certificates.
Market Value Change Report: A report setting forth changes
in
property value of the Mortgaged Properties in a format agreed
upon by the
Servicer and the Depositor.
Monthly Statement: The statement made available to the
Certificateholders pursuant to Section 4.03.
Moody's: Moody's Investors Service, Inc. If Moody's 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 Moody's Investors
Service, Inc., 99
Church Street, New York, New York 10007, Attention: Residential
Mortgage
Pass-Through Group, or such other address as Moody's may
hereafter furnish to
the Depositor, the Servicer and the Trustee.
Mortgage: The mortgage, deed of trust or other instrument
identified
on the Mortgage Loan Schedule as securing a Mortgage Note.
Mortgage File: The items pertaining to a particular Mortgage
Loan
contained in either the Servicing File or Custodial File.
Mortgage Interest Rate: The annual rate of interest borne on
a
Mortgage Note with respect to each Mortgage Loan.
Mortgage Loan: An individual Mortgage Loan which is the subject
of
this Agreement, each Mortgage Loan originally sold and subject
to this Agreement
being identified on the Mortgage Loan Schedule, which Mortgage
Loan includes,
without limitation, the Mortgage File, the Custodial File, the
Servicing File,
the Scheduled Payments, Principal Prepayments, Liquidation
Proceeds,
Condemnation Proceeds, Insurance Proceeds, REO Disposition
proceeds, Prepayment
Premiums and all other rights, benefits, proceeds and
obligations arising from
or in connection with such Mortgage Loan, excluding replaced or
repurchased
Mortgage Loans.
Mortgage Loan Documents: The mortgage loan documents pertaining
to
each Mortgage Loan.
Mortgage Loan Schedule: A schedule of Mortgage Loans annexed
hereto
as Schedule I, such schedule setting forth the following
information with
respect to each Mortgage Loan as of the Cut-off Date: (1) the
Responsible
Party's Mortgage Loan identifying number; (2) the Mortgagor's
name; (3) the
street address of the Mortgaged Property including the city,
state and zip code;
(4) a code indicating whether the Mortgaged Property is
owner-occupied, a second
home or investment property; (5) the number and type of
residential units
constituting the Mortgaged Property (i.e., a single family
residence, a 2-4
family residence, a unit in a condominium project or a unit in a
planned unit
development, manufactured housing); (6) the original months to
maturity or the
remaining months to maturity from the Cut-off Date, in any case
based on the
original amortization schedule and, if different, the maturity
expressed in the
same manner but based on the actual amortization schedule; (7)
the Loan-to-Value
Ratio; (8) the Mortgage Interest Rate as of the Cut-off Date;
(9) the date on
which the Scheduled Payment was due on the Mortgage Loan and, if
such date is
not consistent with the Due Date currently in effect, such Due
Date; (10) the
stated maturity date; (11) the amount of the Scheduled Payment
as of the Cut-off
Date; (12) the last payment date on which a Scheduled Payment
was actually
applied to pay interest and the outstanding principal balance;
(13) the original
principal amount of the Mortgage Loan; (14) the principal
balance of the
Mortgage Loan as of the close of business on the Cut-off Date,
after deduction
of payments of principal due and collected on or before the
Cut-off Date; (15)
the Adjustment Date; (16) the Gross Margin; (17) the Lifetime
Rate Cap under the
terms of the Mortgage Note; (18) a code indicating the type of
Index; (19) the
Periodic Mortgage Interest Rate Cap under the terms of the
Mortgage Note; (20)
the Periodic Mortgage Interest Rate Floor under the terms of the
Mortgage Note;
(21) the type of Mortgage Loan (i.e., fixed rate, adjustable
rate, first lien,
second lien); (22) a code indicating the purpose of the loan
(i.e., purchase,
rate and term refinance, equity take-out refinance); (23) a code
indicating the
documentation style (i.e., full documentation, limited
documentation or stated
income); (24) the loan credit classification (as described in
the Underwriting
Guidelines); (25) whether such Mortgage Loan provides for a
Prepayment Premium;
(26) the Prepayment Premium period of such Mortgage Loan, if
applicable; (27) a
description of the Prepayment Premium, if applicable; (28) the
Mortgage Interest
Rate as of origination; (29) the credit risk score (FICO score)
at origination;
(30) the Cut-Off Date; (31) the date of the purchase of the
Mortgage Loan, if
applicable; (32) a code indicating whether the Mortgage Loan is
a Balloon Loan;
(33) a code indicating whether the Mortgage Loan is assumable;
(34) the date of
origination; (35) the Mortgage Interest Rate adjustment period;
(36) the
Mortgage Interest Rate adjustment percentage; (37) the Mortgage
Interest Rate
floor; (38) the Mortgage Interest Rate calculation method (i.e.,
30/360, simple
interest, other); (39) a code indicating whether the Mortgage
Loan has been
modified; (40) the one year payment history; (41) the Due Date
for the first
Scheduled Payment; (42) the original Scheduled Payment due; (43)
with respect to
the related Mortgagor, the debt-to-income ratio; (44) the
Appraised Value of the
Mortgaged Property; (45) the sales price of the Mortgaged
Property if the
Mortgage Loan was originated in connection with the purchase of
the Mortgaged
Property; and (46) a code indicating whether the Mortgage Loan
is a Group I
Mortgage Loan or a Group II Mortgage Loan. With respect to the
Mortgage Loans in
the aggregate: (1) the number of Mortgage Loans; (2) the current
aggregate
outstanding principal balance of the Mortgage Loans; (3) the
weighted average
Mortgage Interest Rate of the Mortgage Loans; and (4) the
weighted average
maturity of the Mortgage Loans.
Mortgage Note: The note or other evidence of the indebtedness of
a
Mortgagor under a Mortgage Loan, including all riders
thereto.
Mortgaged Property: The real property (or leasehold estate,
if
applicable) identified on the Mortgage Loan Schedule as securing
repayment of
the debt evidenced by a Mortgage Note.
Mortgagor: The obligor(s) on a Mortgage Note.
Net Monthly Excess Cash Flow: For any Distribution Date the
amount
remaining for distribution pursuant to Section 4.02(a)(iii)
(before giving
effect to distributions pursuant to such Section
4.02(a)(iii)).
Net Prepayment Interest Shortfall: For any Distribution Date,
the
amount by which the sum of the Prepayment Interest Shortfalls
exceeds the sum of
the Compensating Interest payments made with respect to such
Distribution Date.
New Century: New Century Mortgage Corporation, a California
corporation, and its successors in interest.
NIM Issuer: The entity established as the issuer of the NIM
Securities.
NIM Securities: Any debt securities secured or otherwise backed
by
some or all of the Class X and Class P Certificates.
NIM Trustee: The trustee for the NIM Securities.
90+ Day Delinquent Mortgage Loan: Each Mortgage Loan with
respect to
which any portion of a Scheduled Payment is, as of the last day
of the prior Due
Period, three months or more past due (without giving effect to
any grace
period), including each Mortgage Loan in foreclosure, all REO
Property and each
Mortgage Loan for which the Mortgagor has filed for
bankruptcy.
Non-Delay Certificates: As specified in the Preliminary
Statement.
Nonrecoverable P&I Advance: Any P&I Advance previously
made or
proposed to be made in respect of a Mortgage Loan or REO
Property that, in the
good faith business judgment of the Servicer, will not or, in
the case of a
proposed P&I Advance, would not be ultimately recoverable
from related late
payments, Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds on
such Mortgage Loan or REO Property as provided herein.
Nonrecoverable Servicing Advance: Any Servicing Advances
previously
made or proposed to be made in respect of a Mortgage Loan or REO
Property,
which, in the good faith business judgment of the Servicer, will
not or, in the
case of a proposed Servicing Advance, would not, be ultimately
recoverable from
related Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds or
otherwise.
Notice of Final Distribution: The notice to be provided pursuant
to
Section 9.02 to the effect that final distribution on any of the
Certificates
shall be made only upon presentation and surrender thereof.
Offered Certificates: As specified in the Preliminary
Statement.
Officer's Certificate: A certificate signed by an officer of
the
Servicer with responsibility for the servicing of the Mortgage
Loans and listed
on a list delivered to the Trustee pursuant to this
Agreement.
One-Month LIBOR Index: With respect to each Mortgage Loan, the
rate
as determined on the basis of rates at which one-month United
States dollar
deposits in the London market are offered to prime banks in the
London interbank
market on such date as provided in the related Mortgage
Note.
Opinion of Counsel: A written opinion of counsel, who may be
in-house counsel for the Servicer or the Subservicer, reasonably
acceptable to
the Trustee; provided, that any Opinion of Counsel relating to
(a) qualification
of either Trust REMIC as a REMIC or (b) compliance with the
REMIC Provisions,
must be (unless otherwise stated in such Opinion of Counsel) an
opinion of
counsel who (i) is in fact independent of the Servicer of the
Mortgage Loans,
(ii) does not have any material direct or indirect financial
interest in the
Servicer of the Mortgage Loans or in an affiliate of either and
(iii) is not
connected with the Servicer of the Mortgage Loans as an officer,
employee,
director or person performing similar functions.
Optional Termination Date: The date determined as follows:
the
Servicer (at the direction of the Majority Class X
Certificateholders (as
evidenced on the Certificate Register)) shall cause the Optional
Termination
Date to occur on any Distribution Date when the aggregate Stated
Principal
Balance of the Mortgage Loans, as of the last day of the related
Due Period, is
equal to 10% or less of the Cut-off Date Pool Principal Balance
(provided, that
if the Depositor or an Affiliate of the Depositor is one of the
Holders
constituting such majority, then there must be at least one
other unaffiliated
Holder constituting such majority and the Class X Certificates
held by such
Holder (or unaffiliated Holders in the aggregate) must represent
at least a 10%
Percentage Interest in the Class X Certificates).
Original Sale Date: November 30, 2004.
OTS: Office of Thrift Supervision, and any successor
thereto.
Outstanding: With respect to the Certificates as of any date
of
determination, all Certificates theretofore executed and
authenticated under
this Agreement except:
(i) Certificates theretofore cancelled by the Trustee or
delivered
to the Trustee for cancellation; and
(ii) Certificates in exchange for which or in lieu of which
other
Certificates have been executed and delivered by the Trustee
pursuant to
this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan
with
a Stated Principal Balance greater than zero which was not the
subject of a
Principal Prepayment in Full prior to such Due Date and which
did not become a
Liquidated Mortgage Loan prior to such Due Date.
Overcollateralized Amount: As of any Distribution Date, the
excess,
if any, of (a) the aggregate Stated Principal Balance of the
Mortgage Loans for
such Distribution Date over (b) the aggregate of the Class
Certificate Balances
of the Principal Certificates as of such Distribution Date
(after giving effect
to the payment of the Principal Remittance Amount on such
Certificates on such
Distribution Date).
Overcollateralization Deficiency: With respect to any
Distribution
Date, the excess, if any, of (a) the Specified
Overcollateralized Amount
applicable to such Distribution Date over (b) the
Overcollateralized Amount
applicable to such Distribution Date.
Overcollateralization Floor: With respect to any Distribution
Date,
0.50% of the aggregate Stated Principal Balance of the Mortgage
Loans as of the
Cut-off Date.
Overcollateralization Reduction Amount: With respect to any
Distribution Date, an amount equal to the lesser of (a) the
Excess
Overcollateralized Amount and (b) the Net Monthly Excess Cash
Flow.
Ownership Interest: As to any Residual Certificate, any
ownership
interest in such Certificate including any interest in such
Certificate as the
Holder thereof and any other interest therein, whether direct or
indirect, legal
or beneficial.
P&I Advance: As to any Mortgage Loan or REO Property, any
advance
made by the Servicer in respect of any Remittance Date
representing the
aggregate of all payments of principal and interest, net of the
Servicing Fee,
that were due during the related Due Period on the Mortgage
Loans and that were
delinquent on the related Remittance Date, plus certain amounts
representing
assumed payments not covered by any current net income on the
Mortgaged
Properties acquired by foreclosure or deed in lieu of
foreclosure as determined
pursuant to Section 4.01.
Pass-Through Margin: With respect to each Class of LIBOR
Certificates, the following percentages: Class 1A1 Certificates,
0.270%; Class
1A2 Certificates, 0.300%; Class 2A1 Certificates, 0.140%; Class
2A2
Certificates, 0.230%; Class 2A3 Certificates, 0.350%; Class M-1
Certificates,
0.430%; Class M-2 Certificates, 0.470%; Class M-3 Certificates,
0.500%; Class
M-4 Certificates, 0.700%; Class M-5 Certificates, 0.750%; Class
M-6
Certificates, 0.850%; Class B-1 Certificates, 1.300%; Class B-2
Certificates,
1.450%; and Class B-3 Certificates, 2.300%. On the first
Distribution Date after
the first possible Optional Termination Date, the Pass-Through
Margins shall
increase to: Class 1A1 Certificates, 0.540%; Class 1A2
Certificates, 0.600%;
Class 2A1 Certificates, 0.280%; Class 2A2 Certificates, 0.460%;
Class 2A3
Certificates, 0.700%; Class M-1 Certificates, 0.645%; Class M-2
Certificates,
0.705%; Class M-3 Certificates, 0.750%; Class M-4 Certificates,
1.050%; Class
M-5 Certificates, 1.125%; Class M-6 Certificates, 1.275%; Class
B-1
Certificates, 1.950%; Class B-2 Certificates, 2.175% and Class
B-3 Certificates,
3.450%.
Pass-Through Rate: For each Class of Certificates and each
Lower
Tier Regular Interest, the per annum rate set forth or
calculated in the manner
described in the Preliminary Statement.
Percentage Interest: As to any Certificate, the percentage
interest
evidenced thereby in distributions required to be made on the
related Class,
such percentage interest being set forth on the face thereof or
equal to the
percentage obtained by dividing the Denomination of such
Certificate by the
aggregate of the Denominations of all Certificates of the same
Class.
Periodic Mortgage Interest Rate Cap: With respect to each
Mortgage
Loan, the provision of each Mortgage Note which provides for an
absolute maximum
amount by which the Mortgage Interest Rate therein may increase
or decrease on
an Adjustment Date above or below the Mortgage Interest Rate
previously in
effect. The Periodic Mortgage Interest Rate Cap for each
Mortgage Loan is the
rate set forth on the Mortgage Loan Schedule.
Periodic Mortgage Interest Rate Floor: With respect to each
Mortgage
Loan, the provision of each Mortgage Note which provides for an
absolute minimum
amount by which the Mortgage Interest Rate therein may increase
or decrease on
an Adjustment Date above or below the Mortgage Interest Rate
previously in
effect. The Periodic Mortgage Interest Rate Floor for each
Mortgage Loan is the
rate set forth on the Mortgage Loan Schedule.
Permitted Investments: Any one or more of the following
obligations
or securities acquired at a purchase price of not greater than
par, regardless
of whether issued by the Servicer, the Trustee or any of their
respective
Affiliates:
(i) direct obligations of, or obligations fully guaranteed
as
to timely payment of principal and interest by, the United
States or
any agency or instrumentality thereof, provided such obligations
are
backed by the full faith and credit of the United States;
(ii) demand and time deposits in, certificates of deposit
of,
or bankers' acceptances (which shall each have an original
maturity
of not more than 90 days and, in the case of bankers'
acceptances,
shall in no event have an original maturity of more than 365
days or
a remaining maturity of more than 30 days) denominated in
United
States dollars and issued by any Depository Institution and
rated
P-1 by Moody's and "F1+" by Fitch;
(iii) repurchase obligations with respect to any security
described in clause (i) above entered into with a Depository
Institution (acting as principal);
(iv) securities bearing interest or sold at a discount that
are issued by any corporation incorporated under the laws of
the
United States of America or any state thereof and that are rated
by
each Rating Agency that rates such securities in its highest
long-term unsecured rating categories at the time of such
investment
or contractual commitment providing for such investment;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable
on
demand or on a specified date not more than 30 days after the
date
of acquisition thereof) that is rated by each Rating Agency
that
rates such securities in its highest short-term unsecured
debt
rating available at the time of such investment;
(vi) units of money market funds, including money market
funds
advised by the Depositor or the Trustee or an Affiliate
thereof,
that have been rated "Aaa" by Moody's and "AAAm," "AAAm-G"
by
Standard & Poor's and at least "AA" by Fitch (in each case,
to the
extent they are designated as Rating Agencies in the
Preliminary
Statement); and
(vii) if previously confirmed in writing to the Trustee, any
other demand, money market or time deposit, or any other
obligation,
security or investment, as may be acceptable to the Rating
Agencies
as a permitted investment of funds backing "Aaa" or "AAA"
rated
securities;
provided, however, that no instrument described hereunder shall
evidence either
the right to receive (a) only interest with respect to the
obligations
underlying such instrument or (b) both principal and interest
payments derived
from obligations underlying such instrument and the interest and
principal
payments with respect to such instrument provide a yield to
maturity at par
greater than 120% of the yield to maturity at par of the
underlying obligations.
For investments in the Distribution Account (except during the
Trustee Float
Period), only the obligations or securities (or instruments
which invest in the
obligations or securities) specified in clause (i) above shall
constitute
Permitted Investments.
Permitted Transferee: Any Person other than (i) the United
States,
any State or political subdivision thereof, or any agency or
instrumentality of
any of the foregoing, (ii) a foreign government, international
organization or
any agency or instrumentality of either of the foregoing, (iii)
an organization
(except certain farmers' cooperatives described in Section 521
of the Code)
which is exempt from tax imposed by Chapter 1 of the Code
(including the tax
imposed by Section 511 of the Code on unrelated business taxable
income) on any
excess inclusions (as defined in Section 860E(c)(1) of the Code)
with respect to
any Residual Certificate, (iv) rural electric and telephone
cooperatives
described in Section 1381(a)(2)(C) of the Code, (v) a Person
that is not a U.S.
Person or a U.S. Person with respect to whom income from a
Residual Certificate
is attributable to a foreign permanent establishment or fixed
base (within the
meaning of an applicable income tax treaty) of such Person or
any other U.S.
Person, (vi) an "electing large partnership" within the meaning
of Section 775
of the Code and (vii) any other Person so designated by the
Depositor based upon
an Opinion of Counsel that the Transfer of an Ownership Interest
in a Residual
Certificate to such Person may cause either Trust REMIC to fail
to qualify as a
REMIC at any time that the Certificates are outstanding. The
terms "United
States," "State" and "international organization" shall have the
meanings set
forth in Section 7701 of the Code or successor provisions. A
corporation will
not be treated as an instrumentality of the United States or of
any State or
political subdivision thereof for these purposes if all of its
activities are
subject to tax and, with the exception of Freddie 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 pursuant to
the terms of the
related Mortgage Note.
Principal Certificates: As specified in the Preliminary
Statement.
Principal Distribution Amount: For any Distribution Date, the
sum of
(i) the Basic Principal Distribution Amount for such
Distribution Date and (ii)
the Extra Principal Distribution Amount for such Distribution
Date.
Principal Prepayment: Any full or partial payment or other
recovery
of principal on a Mortgage Loan (including upon liquidation of a
Mortgage Loan)
which is received in advance of its scheduled Due Date,
excluding any Prepayment
Premium and which is not accompanied by an amount of interest
representing
scheduled interest due on any date or dates in any month or
months subsequent to
the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment made by
a
Mortgagor of the entire principal balance of a Mortgage
Loan.
Principal Remittance Amount: With respect to any Distribution
Date,
the amount equal to the sum of the following amounts (without
duplication) with
respect to the related Due Period: (i) each scheduled payment of
principal on a
Mortgage Loan due during such Due Period and received by the
Servicer on or
prior to the related Determination Date or advanced by the
Servicer prior to the
related Remittance Date, (ii) all Principal Prepayments received
during the
related Prepayment Period, (iii) all Liquidation Proceeds,
Condemnation Proceeds
and Insurance Proceeds on the Mortgage Loans allocable to
principal actually
collected by the Servicer during the related Prepayment Period,
(iv) the portion
of the Repurchase Price allocable to principal with respect to
each Mortgage
Loan, the repurchase obligation for which arose during the
related Prepayment
Period, that was repurchased during the period from the
Remittance Date prior to
the prior Distribution Date (or from the Closing Date in the
case of the first
Distribution Date) through the Remittance Date for the current
Distribution
Date, (v) the principal portion of all Substitution Adjustment
Amounts with
respect to the substitutions of Mortgage Loans that occur during
the Prepayment
Period preceding such Distribution Date and (vi) the allocable
portion of the
proceeds received with respect to the termination of the Trust
Fund pursuant to
clause (a) of Section 9.01 (to the extent such proceeds relate
to principal).
Privacy Laws: Title V of the Gramm Leach Bliley Act of 1999,
as
amended, and all applicable regulations promulgated
thereunder.
Private Certificates: As specified in the Preliminary
Statement.
Prospectus Supplement: The Prospectus Supplement, dated January
24,
2005, relating to the Offered Certificates.
PTCE 95-60: As defined in Section 5.02(b).
PUD: A planned unit development.
Purchase Agreement: The Flow Mortgage Loan Purchase and
Warranties
Agreement, dated as of August 25, 2004 between the Purchaser and
the Responsible
Party.
Purchaser: Goldman Sachs Mortgage Company, a New York
limited
partnership, and its successors in interest.
Rating Agency: Each of the Rating Agencies specified in the
Preliminary Statement. If such organization or a successor is no
longer in
existence, "Rating Agency" shall be such nationally recognized
statistical
rating organization, or other comparable Person, as is
designated by the
Depositor, notice of which designation shall be given to the
Trustee. References
herein to a given rating or rating category of a Rating Agency
shall mean such
rating category without giving effect to any modifiers. For
purposes of Section
10.05(b), the addresses for notices to each Rating Agency shall
be the address
specified therefor in the definition corresponding to the name
of such Rating
Agency, or such other address as either such Rating Agency may
hereafter furnish
to the Depositor and the Servicer.
Realized Losses: With respect to any date of determination and
any
Liquidated Mortgage Loan, the amount, if any, by which (a) the
unpaid principal
balance of such Liquidated Mortgage Loan together with accrued
and unpaid
interest thereon exceeds (b) the Liquidation Proceeds with
respect thereto net
of the expenses incurred by the Servicer in connection with the
liquidation of
such Liquidated Mortgage Loan and net of the amount of
unreimbursed Servicing
Advances with respect to such Liquidated Mortgage Loan.
Record Date: With respect to any Distribution Date, the close
of
business on the last day of the related Interest Accrual Period;
provided,
however, that for any Certificate issued in definitive form, the
Record Date
shall be the close of business on the last Business Day of the
month preceding
the month in which such applicable Distribution Date occurs.
Reference Bank: As defined in Section 4.04.
Regular Certificates: As specified in the Preliminary
Statement.
Relief Act Interest Shortfall: With respect to any Distribution
Date
and any Mortgage Loan, any reduction in the amount of interest
collectible on
such Mortgage Loan for the most recently ended Due Period as a
result of the
application of the Servicemembers Civil Relief Act or any
similar state
statutes.
REMIC: A "real estate mortgage investment conduit" within
the
meaning of Section 860D of the Code.
REMIC Opinion: As defined in Section 9.03.
REMIC Provisions: Provisions of the federal income tax law
relating
to real estate mortgage investment conduits, which appear at
Sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and
related provisions,
and regulations promulgated thereunder, as the foregoing may be
in effect from
time to time as well as provisions of applicable state laws.
Remittance Date: With respect to any Distribution Date, no
later
than 12:30 PM, Central Time on the Business Day immediately
preceding such
Distribution Date.
REO Disposition: The final sale by the Servicer of any REO
Property.
REO Imputed Interest: As to any REO Property, for any period,
an
amount equivalent to interest (at the Mortgage Interest Rate net
of the
Servicing Fee Rate that would have been applicable to the
related Mortgage Loan
had it been outstanding) on the unpaid principal balance of the
Mortgage Loan as
of the date of acquisition thereof (as such balance is reduced
pursuant to
Section 3.15 by any income from the REO Property treated as a
recovery of
principal).
REO Property: A Mortgaged Property acquired by the Trust
Fund
through foreclosure or deed-in-lieu of foreclosure in connection
with a
defaulted Mortgage Loan.
Reporting Date: The 18th day of each calendar month or the
immediately following Business Day if the 18th is not a Business
Day.
Repurchase Price: With respect to any Mortgage Loan, an amount
equal
to the sum of (i) the unpaid principal balance of such Mortgage
Loan as of the
date of repurchase, (ii) interest on such unpaid principal
balance of such
Mortgage Loan at the Mortgage Interest Rate from the last date
through which
interest has been paid and distributed to the Trustee to the
date of repurchase,
(iii) all unreimbursed Servicing Advances and (iv) all expenses
incurred by the
Servicer, the Trust or the Trustee, as the case may be, in
respect of a breach
or defect, including, without limitation, expenses arising out
of the Servicer's
or Trustee's, as the case may be, enforcement of the Responsible
Party's
repurchase obligation, to the extent not included in clause
(iii) and (v) any
costs and damages incurred by the Trust in connection with any
violation by such
Mortgage Loan of any predatory lending law or abusive lending
law.
Request for Release: The Request for Release submitted by
the
Servicer to the Trustee, substantially in the form of Exhibit
J.
Residual Certificates: As specified in the Preliminary
Statement.
Responsible Officer: When used with respect to the Trustee, any
vice
president, any assistant vice president, any assistant
secretary, any assistant
treasurer, any associate or any other officer of the Trustee
customarily
performing functions similar to those performed by any of the
above designated
officers who at such time shall be officers to whom, with
respect to a
particular matter, such matter is referred because of such
officer's knowledge
of and familiarity with the particular subject and who shall
have direct
responsibility for the administration of this Agreement.
Responsible Party: NC Capital Corporation, a California
corporation,
and its successors in interest.
Review Appraisal Value: As defined in the Underwriting
Guidelines.
Rule 144A Letter: As defined in Section 5.02(b).
Scheduled Payment: The scheduled monthly payment on a Mortgage
Loan
due on any Due Date allocable to principal and/or interest on
such Mortgage Loan
which, unless otherwise specified herein, shall give effect to
any related Debt
Service Reduction and any Deficient Valuation that affects the
amount of the
monthly payment due on such Mortgage Loan.
Securities Act: The Securities Act of 1933, as amended.
Senior Enhancement Percentage: With respect to any
Distribution
Date, the percentage obtained by dividing (x) the sum of (i) the
aggregate Class
Certificate Balance of the Subordinated Certificates and (ii)
the
Overcollateralized Amount (in each case after taking into
account the
distributions of the Principal Distribution Amount for such
Distribution Date)
by (y) the aggregate Stated Principal Balance of the Mortgage
Loans for such
Distribution Date.
Senior Specified Enhancement Percentage: As of any date of
determination, 39.80%.
Servicer: New Century and Countrywide Servicing and if a
successor
servicer is appointed hereunder, such successor servicer. When
the term
"Servicer" is used in this Agreement prior to the Servicing
Transfer Date, New
Century, and on and after the Servicing Transfer Date,
Countrywide Servicing,
unless the context otherwise requires.
Servicer Remittance Report: As defined in Section 4.03(d).
Servicing Advances: The reasonable "out-of-pocket" costs and
expenses (including legal fees) incurred by the Servicer in the
performance of
its servicing obligations in connection with a default,
delinquency or other
unanticipated event, including, but not limited to, the cost of
(i) the
preservation, restoration, inspection and protection of a
Mortgaged Property,
(ii) any enforcement or judicial proceedings, including
foreclosures and
litigation, in respect of a particular Mortgage Loan, (iii) the
management
(including reasonable fees in connection therewith) and
liquidation of any REO
Property, (iv) the performance of its obligations under Sections
3.01, 3.09,
3.13 and 3.15. Servicing Advances also include any reasonable
"out of pocket"
costs and expenses (including legal fees) incurred by the
Servicer in connection
with executing and recording instruments of satisfaction, deeds
of reconveyance
or Assignments of Mortgage in connection with any satisfaction
or foreclosures
in respect of any Mortgage Loan to the extent not recovered from
the Mortgagor
or otherwise payable under this Agreement and (v) obtaining or
correcting any
legal documentation required to be included in the Mortgage
Files and necessary
for the Servicer to perform its obligations under this
Agreement. The Servicer
shall not be required to make any Nonrecoverable Servicing
Advances.
Servicing Fee: With respect to each Mortgage Loan and any
Distribution Date, an amount equal to the product of (i)
one-twelfth of the
Servicing Fee Rate, and (ii) the Stated Principal Balance of
such Mortgage Loan
as of the first day of the calendar month preceding the month in
which such
Distribution Date occurs. Such fee shall be payable monthly, and
shall be pro
rated for any portion of a month during which the Mortgage Loan
is serviced by
the Servicer under this Agreement. The Servicing Fee is payable
solely from the
interest portion (including recoveries with respect to interest
from Liquidation
Proceeds, Insurance Proceeds, Condemnation Proceeds and proceeds
received with
respect to REO Properties, to the extent permitted by Section
3.11) of such
Scheduled Payment collected by the Servicer or as otherwise
provided under
Section 3.11.
Servicing Fee Rate: With respect to each Mortgage Loan, 0.50%
per
annum.
Servicing File: With respect to each Mortgage Loan, the file
retained by the Servicer consisting of originals or copies of
all documents in
the Mortgage File which are not delivered to the Trustee in the
Custodial File
and copies of the Mortgage Loan Documents set forth in Exhibit K
hereto.
Servicing Officer: Any officer of the Servicer involved in,
or
responsible for, the administration and servicing of the
Mortgage Loans whose
name and facsimile signature appear on a list of servicing
officers furnished to
the Trustee by the Servicer on the Closing Date pursuant to this
Agreement, as
such list may from time to time be amended.
Servicing Transfer Costs: All reasonable out of pocket costs
and
expenses incurred by the Trustee in connection with the transfer
of servicing
from a terminated Servicer, including, without limitation, any
such costs or
expenses associated with the complete transfer of all servicing
data and the
completion, correction or manipulation of such servicing data as
may be required
by the Trustee to correct any errors or insufficiencies in the
servicing data or
otherwise to enable the Trustee (or any successor Servicer
appointed pursuant to
Section 7.03) to service the Mortgage Loans properly and
effectively.
Servicing Transfer Date: With respect to any Mortgage Loan,
March 1,
2005, or such earlier date as to which servicing of such
Mortgage Loan transfers
to Countrywide Servicing.
Similar Law: As defined in Section 5.02(b).
Six-Month LIBOR Index: With respect to each Mortgage Loan, the
rate
as determined on the basis of rates at which six-month U.S.
dollar deposits are
offered to prime banks in the London interbank market on such
date as provided
in the related Mortgage Note.
60+ Day Delinquent Mortgage Loan: Each Mortgage Loan with
respect to
which any portion of a Scheduled Payment is, as of the last day
of the prior Due
Period, two months or more past due (without giving effect to
any grace period),
each Mortgage Loan in foreclosure, each REO Property and each
Mortgage Loan for
which the Mortgagor has filed for bankruptcy.
Specified Overcollateralized Amount: Prior to the Stepdown Date,
an
amount equal to 1.75% of the Cut-off Date Pool Principal
Balance. On and after
the Stepdown Date, an amount equal to 3.50% of the aggregate
Stated Principal
Balance of the Mortgage Loans for such Distribution Date,
subject, until the
Class Certificate Balance of each Class of Principal
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 McGraw-Hill Companies, Inc, and its successors in interest.
If Standard &
Poor's is designated as a Rating Agency in the Preliminary
Statement, for
purposes of Section 10.05(b) the address for notices to Standard
& Poor's shall
be Standard & Poor's, 55 Water Street, New York, New York
10041, Attention:
Residential Mortgage Surveillance Group - GSAA Home Equity Trust
2005-2, or such
other address as Standard & Poor's may hereafter furnish to
the Depositor, the
Servicer and the Trustee.
Standard & Poor's Glossary: Version 5.6 of the Standard
& Poor's
LEVELS(R) Glossary.
Start-up Day: As defined in Section 2.06.
Stated Principal Balance: As to each Mortgage Loan and as of
any
date of determination, (i) the principal balance of the Mortgage
Loan at the
Cut-off Date after giving effect to payments of principal due on
or before such
date, minus (ii) all amounts previously remitted to the Trustee
with respect to
the related Mortgage Loan representing payments or recoveries of
principal
including advances in respect of scheduled payments of
principal. For purposes
of any Distribution Date, the Stated Principal Balance of any
Mortgage Loan will
give effect to any scheduled payments of principal received by
the Servicer on
or prior to the related Determination Date or advanced by the
Servicer for the
related Remittance Date and any unscheduled principal payments
and other
unscheduled principal collections received during the related
Prepayment Period,
and the Stated Principal Balance of any Mortgage Loan that has
prepaid in full
or has become a Liquidated Mortgage Loan during the related
Prepayment Period
shall be zero.
Stepdown Date: The earlier to occur of (a) the date on which
the
aggregate Class Certificate Balances of the Class A Certificates
have been
reduced to zero, and (b) the later to occur of (i) the
Distribution Date in
February 2008, and (ii) the first Distribution Date on which the
Senior
Enhancement Percentage is greater than or equal to the Senior
Specified
Enhancement Percentage.
Subordinated Certificates: As specified in the Preliminary
Statement.
Subsequent Recoveries: Amounts received with respect to any
Liquidated Mortgage Loan after it has become a Liquidated
Mortgage Loan.
Subservicer: As defined in Section 3.02(a).
Subservicing Account: As defined in Section 3.08.
Subservicing Agreements: As defined in Section 3.02(a).
Substitute Mortgage Loan: A Mortgage Loan substituted by the
Responsible Party for a Deleted Mortgage Loan which must, on the
date of such
substitution, as confirmed in a Request for Release,
substantially in the form
of Exhibit J, (i) have a Stated Principal Balance, after
deduction of the
principal portion of the Scheduled Payment due in the month of
substitution, not
in excess of the Stated Principal Balance of the Deleted
Mortgage Loan; (ii) be
accruing interest at a rate no lower than and not more than 1%
per annum higher
than, that of the Deleted Mortgage Loan; (iii) have a
Loan-to-Value Ratio no
higher than that of the Deleted Mortgage Loan; (iv) have a
remaining term to
maturity no greater than (and not more than one year less than
that of) the
Deleted Mortgage Loan; and (v) comply with each representation
and warranty set
forth in Section 2.03.
Substitution Adjustment Amount: As defined in Section
2.03(g).
Tax Service Contract: As defined in Section 3.09(a).
Telerate Page 3750: The display page currently so designated on
the
Bridge Telerate Service (or such other page as may replace that
page on that
service for displaying comparable rates or prices).
Termination Price: As defined in Section 9.01.
Total Monthly Excess Spread: As to any Distribution Date, an
amount
equal to the excess if any, of (i) the interest collected on the
Mortgage Loans
received by the Servicer on or prior to the related
Determination Date or
advanced by the Servicer for the related Remittance Date (net of
Expense Fees
over (ii) the sum of amounts payable to the Principal
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 15.00% of the Senior Enhancement Percentage as of the
last day of the
prior Due Period or (ii) the quotient (expressed as a
percentage) of (x) the
aggregate amount of Realized Losses incurred since the Cut-off
Date through the
last day of the related Prepayment Period divided by (y) the
Cut-off Date Pool
Principal Balance, exceeds the applicable percentages set forth
below with
respect to such Distribution Date:
--------------------------------------------------------------------------
Distribution Date Occurring In Loss Percentage
--------------------------------------------------------------------------
February 2008 through January 2009 2.250% for the first month,
plus an
additional 1/12th of 1.000% for each
month thereafter (e.g., approximately
2.333% in March 2008)
--------------------------------------------------------------------------
February 2009 through January 2010 3.250% for the first month,
plus an
additional 1/12th of 1.000% for each
month thereafter (e.g., approximately
3.333% in March 2009)
--------------------------------------------------------------------------
February 2010 through January 2011 4.250% for the first month,
plus an
additional 1/12th of 0.250% for each
month thereafter (e.g., approximately
4.271% in March 2010)
--------------------------------------------------------------------------
February 2011 and thereafter 4.500%
--------------------------------------------------------------------------
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; and (iv)
all proceeds of
the conversion, voluntary or involuntary, of any of the
foregoing.
Trust REMIC: Either the Lower Tier REMIC or the Upper Tier
REMIC, as
applicable.
Trustee: Deutsche Bank National Trust Company, and its
successors in
interest and, if a successor trustee is appointed hereunder,
such successor.
Trustee Fee: As to each Mortgage Loan and any Distribution Date,
an
amount equal to one month's interest at the related Trustee Fee
Rate on the
Stated Principal Balance of such Mortgage Loan as of the
preceding Distribution
Date (or as of the Closing Date in the case of the first
Distribution Date) or,
in the event of any payment of interest which accompanies a
Principal Prepayment
in Full made by the Mortgagor, interest at the Trustee Fee Rate
on the Stated
Principal Balance of such Mortgage Loan for the period covered
by such payment
of interest.
Trustee Fee Rate: With respect to each Mortgage Loan, 0.0052%
per
annum.
Trustee Float Period: With respect to any Distribution Date and
the
related amounts in the Distribution Account, the period
commencing on the
Business Day immediately preceding such Distribution Date and
ending on such
Distribution Date.
Underwriters' Exemption: Any exemption listed in footnote 1 of,
and
amended by, Prohibited Transaction Exemption 2002-41, 67 Fed.
Reg. 54487 (2002),
or any successor exemption.
Underwriting Guidelines: The underwriting guidelines attached to
the
Purchase Agreement.
Unpaid Interest Amount: As of any Distribution Date and any
Class of
Certificates, the sum of (a) the portion of the Accrued
Certificate Interest
Distribution Amount from Distribution Dates prior to the current
Distribution
Date remaining unpaid immediately prior to the current
Distribution Date and (b)
interest on the amount in clause (a) above at the applicable
Pass-Through Rate
(to the extent permitted by applicable law).
Upper Tier Regular Interest: As described in the Preliminary
Statement.
Upper Tier REMIC: As described in the Preliminary Statement.
U.S. Person: (i) A citizen or resident of the United States;
(ii) a
corporation (or entity treated as a corporation for tax
purposes) created or
organized in the United States or under the laws of the United
States or of any
State thereof, including, for this purpose, the District of
Columbia; (iii) a
partnership (or entity treated as a partnership for tax
purposes) organized in
the United States or under the laws of the United States or of
any state
thereof, including, for this purpose, the District of Columbia
(unless provided
otherwise by future Treasury regulations); (iv) an estate whose
income is
includible in gross income for United States income tax purposes
regardless of
its source; or (v) a trust, if a court within the United States
is able to
exercise primary supervision over the administration of the
trust and one or
more U.S. Persons have authority to control all substantial
decisions of the
trust. Notwithstanding the last clause of the preceding
sentence, to the extent
provided in Treasury regulations, certain trusts in existence on
August 20,
1996, and treated as U.S. Persons prior to such date, may elect
to continue to
be U.S. Persons.
Voting Rights: The portion of the voting rights of all of
the
Certificates which is allocated to any Certificate. As of any
date of
determination, (a) 1% of all Voting Rights shall be allocated to
the Class X
Certificates, if any (such Voting Rights to be allocated among
the holders of
Certificates of each such Class in accordance with their
respective Percentage
Interests), (b) 1% of all Voting Rights shall be allocated to
the Class P
Certificates, if any, and (c) the remaining Voting Rights shall
be allocated
among Holders of the remaining Classes of Certificates in
proportion to the
Certificate Balances of their respective Certificates on such
date.
WAC Cap: With respect to the Mortgage Loans as of any
Distribution
Date, a per annum rate equal to (a) the weighted average of the
Mortgage
Interest Rates for each Mortgage Loan (in each case, less the
applicable Expense
Fee Rate) then in effect on the beginning of the related Due
Period on the
Mortgage Loans, multiplied by, in the case of the LIBOR
Certificates, (b) 30
divided by the actual number of days in the related Interest
Accrual Period.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans. (a) The
Depositor,
concurrently with the execution and delivery hereof, hereby
sells, transfers,
assigns, sets over and otherwise conveys to the Trustee for the
benefit of the
Certificateholders, without recourse, all the right, title and
interest of the
Depositor in and to the Trust Fund and the Trustee, on behalf of
the Trust,
hereby accepts the Trust Fund.
(b) In connection with the transfer and assignment of each
Mortgage
Loan, the Depositor has delivered or caused to be delivered to
the Trustee for
the benefit of the Certificateholders the following documents or
instruments
with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note bearing all intervening
endorsements,
endorsed "Pay to the order of _____________, without recourse"
and signed
in the name of the last endorsee. To the extent that there is no
room on
the face of the Mortgage Notes for endorsements, the endorsement
may be
contained on an allonge, unless the Trustee is advised by the
Responsible
Party that state law does not allow for the use of an allonge.
If the
Mortgage Loan was acquired by the Responsible Party in a merger,
the
endorsement must be by "[last endorsee], successor by merger to
[name of
predecessor]". If the Mortgage Loan was acquired or originated
by the last
endorsee while doing business under another name, the
endorsement must be
by "[last endorsee], formerly known as [previous name]";
(ii) the original of any guarantee executed in connection with
the
Mortgage Note;
(iii) the original Mortgage with evidence of recording thereon
or a
certified true copy of such Mortgage submitted for recording. If
in
connection with any Mortgage Loan, the Responsible Party cannot
deliver or
cause to be delivered the original Mortgage with evidence of
recording
thereon on or prior to the Closing Date because of a delay
caused by the
public recording office where such Mortgage has been delivered
for
recordation or because such Mortgage has been lost or because
such public
recording office retains the original recorded Mortgage, the
Responsible
Party shall deliver or cause to be delivered to the Trustee, a
photocopy
of such Mortgage, together with (i) in the case of a delay
caused by the
public recording office, an Officer's Certificate of the
Responsible Party
(or certified by the title company, escrow agent, or closing
attorney)
stating that such Mortgage has been dispatched to the
appropriate public
recording office for recordation and that the original recorded
Mortgage
or a copy of such Mortgage certified by such public recording
office to be
a true and complete copy of the original recorded Mortgage will
be
promptly delivered to the Trustee upon receipt thereof by the
Responsible
Party; or (ii) in the case of a Mortgage where a public
recording office
retains the original recorded Mortgage or in the case where a
Mortgage is
lost after recordation in a public recording office, a copy of
such
Mortgage certified by such public recording office to be a true
and
complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification,
consolidation or
extension agreements, (if provided), with evidence of recording
thereon or
a certified true copy of such agreement submitted for
recording;
(v) the original Assignment of Mortgage for each Mortgage
Loan
endorsed in blank and in recordable form;
(vi) the originals of all intervening Assignments of Mortgage
(if
any) evidencing a complete chain of assignment from the
applicable
originator to the last endorsee with evidence of recording
thereon, or if
any such intervening assignment has not been returned from the
applicable
recording office or has been lost or if such public recording
office
retains the original recorded Assignments of Mortgage, the
Responsible
Party shall deliver or cause to be delivered to the Trustee, a
photocopy
of such intervening assignment, together with (A) in the case of
a delay
caused by the public recording office, an Officer's Certificate
of the
Responsible Party (or certified by the title company, escrow
agent, or
closing attorney) stating that such intervening Assignment of
Mortgage has
been dispatched to the appropriate public recording office for
recordation
and that such original recorded intervening Assignment of
Mortgage or a
copy of such intervening Assignment of Mortgage certified by
the
appropriate public recording office to be a true and complete
copy of the
original recorded intervening assignment of mortgage will be
promptly
delivered to the Trustee upon receipt thereof by the Responsible
Party; or
(B) in the case of an intervening assignment where a public
recording
office retains the original recorded intervening assignment or
in the case
where an intervening assignment is lost after recordation in a
public
recording office, a copy of such intervening assignment
certified by such
public recording office to be a true and complete copy of the
original
recorded intervening assignment;
(vii) the original mortgagee policy of title insurance or, in
the
event such original title policy is unavailable, a certified
true copy of
the related policy binder or commitment for title certified to
be true and
complete by the title insurance company; and
(viii) a security agreement, chattel mortgage or equivalent
document
executed in connection with the Mortgage (if provided).
Each Mortgage Loan for which a Mortgage Note is missing shall
be
evidenced by a lost note affidavit as of the Closing Date. In
the event, for
purposes of the Closing Date, one or more lost note affidavits
are provided to
cover multiple missing Mortgage Notes, the Responsible Party
shall deliver to
the Trustee the applicable individual lost note affidavits
within ten (10)
Business Days of the Closing Date. If the Responsible Party
fails to deliver the
required individual lost note affidavits within the specified
period of time,
the Trustee shall notify the Responsible Party to take such
remedial actions,
including, without limitation, the repurchase by the Responsible
Party of such
Mortgage Loan within 30 days of the Closing Date.
The Responsible Party shall deliver to the Trustee the
applicable
recorded document promptly upon receipt from the respective
recording office but
in no event later than 120 days from the Closing Date.
From time to time, the Responsible Party shall forward, with
respect
to the Mortgage Loans, to the Trustee additional original
documents, additional
documents evidencing an assumption, modification, consolidation
or extension of
a Mortgage Loan approved by the Responsible Party, in accordance
with the terms
of this Agreement. All such mortgage documents held by the
Trustee as to each
Mortgage Loan shall constitute the "Custodial File."
On or prior to the Closing Date, the Responsible Party shall
deliver
to the Trustee Assignments of Mortgages, in blank, for each
Mortgage Loan. The
Responsible Party shall cause the Assignments of Mortgage with
completed
recording information to be provided to the Servicer in a
reasonably acceptable
manner. No later than thirty (30) Business Days following the
later of the
Closing Date and the date of receipt by the Servicer of the
fully completed
Assignments of Mortgages in recordable form, the Servicer shall
promptly submit
or cause to be submitted for recording, at the expense of the
Responsible Party,
at no expense to the Trust Fund, the Servicer, the Trustee or
the Depositor in
the appropriate public office for real property records, each
Assignment of
Mortgage referred to in Section 2.01(b)(v). Notwithstanding the
foregoing,
however, for administrative convenience and facilitation of
servicing and to
reduce closing costs, the Assignments of Mortgage shall not be
required to be
completed and submitted for recording with respect to any
Mortgage Loan if the
Trustee and each Rating Agency has received an opinion of
counsel, satisfactory
in form and substance to the Trustee and each Rating Agency, to
the effect that
the recordation of such Assignments of Mortgage in any specific
jurisdiction is
not necessary to protect the Trustee's interest in the related
Mortgage Note. If
the Assignment of Mortgage is to be recorded, the Mortgage shall
be assigned by
the Responsible Party at the Responsible Party's expense to
"Deutsche Bank
National Trust Company as trustee under the Pooling and
Servicing Agreement
dated as of January 1, 2005, GSAA Home Equity Trust 2005-2." In
the event that
any such assignment is lost or returned unrecorded because of a
defect therein,
the Responsible Party shall promptly prepare a substitute
assignment to cure
such defect and thereafter cause each such assignment to be duly
recorded.
On or prior to the Closing Date, the Depositor shall deliver to
the
Trustee a copy of the Data Tape Information in electronic,
machine readable
medium in a form mutually acceptable to the Depositor and the
Trustee. Within
ten (10) Business Days of the Closing Date, the Depositor shall
deliver a copy
of the complete Mortgage Loan Schedule to the Trustee.
In the event, with respect to each Mortgage Loan, that such
original
or copy of any document submitted for recordation to the
appropriate public
recording office is not so delivered to the Trustee within 90
days following the
Closing Date, and in the event that the Responsible Party does
not cure such
failure within 30 days of discovery or receipt of written
notification of such
failure from the Depositor, the related Mortgage Loan shall,
upon the request of
the Depositor, be repurchased by the Responsible Party at the
price and in the
manner specified in Section 2.03. The foregoing repurchase
obligation shall not
apply in the event that the Responsible Party cannot deliver
such original or
copy of any document submitted for recordation to the
appropriate public
recording office within the specified period due to a delay
caused by the
recording office in the applicable jurisdiction; provided, that
the Responsible
Party shall instead deliver a recording receipt of such
recording office or, if
such recording receipt is not available, an officer's
certificate of an officer
of the Responsible Party confirming that such document has been
accepted for
recording.
Notwithstanding anything to the contrary contained in this
Section
2.01, in those instances where the public recording office
retains or loses the
original Mortgage or assignment after it has been recorded, the
obligations of
the Responsible Party shall be deemed to have been satisfied
upon delivery by
the Responsible Party to the Trustee prior to the Closing Date
of a copy of such
Mortgage or assignment, as the case may be, certified (such
certification to be
an original thereof) by the public recording office to be a true
and complete
copy of the recorded original thereof.
(c) The Depositor does hereby establish, pursuant to the
further
provisions of this Agreement and the laws of the State of New
York, an express
trust (the "Trust") to be known, for convenience, as "GSAA Home
Equity Trust
2005-2" and Deutsche Bank National Trust Company is hereby
appointed as Trustee
in accordance with the provisions of this Agreement. The parties
hereto
acknowledge and agree that it is the policy and intention of the
Trust to
acquire only Mortgage Loans meeting the requirements set forth
in this
Agreement, including without limitation, the representations and
warranties set
forth in paragraph (49) of Schedule III to this Agreement.
(d) The Trust shall have the capacity, power and authority, and
the
Trustee on behalf of the Trust is hereby authorized, to accept
the sale,
transfer, assignment, set over and conveyance by the Depositor
to the Trust of
all the right, title and interest of the Depositor in and to the
Trust Fund
(including, without limitation, the Mortgage Loans) pursuant to
Section 2.01(a).
Section 2.02 Acceptance by the Trustee of the Mortgage Loans.
The
Trustee acknowledges receipt of the documents identified in the
Initial
Certification in the form annexed hereto as Exhibit E, and
declares that it
holds and will hold such documents and the other documents
delivered to it
pursuant to Section 2.01, and that it holds or will hold such
other assets as
are included in the Trust Fund, in trust for the exclusive use
and benefit of
all present and future Certificateholders. The Trustee
acknowledges that it will
maintain possession of the related Mortgage Notes in the State
of California,
unless otherwise permitted by the Rating Agencies.
Prior to and as a condition to the Closing Date, the Trustee
shall
deliver via facsimile (with original to follow the next Business
Day) to the
Depositor 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), (3), (6) (solely with respect to
the original
months to maturity), (8) (solely as of origination, not as of
the Cut-off Date)
and (13) of the Mortgage Loan Schedule and items (1), (2), (3),
(6) (solely with
respect to the original months to maturity), (8) (solely as of
origination, not
as of the Cut-off Date) and (13) of the Data Tape Information
respecting such
Mortgage Loan is correct; and (iv) each Mortgage Note has been
endorsed as
provided in Section 2.01 of this Agreement. The Trustee shall
not be responsible
to verify the validity, sufficiency or genuineness of any
document in any
Custodial File.
The Trustee shall retain possession and custody of each
Custodial
File in accordance with and subject to the terms and conditions
set forth
herein. The Servicer shall promptly deliver to the Trustee, upon
the execution
or receipt thereof, the originals of such other documents or
instruments
constituting the Custodial File as come into the possession of
the Servicer from
time to time.
The Responsible Party shall deliver to the Servicer copies of
all
trailing documents required to be included in the Custodial File
at the same
time the original or certified copies thereof are delivered to
the Trustee,
including but not limited to such documents as the title
insurance policy and
any other Mortgage Loan documents upon return from the public
recording office.
The documents shall be delivered by the Responsible Party at the
Responsible
Party's expense to the Servicer.
Section 2.03 Representations, Warranties and Covenants of
the
Responsible Party and the Servicer. (a) Countrywide Servicing
and New Century,
severally and not jointly, hereby make the representations and
warranties set
forth in Schedule II and Schedule V hereto, respectively, to the
Depositor, the
Responsible Party and the Trustee as of the Closing Date.
(b) The Responsible Party hereby makes the representations
and
warranties set forth in Schedule III and Schedule IV hereto to
the Depositor,
Countrywide Servicing, New Century and the Trustee.
(c) It is understood and agreed by the Countrywide Servicing,
New
Century and the Responsible Party that the representations and
warranties set
forth in this Section 2.03 shall survive the transfer of the
Mortgage Loans by
the Depositor to the Trustee, and shall inure to the benefit of
the Depositor
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 others.
(d) Within 30 days of the earlier of either discovery by or
notice
to the Responsible Party that any Mortgage Loan does not conform
to the
requirements as determined in the Trustee's review of the
related Custodial File
or within 60 days of the earlier of either discovery by or
notice to the
Responsible Party of any breach of a representation or warranty
set forth in
Section 2.03(b) that materially and adversely affects the value
of any Mortgage
Loan or the interest of the Trustee or the Certificateholders
therein, the
Responsible Party shall use its best efforts to cause to be
remedied a material
defect in a document constituting part of a Mortgage File or
promptly to cure
such breach in all material respects and, if such defect or
breach cannot be
remedied, the Responsible Party shall (i) if such 30 or 60 day
period, as
applicable, expires prior to the second anniversary of the
Closing Date, remove
such related Mortgage Loan (a "Deleted Mortgage Loan") from the
Trust Fund and
substitute in its place a Substitute Mortgage Loan, in the
manner and subject to
the conditions set forth in this Section 2.03, or (ii)
repurchase such Mortgage
Loan at the Repurchase Price; provided, however, that any such
substitution
pursuant to clause (i) above shall not be effected prior to the
delivery to the
Trustee of a Request for Release substantially in the form of
Exhibit J, and the
Mortgage File for any such Substitute Mortgage Loan; provided,
further, that
with respect to any representations and warranties which are
made to the best of
the Responsible Party's knowledge, if it is discovered by the
Responsible Party,
the Servicer, the Depositor or the Trustee, that the substance
of such
representation and warranty is inaccurate and such inaccuracy
materially and
adversely affects the value of the related Mortgage Loans or
materially and
adversely affects the interests of the Trustee or the
Certificateholders therein
or such inaccuracy materially and adversely affects the value of
the related
Mortgage Loan or materially and adversely affects the interests
of the Trustee
or the Certificateholders therein in the case of a
representation and warranty
relating to a particular Mortgage Loan, notwithstanding the
Responsible Party's
lack of knowledge with respect to the substance of such
representation and
warranty, such inaccuracy shall be deemed a breach of the
applicable
representation and warranty. In the event that a breach which
materially and
adversely affects the value of the related Mortgage Loan or
Mortgage Loans, as
the case may be, or the interests of the Trustee or the
Certificateholders
therein, shall involve any representation or warranty set forth
in Schedule IV,
and such breach cannot be cured within 60 days of the earlier of
either
discovery by or notice to the Responsible Party of such breach,
all of the
Mortgage Loans shall, at the Depositor's option, be repurchased
by the
Responsible Party at the Repurchase Price. Notwithstanding the
foregoing, a
breach (x) which causes a Mortgage Loan not to constitute a
"qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code or (y) by
the Responsible
Party of any of the representations and warranties set forth in
paragraphs (28),
(46), (48), (49), (50), (52), (57), (58), (59), (64), (65) or
(66) of Schedule
III, in each case, will be deemed automatically to materially
and adversely
affect the value of such Mortgage Loan and the interests of the
Trustee and
Certificateholders in such Mortgage Loan. In the event that the
Trustee receives
notice of a breach by the Responsible Party of any of the
representations and
warranties set forth in paragraphs (28), (46), (48), (49), (50),
(52), (57),
(58), (59), (64), (65) or (66) of Schedule III, the Trustee
shall give notice of
such breach to the Responsible Party and request the Responsible
Party to
repurchase the Mortgage Loan at the Repurchase Price within
sixty (60) days of
the Responsible Party's receipt of such notice. The Responsible
Party shall
repurchase each such Deleted Mortgage Loan within 30 days of the
earlier of
discovery or receipt of notice with respect to each such Deleted
Mortgage Loan.
(e) With respect to any Substitute Mortgage Loan or Loans,
the
Responsible Party shall deliver to the Trustee for the benefit
of the
Certificateholders the Mortgage Note, the Mortgage, the related
assignment of
the Mortgage, and such other documents and agreements as are
required by Section
2.01, with the Mortgage Note endorsed and the Mortgage assigned
as required by
Section 2.01. No substitution is permitted to be made with
respect to any
Distribution Date after the end of the related Prepayment
Period. Scheduled
Payments due with respect to Substitute Mortgage Loans in the
Due Period of
substitution shall not be part of the Trust Fund and will be
retained by the
Responsible Party on the next succeeding Distribution Date. For
the Due Period
of substitution, distributions to Certificateholders will
include the Scheduled
Payment due on any Deleted Mortgage Loan for such Due Period and
thereafter the
Responsible Party shall be entitled to retain all amounts
received in respect of
such Deleted Mortgage Loan.
(f) In connection with any repurchase or substitution of a
Mortgage
Loan pursuant to this Section 2.03, the Servicer shall, based on
information
provided by the Responsible Party, amend the Mortgage Loan
Schedule for the
benefit of the Certificateholders to reflect the removal of such
Deleted
Mortgage Loan and the substitution of the Substitute Mortgage
Loan or Loans and
the Servicer shall deliver the amended Mortgage Loan Schedule to
the Trustee.
Upon such substitution, the Substitute Mortgage Loan or Loans
shall be subject
to the terms of this Agreement in all respects, and the
Responsible Party shall
be deemed to have made with respect to such Substitute Mortgage
Loan or Loans,
as of the date of substitution, the representations and
warranties made pursuant
to Section 2.03(b) with respect to such Mortgage Loan. Upon any
such
substitution and the deposit to the Collection Account of the
amount required to
be deposited therein in connection with such substitution as
described in the
following paragraph, the Trustee shall release the Mortgage File
held for the
benefit of the Certificateholders relating to such Deleted
Mortgage Loan to the
Responsible Party and shall execute and deliver at the
Responsible Party's
direction such instruments of transfer or assignment prepared by
the Responsible
Party, in each case without recourse, as shall be necessary to
vest title in the
Responsible Party, or its designee, of the Trustee's interest in
any Deleted
Mortgage Loan substituted for pursuant to this Section 2.03.
(g) For any month in which the Responsible Party substitutes one
or
more Substitute Mortgage Loans for one or more Deleted Mortgage
Loans, the
Servicer will determine the amount (if any) by which the
aggregate unpaid
principal balance of all such Substitute Mortgage Loans as of
the date of
substitution is less than the aggregate Stated Principal Balance
of all such
Deleted Mortgage Loans (after application of the scheduled
principal portion of
the Scheduled Payments due in the Due Period of substitution).
The amount of
such shortage (the "Substitution Adjustment Amount") plus an
amount equal to the
aggregate of any unreimbursed Advances with respect to such
Deleted Mortgage
Loans shall be remitted by the Responsible Party to the Servicer
for deposit
into the Collection Account on or before the next Remittance
Date.
(h) In addition to such repurchase and/or substitution
obligations,
the Responsible Party shall indemnify the Depositor, any of its
Affiliates, the
Servicer 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 the Purchase Agreement or this Agreement.
(i) In the event that the Responsible Party shall have
repurchased a
Mortgage Loan, the Repurchase Price therefor shall be deposited
in the
Collection Account pursuant to Section 3.10 on or before the
next Remittance
Date and upon such deposit of the Repurchase Price and receipt
of a Request for
Release in the form of Exhibit J hereto, the Trustee shall
release the related
Custodial File held for the benefit of the Certificateholders to
such Person as
directed by the Servicer, and the Trustee shall execute and
deliver at such
Person's direction such instruments of transfer or assignment
prepared by such
Person, in each case without recourse, as shall be necessary to
transfer title
from the Trustee. It is understood and agreed that the
obligation under this
Agreement of any Person to cure, repurchase or replace any
Mortgage Loan as to
which a breach has occurred and is continuing shall constitute
the sole remedy
against such Persons respecting such breach available to
Certificateholders, the
Depositor, the Servicer or the Trustee on their behalf.
The representations and warranties made pursuant to this
Section
2.03 shall survive delivery of the respective Custodial Files to
the Trustee for
the benefit of the Certificateholders.
Section 2.04 Non-Qualified Mortgages.
(a) Notwithstanding any contrary provision of this Agreement,
no
substitution pursuant to Section 2.03 shall be made more than
two years after
the Closing Date.
(b) Upon discovery by the Depositor, the Responsible Party,
the
Servicer or the Trustee, 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 December
2034, which is the Distribution Date following the latest
Mortgage Loan maturity
date. Amounts paid to the Class X Certificates (prior to any
reduction for any
Basis Risk Payment) shall be deemed paid from the Upper Tier
REMIC in respect of
the Class X Interest to the holders of the Class X Certificates
prior to
distribution of Basis Risk Payments to the Principal
Certificates.
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
parties hereto, constitutes or will constitute the legal, valid
and binding
agreement of the Depositor, enforceable against the Depositor in
accordance with
its terms, except as such enforcement may be limited by
bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting the
rights of creditors generally, and by general equity principles
(regardless of
whether such enforcement is considered in a proceeding in equity
or at law);
(d) No consent, approval, authorization or order of or
registration
or filing with, or notice to, any governmental authority or
court is required
for the execution, delivery and performance of or compliance by
the Depositor
with this Agreement or the consummation by the Depositor of any
of the
transactions contemplated hereby, except as have been made on or
prior to the
Closing Date;
(e) None of the execution and delivery of this Agreement,
the
consummation of the transactions contemplated hereby or thereby,
or the
fulfillment of or compliance with the terms and conditions of
this Agreement,
(i) conflicts or will conflict with or results or will result in
a breach of, or
constitutes or will constitute a default or results or will
result in an
acceleration under (A) the charter or bylaws of the Depositor,
or (B) of any
term, condition or provision of any material indenture, deed of
trust, contract
or other agreement or instrument to which the Depositor or any
of its
subsidiaries is a party or by which it or any of its
subsidiaries is bound; (ii)
results or will result in a violation of any law, rule,
regulation, order,
judgment or decree applicable to the Depositor of any court or
governmental
authority having jurisdiction over the Depositor or its
subsidiaries; or (iii)
results in the creation or imposition of any lien, charge or
encumbrance which
would have a material adverse effect upon the Mortgage Loans or
any documents or
instruments evidencing or securing the Mortgage Loans;
(f) There are no actions, suits or proceedings before or against
or
investigations of, the Depositor pending, or to the knowledge of
the Depositor,
threatened, before any court, administrative agency or other
tribunal, and no
notice of any such action, which, in the Depositor's reasonable
judgment, might
materially and adversely affect the performance by the Depositor
of its
obligations under this Agreement, or the validity or
enforceability of this
Agreement;
(g) The Depositor is not in default with respect to any order
or
decree of any court or any order, regulation or demand of any
federal, state,
municipal or governmental agency that may materially and
adversely affect its
performance hereunder; and
(h) Immediately prior to the transfer and assignment by the
Depositor to the Trustee on the Closing Date, the Depositor had
good title to,
and was the sole owner of each Mortgage Loan, free of any
interest of any other
Person, and the Depositor has transferred all right, title and
interest in each
Mortgage Loan to the Trustee. The transfer of each Mortgage Note
and each
Mortgage as and in the manner contemplated by this Agreement is
sufficient
either (i) fully to transfer to the Trustee, for the benefit of
the
Certificateholders, all right, title, and interest of the
Depositor thereto as
note holder and mortgagee or (ii) to grant to the Trustee, for
the benefit of
the Certificateholders, the security interest referred to in
Section 10.04.
It is understood and agreed that the representations, warranties
and
covenants set forth in this Section 2.07 shall survive delivery
of the
respective Custodial Files to the Trustee or to a custodian, as
the case may be,
and shall inure to the benefit of the Trustee.
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicer to Service Mortgage Loans. (a) For and
on
behalf of the Certificateholders, the Servicer shall service and
administer the
Mortgage Loans in accordance with the terms of this Agreement
and the respective
Mortgage Loans and, to the extent consistent with such terms, in
compliance with
all applicable federal, state and local laws, and in the same
manner in which it
services and administers similar mortgage loans for its own
portfolio, giving
due consideration to customary and usual standards of practice
of mortgage
lenders and loan servicers administering similar mortgage loans
but without
regard to:
(i) any relationship that the Servicer, any Subservicer or
any
Affiliate of the Servicer or any Subservicer may have with the
related
Mortgagor;
(ii) the ownership or non-ownership of any Certificate by
the
Servicer or any Affiliate of the Servicer;
(iii) the Servicer's obligation to make P&I Advances or
Servicing
Advances; or
(iv) the Servicer's or any Subservicer's right to receive
compensation for its services hereunder or with respect to any
particular
transaction.
To the extent consistent with the foregoing, the Servicer shall
seek
to maximize the timely and complete recovery of principal and
interest on the
Mortgage Notes. Subject only to the above-described servicing
standards and the
terms of this Agreement and of the respective Mortgage Loans,
the Servicer shall
have full power and authority, acting alone or through
Subservicers as provided
in Section 3.02, to do or cause to be done any and all things in
connection with
such servicing and administration which it may deem necessary or
desirable.
Without limiting the generality of the foregoing, the Servicer
in its own name
or in the name of a Subservicer is hereby authorized and
empowered by the
Trustee when the Servicer believes it appropriate in its best
judgment in
accordance with the Accepted Servicing Practices set forth
above, to execute and
deliver any and all instruments of satisfaction or cancellation,
or of partial
or full release or discharge, and all other comparable
instruments, with respect
to the Mortgage Loans and the Mortgaged Properties and to
institute foreclosure
proceedings or obtain a deed-in-lieu of foreclosure so as to
convert the
ownership of such properties, and to hold or cause to be held
title to such
properties, on behalf of the Trustee and in the name of the
Trust. The Servicer
shall service and administer the Mortgage Loans in accordance
with applicable
state and federal law and shall provide to the Mortgagors any
reports required
to be provided to them thereby. The Servicer shall also comply
in the
performance of this Agreement with all reasonable rules and
requirements of each
insurer under any standard hazard insurance policy. Subject to
Section 3.16, the
Trustee shall execute, at the written request of the Servicer,
and furnish to
the Servicer and any Subservicer such documents as are necessary
or appropriate
to enable the Servicer or any Subservicer to carry out their
servicing and
administrative duties hereunder, and the Trustee hereby grants
to the Servicer,
and this Agreement shall constitute, a power of attorney to
carry out such
duties including a power of attorney to take title to Mortgaged
Properties after
foreclosure on behalf of the Trustee and in the name of the
Trust. The Trustee
shall execute a power of attorney in favor of the Servicer for
the purposes
described herein to the extent necessary or desirable to enable
the Servicer to
perform its duties hereunder. The Trustee shall not be liable
for the actions of
the Servicer or any Subservicers under such powers of
attorney.
(b) Subject to Section 3.09(b), in accordance with the standards
of
the preceding paragraph, the Servicer shall advance or cause to
be advanced
funds as necessary for the purpose of effecting the timely
payment of taxes and
assessments on the Mortgaged Properties, which advances shall be
Servicing
Advances reimbursable in the first instance from related
collections from the
Mortgagors pursuant to Section 3.09(b), and further as provided
in Section 3.11.
Any cost incurred by the Servicer or by Subservicers in
effecting the timely
payment of taxes and assessments on a Mortgaged Property shall
not be added to
the unpaid principal balance of the related Mortgage Loan,
notwithstanding that
the terms of such Mortgage Loan so permit.
(c) Notwithstanding anything in this Agreement to the contrary,
the
Servicer may not make any future advances with respect to a
Mortgage Loan
(except as provided in Section 4.01) and the Servicer shall not
(i) permit any
modification with respect to any Mortgage Loan that would change
the Mortgage
Interest Rate, reduce or increase the principal balance (except
for reductions
resulting from actual payments of principal) or change the final
maturity date
on such Mortgage Loan (except for (A) a reduction of interest
payments resulting
from the application of the Servicemembers Civil Relief Act or
any similar state
statutes or (B) as provided in Section 3.07, if the Mortgagor is
in default with
respect to the Mortgage Loan or such default is, in the judgment
of the
Servicer, reasonably foreseeable or (ii) permit any
modification, waiver or
amendment of any term of any Mortgage Loan that would both (A)
effect an
exchange or reissuance of such Mortgage Loan under Section 1001
of the Code (or
final, temporary or proposed Treasury regulations promulgated
thereunder) and
(B) cause either Trust REMIC to fail to qualify as a REMIC under
the Code or the
imposition of any tax on "prohibited transactions" or
"contributions after the
Start-up day" under the REMIC Provisions, or (iii) except as
provided in Section
3.07(a), waive any Prepayment Premiums.
(d) The Servicer may delegate its responsibilities under
this
Agreement; provided, however, that no such delegation shall
release the Servicer
from the responsibilities or liabilities arising under this
Agreement.
(e) Prior to the Servicing Transfer Date, Countrywide
Servicing
shall have no obligation to perform its duties as Servicer under
this Agreement.
Section 3.02 Subservicing Agreements between the Servicer
and
Subservicers. (a) The Servicer may enter into subservicing
agreements with
subservicers (each, a "Subservicer"), for the servicing and
administration of
the Mortgage Loans ("Subservicing Agreements").
(b) Each Subservicer shall be (i) authorized to transact
business in
the state or states in which the related Mortgaged Properties it
is to service
are situated, if and to the extent required by applicable law to
enable the
Subservicer to perform its obligations hereunder and under the
Subservicing
Agreement, (ii) an institution approved as a mortgage loan
originator by the
Federal Housing Administration or an institution that has
deposit accounts
insured by the FDIC and (iii) a Freddie Mac or Fannie Mae
approved mortgage
servicer. Each Subservicing Agreement must impose on the
Subservicer
requirements conforming to the provisions set forth in Section
3.08 and provide
for servicing of the Mortgage Loans consistent with the terms of
this Agreement.
The Servicer will examine each Subservicing Agreement and will
be familiar with
the terms thereof. The terms of any Subservicing Agreement will
not be
inconsistent with any of the provisions of this Agreement. The
Servicer and the
Subservicers may enter into and make amendments to the
Subservicing Agreements
or enter into different forms of Subservicing Agreements;
provided, however,
that any such amendments or different forms shall be consistent
with and not
violate the provisions of this Agreement, and that no such
amendment or
different form shall be made or entered into which could be
reasonably expected
to be materially adverse to the interests of the Trustee,
without the consent of
the Trustee. Any variation without the consent of the Trustee
from the
provisions set forth in Section 3.08 relating to insurance or
priority
requirements of Subservicing Accounts, or credits and charges to
the
Subservicing Accounts or the timing and amount of remittances by
the
Subservicers to the Servicer, are conclusively deemed to be
inconsistent with
this Agreement and therefore prohibited. The Servicer shall
deliver to the
Trustee and the Depositor copies of all Subservicing Agreements,
and any
amendments or modifications thereof, promptly upon the
Servicer's execution and
delivery of such instruments.
(c) As part of its servicing activities hereunder, the
Servicer
(except as otherwise provided in the last sentence of this
paragraph), for the
benefit of the Trustee, shall enforce the obligations of each
Subservicer under
the related Subservicing Agreement, including, without
limitation, any
obligation to make advances in respect of delinquent payments as
required by a
Subservicing Agreement. Such enforcement, including, without
limitation, the
legal prosecution of claims, termination of Subservicing
Agreements, and the
pursuit of other appropriate remedies, shall be in such form and
carried out to
such an extent and at such time as the Servicer, in its good
faith business
judgment, would require were it the owner of the related
Mortgage Loans. The
Servicer shall pay the costs of such enforcement at its own
expense, and shall
be reimbursed therefor only (i) from a general recovery
resulting from such
enforcement, to the extent, if any, that such recovery exceeds
all amounts due
in respect of the related Mortgage Loans or (ii) from a specific
recovery of
costs, expenses or attorneys' fees against the party against
whom such
enforcement is directed.
Section 3.03 Successor Subservicers. The Servicer shall be
entitled
to terminate any Subservicing Agreement and the rights and
obligations of any
Subservicer pursuant to any Subservicing Agreement in accordance
with the terms
and conditions of such Subservicing Agreement. In the event of
termination of
any Subservicer, all servicing obligations of such Subservicer
shall be assumed
simultaneously by the Servicer without any act or deed on the
part of such
Subservicer or the Servicer, and the Servicer either shall
service directly the
related Mortgage Loans or shall enter into a Subservicing
Agreement with a
successor Subservicer which qualifies under Section 3.02.
Any Subservicing Agreement shall include the provision that
such
agreement may be immediately terminated by the Depositor or the
Trustee without
fee, in accordance with the terms of this Agreement, in the
event that the
Servicer shall, for any reason, no longer be the Servicer
(including termination
due to an Event of Default).
Section 3.04 Liability of the Servicer. Notwithstanding any
Subservicing Agreement, any of the provisions of this Agreement
relating to
agreements or arrangements between the Servicer and a
Subservicer or reference
to actions taken through a Subservicer or otherwise, the
Servicer shall remain
obligated and primarily liable to the Trustee for the servicing
and
administering of the Mortgage Loans in accordance with the
provisions of Section
3.01 without diminution of such obligation or liability by
virtue of such
Subservicing Agreements or arrangements or by virtue of
indemnification from the
Subservicer and to the same extent and under the same terms and
conditions as if
the Servicer alone were servicing and administering such
Mortgage Loans. The
Servicer shall be entitled to enter into any agreement with a
Subservicer for
indemnification of the Servicer by such Subservicer and nothing
contained in
this Agreement shall be deemed to limit or modify such
indemnification.
Section 3.05 No Contractual Relationship between Subservicers
and
the Trustee. Any Subservicing Agreement that may be entered into
and any
transactions or services relating to the Mortgage Loans
involving a Subservicer
in its capacity as such shall be deemed to be between the
Subservicer and the
Servicer alone, and the Trustee (or any successor Servicer)
shall not be deemed
a party thereto and shall have no claims, rights, obligations,
duties or
liabilities with respect to the Subservicer except as set forth
in Section 3.06.
The Servicer shall be solely liable for all fees owed by it to
any Subservicer,
irrespective of whether the Servicer's compensation pursuant to
this Agreement
is sufficient to pay such fees.
Section 3.06 Assumption or Termination of Subservicing
Agreements by
Trustee. In the event the Servicer at any time shall for any
reason no longer be
the Servicer (including by reason of the occurrence of an Event
of Default), the
Trustee, or its designee, or the successor Servicer if the
successor Servicer is
not the Trustee, shall thereupon assume all of the rights and
obligations of the
Servicer under each Subservicing Agreement that the Servicer may
have entered
into, with copies thereof provided to the Trustee prior to the
Trustee assuming
such rights and obligations, unless the Trustee elects to
terminate any
Subservicing Agreement in accordance with its terms as provided
in Section 3.03.
Upon such assumption, the Trustee, its designee or the
successor
servicer shall be deemed, subject to Section 3.03, to have
assumed all of the
Servicer's interest therein and to have replaced the Servicer as
a party to each
Subservicing Agreement to the same extent as if each
Subservicing Agreement had
been assigned to the assuming party, except that (i) the
Servicer shall not
thereby be relieved of any liability or obligations under any
Subservicing
Agreement that arose before it ceased to be the Servicer and
(ii) none of the
Depositor, the Trustee, their designees or any successor
Servicer shall be
deemed to have assumed any liability or obligation of the
Servicer that arose
before it ceased to be the Servicer.
The Servicer at its expense shall, upon request of the
Trustee,
deliver to the assuming party all documents and records relating
to each
Subservicing Agreement and the Mortgage Loans then being
serviced and an
accounting of amounts collected and held by or on behalf of it,
and otherwise
use its best efforts to effect the orderly and efficient
transfer of the
Subservicing Agreements to the assuming party.
Section 3.07 Collection of Certain Mortgage Loan Payments. (a)
The
Servicer shall make reasonable efforts to collect all payments
called for under
the terms and provisions of the Mortgage Loans, and shall, to
the extent such
procedures shall be consistent with this Agreement and the terms
and provisions
of any applicable Insurance Policies, follow such collection
procedures as it
would follow with respect to mortgage loans comparable to the
Mortgage Loans and
held for its own account. Consistent with the foregoing and
Accepted Servicing
Practices, the Servicer may (i) waive any late payment charge
or, if applicable,
any penalty interest, or (ii) extend the due dates for the
Scheduled Payments
due on a Mortgage Note for a period of not greater than 180
days; provided, that
any extension pursuant to clause (ii) above shall not affect the
amortization
schedule of any Mortgage Loan for purposes of any computation
hereunder, except
as provided below. In the event of any such arrangement pursuant
to clause (ii)
above, the Servicer shall make timely advances on such Mortgage
Loan during such
extension pursuant to Section 4.01 and in accordance with the
amortization
schedule of such Mortgage Loan without modification thereof by
reason of such
arrangements, subject to Section 4.01(d) pursuant to which the
Servicer shall
not be required to make any such advances that are
Nonrecoverable P&I Advances.
Notwithstanding the foregoing, in the event that any Mortgage
Loan is in default
or, in the judgment of the Servicer, such default is reasonably
foreseeable, the
Servicer, consistent with the standards set forth in Section
3.01, may also
waive, modify or vary any term of such Mortgage Loan (including
modifications
that would change the Mortgage Interest Rate, forgive the
payment of principal
or interest, extend the final maturity date of such Mortgage
Loan or waive, in
whole or in part, a Prepayment Premium), accept payment from the
related
Mortgagor of an amount less than the Stated Principal Balance in
final
satisfaction of such Mortgage Loan, or consent to the
postponement of strict
compliance with any such term or otherwise grant indulgence to
any Mortgagor
(any and all such waivers, modifications, variances, forgiveness
of principal or
interest, postponements, or indulgences collectively referred to
herein as
"Forbearance"); provided, however, that the Servicer's approval
of a
modification of a Due Date shall not be considered a
modification for purposes
of this sentence; provided, further, that the final maturity
date of any
Mortgage Loan may not be extended beyond the Final Scheduled
Distribution Date
for the Principal Certificates. The Servicer's analysis
supporting any
Forbearance and the conclusion that any Forbearance meets the
standards of
Section 3.01 shall be reflected in writing in the Servicing File
or on the
Servicer's servicing records. In addition, notwithstanding the
foregoing, the
Servicer may also waive (or permit a Subservicer to waive), in
whole or in part,
a Prepayment Premium if such waiver would, in the reasonable
judgment of the
Servicer, maximize recovery on the related Mortgage Loan, or if
such Prepayment
Premium is (i) not permitted to be collected by applicable law
or the collection
thereof would be considered "predatory" pursuant to written
guidance published
by any applicable federal, state or local regulatory authority
having
jurisdiction over such matters, or (ii) the enforceability
thereof is limited
(1) by bankruptcy, insolvency, moratorium, receivership or other
similar laws
relating to creditor's rights or (2) due to acceleration in
connection with a
foreclosure or other involuntary payment. If a Prepayment
Premium is waived
other than as permitted in this Section 3.07(a), then the
Servicer is required
to pay the amount of such waived Prepayment Premium, for the
benefit of the
Holders of the Class P Certificates, by depositing such amount
into the
Collection Account together with and at the time that the amount
prepaid on the
related Mortgage Loan is required to be deposited into the
Collection Account;
provided, however, that the Servicer shall not have an
obligation to pay the
amount of any uncollected Prepayment Premium if the failure to
collect such
amount is in the direct result of inaccurate or incomplete
information on the
Mortgage Loan Schedule in effect at such time.
(b) The Servicer shall give notice to the Trustee, each
Rating
Agency and the Depositor of any proposed change of the location
of the
Collection Account within a reasonable period of time prior to
any change
thereof.
Section 3.08 Subservicing Accounts. In those cases where a
Subservicer is servicing a Mortgage Loan pursuant to a
Subservicing Agreement,
the Subservicer will be required to establish and maintain one
or more accounts
(collectively, the "Subservicing Account"). The Subservicing
Account shall be an
Eligible Account and shall otherwise be acceptable to the
Servicer. The
Subservicer shall deposit in the clearing account (which account
must be an
Eligible Account) in which it customarily deposits payments and
collections on
mortgage loans in connection with its mortgage loan servicing
activities on a
daily basis, and in no event more than one Business Day after
the Subservicer's
receipt thereof, all proceeds of Mortgage Loans received by the
Subservicer less
its servicing compensation to the extent permitted by the
Subservicing
Agreement, and shall thereafter deposit such amounts in the
Subservicing
Account, in no event more than two Business Days after the
deposit of such funds
into the clearing account. The Subservicer shall thereafter
deposit such
proceeds in the Collection Account or remit such proceeds to the
Servicer for
deposit in the Collection Account not later than two Business
Days after the
deposit of such amounts in the Subservicing Account. For
purposes of this
Agreement, the Servicer shall be deemed to have received
payments on the
Mortgage Loans when the Subservicer receives such payments.
Section 3.09 Collection of Taxes, Assessments and Similar
Items;
Escrow Accounts. (a) The Servicer shall ensure that each of the
Mortgage Loans
shall be covered by a paid-in-full, life-of-the-loan tax service
contract in
effect with respect to each Mortgage Loan (each, a "Tax Service
Contract");
provided, that the Responsible Party transferred a Tax Service
Contract to the
Servicer. Each Tax Service Contract shall be assigned to the
Trustee, or its
designee, at the Servicer's expense in the event that the
Servicer is terminated
as Servicer of the related Mortgage Loan.
(b) To the extent that the services described in this paragraph
(b)
are not otherwise provided pursuant to the Tax Service Contracts
described in
paragraph (a) hereof, the Servicer undertakes to perform such
functions. To the
extent the related Mortgage Loan provides for Escrow Payments,
the Servicer
shall establish and maintain, or cause to be established and
maintained, one or
more accounts (the "Escrow Accounts"), which shall be Eligible
Accounts. The
Servicer shall deposit in the clearing account (which account
must be an
Eligible Account) in which it customarily deposits payments and
collections on
mortgage loans in connection with its mortgage loan servicing
activities on a
daily basis, and in no event more than one Business Day after
the Servicer's
receipt thereof, all collections from the Mortgagors (or related
advances from
Subservicers) for the payment of taxes, assessments, hazard
insurance premiums
and comparable items for the account of the Mortgagors ("Escrow
Payments")
collected on account of the Mortgage Loans and shall thereafter
deposit such
Escrow Payments in the Escrow Accounts, in no event more than
two Business Days
after the deposit of such funds in the clearing account, for the
purpose of
effecting the payment of any such items as required under the
terms of this
Agreement. Withdrawals of amounts from an Escrow Account may be
made only to (i)
effect payment of taxes, assessments, fire and hazard insurance
premiums,
condominium charges and comparable items; (ii) reimburse the
Servicer (or a
Subservicer to the extent provided in the related Subservicing
Agreement) out of
related collections for any advances made pursuant to Section
3.01 (with respect
to taxes and assessments) and Section 3.13 (with respect to
hazard insurance);
(iii) refund to Mortgagors any sums as may be determined to be
overages; (iv)
apply to the restoration or repair of the Mortgaged Property in
accordance with
the Section 3.13; (v) transfer to the Collection Account an
application to
reduce the principal balance of the Mortgage Loan in accordance
with the terms
of the related Mortgage and Mortgage Note; (vi) pay interest to
the Servicer
and, if required and as described below, to Mortgagors on
balances in the Escrow
Account; (vii) clear and terminate the Escrow Account at the
termination of the
Servicer's obligations and responsibilities in respect of the
Mortgage Loans
under this Agreement; or (viii) recover amounts deposited in
error or for which
amounts previously deposited are returned due to a "not
sufficient funds" or
other denial of payment by the related Mortgagor's banking
institution. As part
of its servicing duties, the Servicer or Subservicers shall pay
to the
Mortgagors interest on funds in Escrow Accounts, to the extent
required by law
and, to the extent that interest earned on funds in the Escrow
Accounts is
insufficient, to pay such interest from its or their own funds,
without any
reimbursement therefor. To the extent that a Mortgage does not
provide for
Escrow Payments, the Servicer shall use commercially reasonable
efforts
consistent with Accepted Servicing Practices to determine
whether any such
payments are made by the Mortgagor in a manner and at a time
that avoids the
loss of the Mortgaged Property due to a tax sale or the
foreclosure as a result
of a tax lien. The Servicer assumes full responsibility for the
payment of all
such bills within such time and shall effect payments of all
such bills
irrespective of the Mortgagor's faithful performance in the
payment of same or
the making of the Escrow Payments and shall make advances from
its own funds to
effect such payments; provided, however, that such advances are
deemed to be
Servicing Advances.
Section 3.10 Collection Account. (a) On behalf of the Trustee,
the
Servicer shall establish and maintain, or cause to be
established and
maintained, one or more Eligible Accounts (such account or
accounts, the
"Collection Account"), held in trust for the benefit of the
Trustee. On behalf
of the Trustee, the Servicer shall deposit or cause to be
deposited in the
clearing account (which account must be an Eligible Account) in
which it
customarily deposits payments and collections on mortgage loans
in connection
with its mortgage loan servicing activities on a daily basis,
and in no event
more than one Business Day after the Servicer's receipt thereof,
and shall
thereafter deposit in the Collection Account, in no event more
than two Business
Days after the deposit of such funds into the clearing account,
as and when
received or as otherwise required hereunder, the following
payments and
collections received or made by it subsequent to the Cut-off
Date (other than in
respect of principal or interest on the related Mortgage Loans
due on or before
the Cut-off Date), or payments (other than Principal
Prepayments) received by it
on or prior to the Cut-off Date but allocable to a Due Period
subsequent
thereto:
(i) all payments on account of principal, including
Principal
Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest (net of the related
Servicing Fee) on each Mortgage Loan;
(iii) all Insurance Proceeds and Condemnation Proceeds to the
extent
such Insurance Proceeds and Condemnation Proceeds are not to be
applied to
the restoration of the related Mortgaged Property or released to
the
related Mortgagor in accordance with the express requirements of
law or in
accordance with prudent and customary servicing practices and
Liquidation
Proceeds;
(iv) any amounts required to be deposited pursuant to Section
3.12
in connection with any losses realized on Permitted Investments
with
respect to funds held in the Collection Account;
(v) any amounts required to be deposited by the Servicer
pursuant to
the second paragraph of Section 3.13(a) in respect of any
blanket policy
deductibles;
(vi) all proceeds of any Mortgage Loan repurchased or purchased
in
accordance with this Agreement; and
(vii) all Prepayment Premiums collected by the Servicer.
The foregoing requirements for deposit in the Collection
Account
shall be exclusive, it being understood and agreed that, without
limiting the
generality of the foregoing, payments in the nature of late
payment charges, NSF
fees, reconveyance fees, assumption fees and other similar fees
and charges need
not be deposited by the Servicer in the Collection Account and
shall, upon
collection, belong to the Servicer as additional compensation
for its servicing
activities. In the event the Servicer shall deposit in the
Collection Account
any amount not required to be deposited therein, it may at any
time withdraw
such amount from the Collection Account, any provision herein to
the contrary
notwithstanding.
(b) Funds in the Collection Account may be invested in
Permitted
Investments in accordance with the provisions set forth in
Section 3.12. The
Servicer shall give notice to the Trustee and the Depositor of
the location of
the Collection Account maintained by it when established and
prior to any change
thereof.
Section 3.11 Withdrawals from the Collection Account. (a)
The
Servicer shall, from time to time, make withdrawals from the
Collection Account
for any of the following purposes or as described in Section
4.01:
(i) on or prior to the Remittance Date, to remit to the Trustee
(A)
the Trustee Fee with respect to such Distribution Date and (B)
all
Available Funds in respect of the related Distribution Date
together with
all amounts representing Prepayment Premiums from the Mortgage
Loans
received during the related Prepayment Period;
(ii) to reimburse the Servicer for P&I Advances, but only to
the
extent of amounts received which represent Late Collections (net
of the
related Servicing Fees) of Scheduled Payments on Mortgage Loans
with
respect to which such P&I Advances were made in accordance
with the
provisions of Section 4.01;
(iii) to pay the Servicer or any Subservicer (A) any unpaid
Servicing Fees or (B) any unreimbursed Servicing Advances with
respect to
each Mortgage Loan, but only to the extent of any Late
Collections,
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds
or other
amounts as may be collected by the Servicer from a Mortgagor, or
otherwise
received with respect to such Mortgage Loan (or the related REO
Property);
(iv) to pay to the Servicer as servicing compensation (in
addition
to the Servicing Fee) on the Remittance Date any interest or
investment
income earned on funds deposited in the Collection Account;
(v) to pay to the Responsible Party, with respect to each
Mortgage
Loan that has previously been repurchased or replaced pursuant
to this
Agreement all amounts received thereon subsequent to the date of
purchase
or substitution, as the case may be;
(vi) to reimburse the Servicer for (A) any P&I Advance or
Servicing
Advance previously made which the Servicer has determined to be
a
Nonrecoverable P&I Advance or Nonrecoverable Servicing
Advance in
accordance with the provisions of Section 4.01 and (B) any
unpaid
Servicing Fees to the extent not recoverable from Liquidation
Proceeds,
Insurance Proceeds or other amounts received with respect to the
related
Mortgage Loan under Section 3.11(a)(iii);
(vii) to pay, or to reimburse the Servicer for advances in
respect
of, expenses incurred in connection with any Mortgage Loan
pursuant to
Section 3.15;
(viii) to reimburse the Servicer, the Depositor or the Trustee
for
expenses incurred by or reimbursable to the Servicer, the
Depositor or the
Trustee, as the case may be, pursuant to Section 6.03, Section
7.02 or
Section 8.05;
(ix) to reimburse the Servicer or the Trustee, as the case may
be,
for expenses reasonably incurred in respect of the breach or
defect giving
rise to the repurchase obligation under Section 2.03 of this
Agreement
that were included in the Repurchase Price of the Mortgage Loan,
including
any expenses arising out of the enforcement of the repurchase
obligation,
to the extent not otherwise paid pursuant to the terms
hereof;
(x) to withdraw any amounts deposited in the Collection Account
in
error or for which amounts previously deposited are returned due
to a "not
sufficient funds" or other denial of payment by the related
Mortgagor's
banking institution;
(xi) to withdraw any amounts held in the Collection Account and
not
required to be remitted to the Trustee on the Remittance Date
occurring in
the month in which such amounts are deposited into the
Collection Account,
to reimburse the Servicer for unreimbursed P&I Advances;
(xii) to invest funds in Permitted Investments in accordance
with
Section 3.12; and
(xiii) to clear and terminate the Collection Account upon
termination of this Agreement.
(xiv) to the extent that the Servicer does not timely make
the
remittance referred to in clause (i) above, the Servicer shall
pay the
Trustee for the account of the Trustee interest on any amount
not timely
remitted at the prime rate, from and including the applicable
Remittance
Date to but excluding the date such remittance is actually
made.
(b) The Servicer shall keep and maintain separate accounting, on
a
Mortgage Loan by Mortgage Loan basis, for the purpose of
justifying any
withdrawal from the Collection Account, to the extent held by or
on behalf of
it, pursuant to subclauses (a)(ii), (iii), (iv), (v), (vi),
(vii), (viii) and
(ix) above. The Servicer shall provide written notification to
the Depositor, on
or prior to the next succeeding Remittance Date, upon making any
withdrawals
from the Collection Account pursuant to subclause (a)(vi)
above.
Section 3.12 Investment of Funds in the Collection Account and
the
Distribution Account. (a) The Servicer may invest the funds in
the Collection
Account and the Trustee may invest funds in the Distribution
Account during the
Trustee Float Period, and shall (except during the Trustee Float
Period), invest
such funds in the Distribution Account at the direction of the
Depositor (for
purposes of this Section 3.12, each of the Collection Account
and Distribution
Account are referred to as an "Investment Account"), in one or
more Permitted
Investments bearing interest or sold at a discount, and
maturing, unless payable
on demand no later than the Business Day on which such funds are
required to be
withdrawn from such account pursuant to this Agreement (except
for investments
made at the Depositor's direction, which shall mature no later
than the Business
Day immediately preceding the date of the required withdrawal).
All such
Permitted Investments shall be held to maturity, unless payable
on demand. Any
investment of funds in an Investment Account shall be made in
the name of the
Trustee. The Trustee shall be entitled to sole possession
(except with respect
to investment direction of funds held in the related Account and
any income and
gain realized thereon in any Account other than the Distribution
Account during
the Trustee Float Period) over each such investment, and any
certificate or
other instrument evidencing any such investment shall be
delivered directly to
the Trustee or its agent, together with any document of transfer
necessary to
transfer title to such investment to the Trustee. In the event
amounts on
deposit in an Investment Account are at any time invested in a
Permitted
Investment payable on demand, the Trustee may:
(x) consistent with any notice required to be given
thereunder,
demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an
amount equal to the lesser of (1) all amounts then payable
thereunder and (2) the amount required to be withdrawn on
such
date; and
(y) demand payment of all amounts due thereunder that such
Permitted Investment would not constitute a Permitted
Investment in respect of funds thereafter on deposit in the
Investment Account.
(b) All income and gain realized from the investment of
funds
deposited in the Collection Account and Escrow Account held by
or on behalf of
the Servicer, shall be for the benefit of the Servicer and shall
be subject to
its withdrawal in the manner set forth in Section 3.11. Any
other benefit
derived from the Collection Account and Escrow Account
associated with the
receipt, disbursement and accumulation of principal, interest,
taxes, hazard
insurance, mortgage blanket insurance, and like sources, shall
accrue to the
benefit of the Servicer, except that the Servicer shall not
realize any economic
benefit from any forced charging of services. The Servicer shall
deposit in the
Collection Account and the Escrow Account the amount of any loss
of principal
incurred in respect of any such Permitted Investment made with
funds in such
accounts immediately upon realization of such loss.
(c) All income and gain realized from the investment of
funds
deposited in the Distribution Account held by the Trustee, shall
be for the
benefit of the Depositor (except for any income or gain realized
from the
investment of funds on deposit in the Distribution Account
during the Trustee
Float Period, which shall be for the benefit of the Trustee).
The Depositor
shall deposit in the Distribution Account (except with respect
to the Trustee
Float Period, in which case the Trustee shall so deposit) the
amount of any loss
of principal incurred in respect of any such Permitted
Investment made with
funds in such accounts immediately upon realization of such
loss.
(d) Except as otherwise expressly provided in this Agreement, if
any
default occurs in the making of a payment due under any
Permitted Investment, or
if a default occurs in any other performance required under any
Permitted
Investment, the Trustee shall take such action as may be
appropriate to enforce
such payment or performance, including the institution and
prosecution of
appropriate proceedings.
(e) The Trustee or its Affiliates are permitted to receive
additional compensation that could be deemed to be in the
Trustee's economic
self-interest for (i) serving as investment adviser,
administrator, shareholder,
servicing agent, custodian or sub-custodian with respect to
certain of the
Permitted Investments, (ii) using Affiliates to effect
transactions in certain
Permitted Investments and (iii) effecting transactions in
certain Permitted
Investments.
(f) The Trustee shall not be liable for the amount of any
loss
incurred with respect of any investment (except that during the
Trustee Float
Period, it will be responsible for reimbursing the Trust for
such loss) or lack
of investment of funds held in any Investment Account or the
Distribution
Account if made in accordance with this Section 3.12.
Section 3.13 Maintenance of Hazard Insurance, Errors and
Omissions
and Fidelity Coverage. (a) The Servicer shall cause to be
maintained for each
Mortgage Loan fire insurance with extended coverage on the
related Mortgaged
Property in an amount which is at least equal to the least of
(i) the
outstanding principal balance of such Mortgage Loan, (ii) the
amount necessary
to fully compensate for any damage or loss to the improvements
that are a part
of such property on a replacement cost basis, (iii) the maximum
insurable value
of the improvements which are a part of such Mortgaged Property
and (iv) the
amount determined by applicable federal or state law, in each
case in an amount
not less than such amount as is necessary to avoid the
application of any
coinsurance clause contained in the related hazard insurance
policy. The
Servicer shall also cause to be maintained fire insurance with
extended coverage
on each REO Property in an amount which is at least equal to the
lesser of (i)
the maximum insurable value of the improvements which are a part
of such
property and (ii) the outstanding principal balance of the
related Mortgage Loan
at the time it became an REO Property, plus accrued interest at
the Mortgage
Interest Rate and related Servicing Advances. The Servicer will
comply in the
performance of this Agreement with all reasonable rules and
requirements of each
insurer under any such hazard policies. Any amounts to be
collected by the
Servicer under any such policies (other than amounts to be
applied to the
restoration or repair of the property subject to the related
Mortgage or amounts
to be released to the Mortgagor in accordance with the
procedures that the
Servicer would follow in servicing loans held for its own
account, subject to
the terms and conditions of the related Mortgage and Mortgage
Note) shall be
deposited in the Collection Account, subject to withdrawal
pursuant to Section
3.11. If the Mortgagor fails to provide Mortgage Loan hazard
insurance coverage
after thirty (30) days of Servicer's written notification, the
Servicer shall
put in place such hazard insurance coverage on the Mortgagor's
behalf. Any out
of pocket expense or advance made by the Servicer on such force
placed hazard
insurance coverage shall be deemed a Servicing Advance. Any cost
incurred by the
Servicer in maintaining any such insurance shall not, for the
purpose of
calculating distributions to the Trustee, be added to the unpaid
principal
balance of the related Mortgage Loan, notwithstanding that the
terms of such
Mortgage Loan so permit. It is understood and agreed that no
earthquake or other
additional insurance is to be required of any Mortgagor other
than pursuant to
such applicable laws and regulations as shall at any time be in
force and as
shall require such additional insurance. If the Mortgaged
Property or REO
Property is at any time in an area identified in the Federal
Register by the
Federal Emergency Management Agency as having special flood
hazards and flood
insurance has been made available, the Servicer will cause to be
maintained a
flood insurance policy in respect thereof. Such flood insurance
shall be in an
amount equal to the lesser of (i) the minimum amount required,
under the terms
of coverage, to compensate for any damage or loss on a
replacement cost basis
(or the unpaid principal balance of the related Mortgage Loan if
replacement
cost coverage is not available for the type of building insured)
and (ii) the
maximum amount of insurance which is available under the Flood
Disaster
Protection Act of 1973, as amended. If at any time during the
term of the
Mortgage Loan, the Servicer determines in accordance with
applicable law and
pursuant to the Federal Emergency Management Agency Guides that
a Mortgaged
Property is located in a special flood hazard area and is not
covered by flood
insurance or is covered in an amount less than the amount
required by the Flood
Disaster Protection Act of 1973, as amended, the Servicer shall
notify the
related Mortgagor to obtain such flood insurance coverage, and
if said Mortgagor
fails to obtain the required flood insurance coverage within
forty five (45)
days after such notification, the Servicer shall immediately
force place the
required flood insurance on the Mortgagor's behalf. Any out of
pocket expense or
advance made by the Servicer on such force placed flood
insurance coverage shall
be deemed a Servicing Advance.
In the event that the Servicer shall obtain and maintain a
blanket
policy with an insurer either (i) acceptable to Fannie Mae or
Freddie Mac, or
(ii) having a General Policy Rating of B:VI or better in Best's
(or such other
rating that is comparable to such rating) insuring against
hazard losses on all
of the Mortgage Loans, it shall conclusively be deemed to have
satisfied its
obligations as set forth in the first two sentences of this
Section 3.13, it
being understood and agreed that such policy may contain a
deductible clause, in
which case the Servicer shall, in the event that there shall not
have been
maintained on the related Mortgaged Property or REO Property a
policy complying
with the first two sentences of this Section 3.13, and there
shall have been one
or more losses which would have been covered by such policy,
deposit to the
Collection Account from its own funds the amount not otherwise
payable under the
blanket policy because of such deductible clause. In connection
with its
activities as administrator and servicer of the Mortgage Loans,
the Servicer
agrees to prepare and present, on behalf of itself, the Trustee
claims under any
such blanket policy in a timely fashion in accordance with the
terms of such
policy.
(b) The Servicer shall keep in force during the term of this
Agreement a policy or policies of insurance covering errors and
omissions for
failure in the performance of the Servicer's obligations under
this Agreement,
which policy or policies shall be in such form and amount that
would meet the
requirements of Fannie Mae or Freddie Mac if it were the
purchaser of the
Mortgage Loans, unless the Servicer has obtained a waiver of
such requirements
from Fannie Mae or Freddie Mac. The Servicer shall also maintain
a fidelity bond
in the form and amount that would meet the requirements of
Fannie Mae or Freddie
Mac, unless the Servicer has obtained a waiver of such
requirements from Fannie
Mae or Freddie 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, if any, and, to
the extent
permitted by applicable state law, the Mortgagor remains liable
thereon. The
Servicer is also authorized to enter into a substitution of
liability agreement
with such person, pursuant to which the original Mortgagor is
released from
liability and such person is substituted as the Mortgagor and
becomes liable
under the Mortgage Note; provided, that no such substitution
shall be effective
unless such person satisfies the underwriting criteria of the
Servicer and such
substitution is in the best interest of the Certificateholders
as determined by
the Servicer. In connection with any assumption, modification or
substitution,
the Servicer shall apply such underwriting standards and follow
such practices
and procedures as shall be normal and usual in its general
mortgage servicing
activities and as it applies to other mortgage loans owned
solely by it. The
Servicer shall not take or enter into any assumption and
modification agreement,
however, unless (to the extent practicable in the circumstances)
it shall have
received confirmation, in writing, of the continued
effectiveness of any
applicable hazard insurance policy, or a new policy meeting the
requirements of
this Section is obtained. Any fee collected by the Servicer in
respect of an
assumption or substitution of liability agreement will be
retained by the
Servicer as additional servicing compensation. In connection
with any such
assumption, no material term of the Mortgage Note (including but
not limited to
the related Mortgage Interest Rate and the amount of the
Scheduled Payment) may
be amended or modified, except as otherwise required pursuant to
the terms
thereof. The Servicer shall notify the Trustee that any such
substitution,
modification or assumption agreement has been completed by
forwarding to the
Trustee the executed original of such substitution or assumption
agreement,
which document shall be added to the related Mortgage File and
shall, for all
purposes, be considered a part of such Mortgage File to the same
extent as all
other documents and instruments constituting a part thereof.
Notwithstanding the foregoing paragraph or any other provision
of
this Agreement, the Servicer shall not be deemed to be in
default, breach or any
other violation of its obligations hereunder by reason of any
assumption of a
Mortgage Loan by operation of law or by the terms of the
Mortgage Note or any
assumption which the Servicer may be restricted by law from
preventing, for any
reason whatsoever. For purposes of this Section 3.14, the term
"assumption" is
deemed to also include a sale (of the Mortgaged Property)
subject to the
Mortgage that is not accompanied by an assumption or
substitution of liability
agreement.
Section 3.15 Realization upon Defaulted Mortgage Loans. The
Servicer
shall use its best efforts, consistent with Accepted Servicing
Practices, to
foreclose upon or otherwise comparably convert (which may
include an acquisition
of REO Property) the ownership of properties securing such of
the Mortgage Loans
as come into and continue in default and as to which no
satisfactory
arrangements can be made for collection of delinquent payments
pursuant to
Section 3.07, and which are not released from this Agreement
pursuant to any
other provision hereof. The Servicer shall use reasonable
efforts to realize
upon such defaulted Mortgage Loans in such manner as will
maximize the receipt
of principal and interest by the Trustee, taking into account,
among other
things, the timing of foreclosure proceedings. The foregoing is
subject to the
provisions that, in any case in which a Mortgaged Property shall
have suffered
damage from an uninsured cause, the Servicer shall not be
required to expend its
own funds toward the restoration of such property unless it
shall determine in
its sole discretion (i) that such restoration will increase the
net proceeds of
liquidation of the related Mortgage Loan to the Trustee, after
reimbursement to
itself for such expenses, and (ii) that such expenses will be
recoverable by the
Servicer through Insurance Proceeds, Condemnation Proceeds or
Liquidation
Proceeds from the related Mortgaged Property, as contemplated in
Section 3.11.
The Servicer shall be responsible for all other costs and
expenses incurred by
it in any such proceedings; provided, however, that it shall be
entitled to
reimbursement thereof from the related property, as contemplated
in Section
3.11.
The proceeds of any Liquidation Event or REO Disposition, as
well as
any recovery resulting from a partial collection of Insurance
Proceeds,
Condemnation Proceeds or Liquidation Proceeds or any income from
an REO
Property, will be applied in the following order of priority:
first, to
reimburse the Servicer or any Subservicer for any related
unreimbursed Servicing
Advances, pursuant to Section 3.11 or 3.17; second, to reimburse
the Servicer
for any related unreimbursed P&I Advances, pursuant to
Section 3.11, third, to
accrued and unpaid interest on the Mortgage Loan or REO Imputed
Interest, at the
Mortgage Interest Rate, to the date of the liquidation or REO
Disposition, or to
the Due Date prior to the Remittance Date on which such amounts
are to be
distributed if not in connection with a Liquidation Event or REO
Disposition;
and fourth, as a recovery of principal of the Mortgage Loan. If
the amount of
the recovery so allocated to interest is less than a full
recovery thereof, that
amount will be allocated as follows: first, to unpaid Servicing
Fees; and
second, as interest at the Mortgage Interest Rate (net of the
Servicing Fee
Rate). The portion of the recovery so allocated to unpaid
Servicing Fees shall
be reimbursed to the Servicer or any Subservicer pursuant to
Section 3.11 or
3.17. The portions of the recovery so allocated to interest at
the Mortgage
Interest Rate (net of the Servicing Fee Rate) and to principal
of the Mortgage
Loan shall be applied as follows: first, to reimburse the
Servicer or any
Subservicer for any related unreimbursed Servicing Advances in
accordance with
Section 3.11 or 3.17, and second, to the Trustee in accordance
with the
provisions of Section 4.02, subject to the last paragraph of
Section 3.17 with
respect to certain excess recoveries from an REO
Disposition.
Notwithstanding anything to the contrary contained herein,
in
connection with a foreclosure or acceptance of a deed in lieu of
foreclosure, in
the event the Servicer has received actual notice of, or has
actual knowledge of
the presence of, hazardous or toxic substances or wastes on the
related
Mortgaged Property, or if the Trustee otherwise requests, the
Servicer shall
cause an environmental inspection or review of such Mortgaged
Property to be
conducted by a qualified inspector. Upon completion of the
inspection, the
Servicer shall promptly provide the Trustee and the Depositor
with a written
report of the environmental inspection.
After reviewing the environmental inspection report, the
Servicer
shall determine consistent with Accepted Servicing Practices, to
proceed with
respect to the Mortgaged Property. In the event (a) the
environmental inspection
report indicates that the Mortgaged Property is contaminated by
hazardous or
toxic substances or wastes and (b) the Servicer determines,
consistent with
Accepted Servicing Practices, to proceed with foreclosure or
acceptance of a
deed in lieu of foreclosure, the Servicer shall be reimbursed
for all reasonable
costs associated with such foreclosure or acceptance of a deed
in lieu of
foreclosure and any related environmental clean-up costs, as
applicable, from
the related Liquidation Proceeds, or if the Liquidation Proceeds
are
insufficient to fully reimburse the Servicer, the Servicer shall
be entitled to
be reimbursed from amounts in the Collection Account pursuant to
Section 3.11.
In the event the Servicer determines not to proceed with
foreclosure or
acceptance of a deed in lieu of foreclosure, the Servicer shall
be reimbursed
from general collections for all Servicing Advances made with
respect to the
related Mortgaged Property from the Collection Account pursuant
to Section 3.11.
The Trustee shall not be responsible for any determination made
by the Servicer
pursuant to this paragraph or otherwise.
Section 3.16 Release of Mortgage Files. (a) Upon the payment in
full
of any Mortgage Loan, or the receipt by the Servicer of a
notification that
payment in full shall be escrowed in a manner customary for such
purposes, the
Servicer will, within five (5) Business Days of the payment in
full, notify the
Trustee by a certification (which certification shall include a
statement to the
effect that all amounts received or to be received in connection
with such
payment which are required to be deposited in the Collection
Account pursuant to
Section 3.10 have been or will be so deposited) of a Servicing
Officer and shall
request delivery to it of the Custodial File by completing a
Request for
Release. Upon receipt of such certification and a Request for
Release, the
Trustee shall promptly release the related Custodial File to the
Servicer within
three (3) Business Days. No expenses incurred in connection with
any instrument
of satisfaction or deed of reconveyance shall be chargeable to
the Collection
Account.
(b) From time to time and as appropriate for the servicing
or
foreclosure of any Mortgage Loan, including, for this purpose,
collection under
any Insurance Policy relating to the Mortgage Loans, the Trustee
shall, upon
request of the Servicer and delivery to the Trustee, of a
Request for Release,
release the related Custodial File to the Servicer, and the
Trustee shall, at
the direction of the Servicer, execute such documents provided
to it as shall be
necessary to the prosecution of any such proceedings and the
Servicer shall
retain the Mortgage File in trust for the benefit of the
Trustee. Such Request
for Release shall obligate the Servicer to return each and every
document
previously requested from the Custodial File to the Trustee when
the need
therefor by the Servicer no longer exists, unless the Mortgage
Loan has been
liquidated and the Liquidation Proceeds relating to the Mortgage
Loan have been
deposited in the Collection Account or the Mortgage File or such
document has
been delivered to an attorney, or to a public trustee or other
public official
as required by law, for purposes of initiating or pursuing legal
action or other
proceedings for the foreclosure of the Mortgaged Property either
judicially or
non-judicially, and the Servicer has delivered to the Trustee a
certificate of a
Servicing Officer certifying as to the name and address of the
Person to which
such Mortgage File or such document was delivered and the
purpose or purposes of
such delivery. Upon receipt of a certificate of a Servicing
Officer stating that
such Mortgage Loan was liquidated and that all amounts received
or to be
received in connection with such liquidation that are required
to be deposited
into the related Collection Account have been so deposited, or
that such
Mortgage Loan has become an REO Property, a copy of the Request
for Release
shall be released by the Trustee to the Servicer or its
designee. Upon receipt
of a Request for Release under this Section 3.16, the Trustee
shall deliver the
related Custodial File to the Servicer by regular mail, unless
the Servicer
requests that the Trustee deliver such Custodial File to the
Servicer by
overnight courier (in which case such delivery shall be at the
Servicer's
expense); provided, however, that in the event the Servicer has
not previously
received copies of the relevant Mortgage Loan Documents
necessary to service the
related Mortgage Loan in accordance with Accepted Servicing
Practices, the
Depositor shall use reasonable best efforts to cause the
applicable Responsible
Party to reimburse the Servicer for any overnight courier
charges incurred for
the requested Custodial Files.
Upon written certification of a Servicing Officer, the Trustee
shall
execute and deliver to the Servicer copies of any court
pleadings, requests for
trustee's sale or other documents reasonably necessary to the
foreclosure or
trustee's sale in respect of a Mortgaged Property or to any
legal action brought
to obtain judgment against any Mortgagor on the Mortgage Note or
Mortgage or to
obtain a deficiency judgment, or to enforce any other remedies
or rights
provided by the Mortgage Note or Mortgage or otherwise available
at law or in
equity, or shall exercise and deliver to the Servicer a power of
attorney
sufficient to authorize the Servicer to execute such documents
on its behalf.
Each such certification shall include a request that such
pleadings or documents
be executed by the Trustee and a statement as to the reason such
documents or
pleadings are required and that the execution and delivery
thereof by the
Trustee will not invalidate or otherwise affect the lien of the
Mortgage, except
for the termination of such a lien upon completion of the
foreclosure or
trustee's sale.
Section 3.17 Title, Conservation and Disposition of REO
Property.
(a) This Section shall apply only to REO Properties acquired for
the account of
the Trustee and shall not apply to any REO Property relating to
a Mortgage Loan
which was purchased or repurchased from the Trustee pursuant to
any provision
hereof. In the event that title to any such REO Property is
acquired, the
Servicer shall cause the deed or certificate of sale to be
issued in the name of
the Trustee, on behalf of the Certificateholders.
(b) The Servicer shall manage, conserve, protect and operate
each
REO Property for the Trustee solely for the purpose of its
prompt disposition
and sale. The Servicer, either itself or through an agent
selected by the
Servicer, shall manage, conserve, protect and operate the REO
Property in the
same manner that it manages, conserves, protects and operates
other foreclosed
property for its own account, and in the same manner that
similar property in
the same locality as the REO Property is managed. The Servicer
shall attempt to
sell the same (and may temporarily rent the same for a period
not greater than
one year, except as otherwise provided below) on such terms and
conditions as
the Servicer deems to be in the best interest of the
Trustee.
(c) The Servicer shall use Accepted Servicing Practices to
dispose
of the REO Property as soon as possible and shall sell such REO
Property in any
event within the time specified in Section 3.17(h) after title
has been taken to
such REO Property, unless such Servicer determines, and gives an
appropriate
notice to the Trustee to such effect, that a longer period is
necessary for the
orderly liquidation of such REO Property. The Trustee has no
obligation with
respect to REO Dispositions.
(d) The Servicer shall segregate and hold all funds collected
and
received in connection with the operation of any REO Property
separate and apart
from its own funds and general assets and shall deposit such
funds in the
Collection Account.
(e) The Servicer shall deposit net of reimbursement to the
Servicer
for any related outstanding Servicing Advances and unpaid
Servicing Fees
provided in Section 3.11, or cause to be deposited, on a daily
basis in the
Collection Account all revenues received with respect to the
related REO
Property and shall withdraw therefrom funds necessary for the
proper operation,
management and maintenance of the REO Property.
(f) The Servicer, upon an REO Disposition, shall be entitled
to
reimbursement for any related unreimbursed Servicing Advances as
well as any
unpaid Servicing Fees from proceeds received in connection with
the REO
Disposition, as further provided in Section 3.11.
(g) Any net proceeds from an REO Disposition which are in excess
of
the unpaid principal balance of the related Mortgage Loan plus
all unpaid REO
Imputed Interest thereon through the date of the REO Disposition
shall be
retained by the Servicer as additional servicing
compensation.
(h) The Servicer shall use Accepted Servicing Practices to sell,
or
cause the Subservicer to sell, in accordance with Accepted
Servicing Practices,
any REO Property as soon as possible, but in no event later than
the conclusion
of the third calendar year beginning after the year of its
acquisition by the
REMIC unless (i) the Servicer applies for an extension of such
period from the
Internal Revenue Service pursuant to the REMIC Provisions and
Code Section
856(e)(3), in which event such REO Property shall be sold within
the applicable
extension period, or (ii) the Servicer obtains for the Trustee
an Opinion of
Counsel, addressed to the Depositor, the Trustee and the
Servicer, to the effect
that the holding by the Lower Tier REMIC of such REO Property
subsequent to such
period will not result in the imposition of taxes on "prohibited
transactions"
as defined in Section 860F of the Code or cause either Trust
REMIC to fail to
qualify as a REMIC under the REMIC Provisions or comparable
provisions of
relevant state laws at any time. The Servicer shall manage,
conserve, protect
and operate each REO Property for the Trustee solely for the
purpose of its
prompt disposition and sale in a manner which does not cause
such REO Property
to fail to qualify as "foreclosure property" within the meaning
of Section
860G(a)(8) or result in the receipt by the Lower Tier REMIC of
any "income from
non-permitted assets" within the meaning of Section
860F(a)(2)(B) of the Code or
any "net income from foreclosure property" which is subject to
taxation under
Section 860G(a)(1) of the Code. Pursuant to its efforts to sell
such REO
Property, the Servicer shall either itself or through an agent
selected by the
Servicer protect and conserve such REO Property in the same
manner and to such
extent as is customary in the locality where such REO Property
is located and
may, incident to its conservation and protection of the
interests of the Trustee
on behalf of the Certificateholders, rent the same, or any part
thereof, as the
Servicer deems to be in the best interest of the Trustee on
behalf of the
Certificateholders for the period prior to the sale of such REO
Property;
provided, however, that any rent received or accrued with
respect to such REO
Property qualifies as "rents from real property" as defined in
Section 856(d) of
the Code.
Section 3.18 Notification of Adjustments. With respect to
each
Mortgage Loan, the Servicer shall adjust the Mortgage Interest
Rate on the
related Adjustment Date and shall adjust the Scheduled Payment
on the related
mortgage payment adjustment date, if applicable, in compliance
with the
requirements of applicable law and the related Mortgage and
Mortgage Note. In
the event that an Index becomes unavailable or otherwise
unpublished, the
Servicer shall select a comparable alternative index over which
it has no direct
control and which is readily verifiable. The Servicer shall
execute and deliver
any and all necessary notices required under applicable law and
the terms of the
related Mortgage Note and Mortgage regarding the Mortgage
Interest Rate and
Scheduled Payment adjustments. The Servicer shall promptly, upon
written request
therefor, deliver to the Trustee such notifications and any
additional
applicable data regarding such adjustments and the methods used
to calculate and
implement such adjustments. Upon the discovery by the Servicer
or the receipt of
notice from the Trustee that the Servicer has failed to adjust a
Mortgage
Interest Rate or Scheduled Payment in accordance with the terms
of the related
Mortgage Note, the Servicer shall deposit in the Collection
Account from its own
funds the amount of any interest loss caused as such interest
loss occurs.
Section 3.19 Access to Certain Documentation and Information
Regarding the Mortgage Loans. The Servicer shall provide, or
cause the
Subservicer to provide, to the Depositor, the Trustee, the OTS
or the FDIC and
the examiners and supervisory agents thereof access to the
documentation
regarding the Mortgage Loans in its possession required by
applicable
regulations of the OTS. Such access shall be afforded without
charge, but only
upon 15 days (or if an Event of Default has occurred and is
continuing, 3
Business Days) prior written request and during normal business
hours at the
offices of the Servicer. Nothing in this Section shall derogate
from the
obligation of such party to observe any applicable law
prohibiting disclosure of
information regarding the Mortgagors and the failure of such
party to provide
access as provided in this Section as a result of such
obligation shall not
constitute a breach of this Section.
Nothing in Section 3.19 shall require the Servicer to
collect,
create, collate or otherwise generate any information that it
does not generate
in its usual course of business. The Servicer shall not be
required to make
copies of or to ship documents to any Person who is not a party
to this
Agreement, and then only if provisions have been made for the
reimbursement of
the costs thereof.
Section 3.20 Documents, Records and Funds in Possession of
the
Servicer to Be Held for the Trustee. The Servicer shall account
fully to the
Trustee for any funds received by the Servicer or which
otherwise are collected
by the Servicer as Liquidation Proceeds, Condemnation Proceeds
or Insurance
Proceeds in respect of any Mortgage Loan. All Mortgage Files and
funds collected
or held by, or under the control of, the Servicer in respect of
any Mortgage
Loans, whether from the collection of principal and interest
payments or from
Liquidation Proceeds, including, but not limited to, any funds
on deposit in its
Collection Account, shall be held by the Servicer for and on
behalf of the
Trustee and shall be and remain the sole and exclusive property
of the Trustee,
subject to the applicable provisions of this Agreement. The
Servicer also agrees
that it shall not create, incur or subject any Mortgage File or
any funds that
are deposited in the Collection Account, the Distribution
Account or any Escrow
Account, or any funds that otherwise are or may become due or
payable to the
Trustee for the benefit of the Certificateholders, to any claim,
lien, security
interest, judgment, levy, writ of attachment or other
encumbrance, or assert by
legal action or otherwise any claim or right of setoff against
any Mortgage File
or any funds collected on, or in connection with, a Mortgage
Loan, except,
however, that the Servicer shall be entitled to set off against
and deduct from
any such funds any amounts that are properly due and payable to
the Servicer
under this Agreement.
Section 3.21 Servicing Compensation. (a) As compensation for
its
activities hereunder, the Servicer shall, with respect to each
Mortgage Loan, be
entitled to retain from deposits to the Collection Account and
from Liquidation
Proceeds, Insurance Proceeds and Condemnation Proceeds related
to such Mortgage
Loan, the Servicing Fee with respect to each Mortgage Loan (less
any portion of
such amounts retained by any Subservicer). In addition, the
Servicer shall be
entitled to recover unpaid Servicing Fees out of related Late
Collections to the
extent permitted in Section 3.11. The right to receive the
Servicing Fee may not
be transferred in whole or in part except as provided in Section
10.07 or in
connection with the transfer of all of the Servicer's
responsibilities and
obligations under this Agreement; provided, however, that the
Servicer may pay
from the Servicing Fee any amounts due to a Subservicer pursuant
to a
Subservicing Agreement entered into under Section 3.02.
(b) Additional servicing compensation in the form of assumption
or
modification fees, late payment charges, NSF fees, reconveyance
fees and other
similar fees and charges (other than Prepayment Premiums) shall
be retained by
the Servicer only to the extent such fees or charges are
received by the
Servicer. The Servicer shall also be entitled pursuant to
Section 3.09(b)(vi)
and Section 3.11(a)(iv) to withdraw from the Collection Account,
as additional
servicing compensation, interest or other income earned on
deposits therein.
(c) The Servicer shall be required to pay all expenses incurred
by
it in connection with its servicing activities hereunder
(including payment of
premiums for any blanket policy insuring against hazard losses
pursuant to
Section 3.13, servicing compensation of the Subservicer to the
extent not
retained by it and the fees and expenses of independent
accountants and any
agents appointed by the Servicer), and shall not be entitled to
reimbursement
therefor except as specifically provided in Section 3.11.
Section 3.22 Annual Statement as to Compliance. The Servicer
will
deliver or cause to be delivered to the Depositor, the Rating
Agencies and the
Trustee on or before March 15th of each calendar year,
commencing in 2006, an
Officer's Certificate stating, as to each signatory thereof,
that (i) a review
of the activities of the Servicer during the preceding calendar
year and of
performance under this Agreement or a similar agreement has been
made under such
officers' supervision, and (ii) to the best of such officers'
knowledge, based
on such review, the Servicer has fulfilled all of its
obligations under this
Agreement throughout such year, or, if there has been a default
in the
fulfillment of any such obligation, specifying each such default
known to such
officers and the nature and status thereof. Promptly after
receipt of such
Officer's Certificate, the Depositor shall review such Officer's
Certificate
and, if applicable, consult with the Servicer as to the nature
of any defaults
by the Servicer in the fulfillment of any of the Servicer's
obligations. The
obligations of the Servicer under this Section apply to each
Servicer that
serviced during the applicable period, whether or not such
Servicer is acting as
the Servicer at the time such Officer's Certificate is required
to be delivered.
Section 3.23 Annual Independent Public Accountants'
Servicing
Statement; Financial Statements. Not later than March 15th of
each calendar year
commencing in 2006, the Servicer, at its expense, shall cause a
nationally
recognized firm of independent certified public accountants to
furnish to the
Depositor, the Rating Agencies and the Trustee a report stating
that (i) it has
obtained a letter of representation regarding certain matters
from the
management of the Servicer which includes an assertion that the
Servicer has
complied with certain minimum residential mortgage loan
servicing standards,
identified in the Uniform Single Attestation Program for
Mortgage Bankers
established by the Mortgage Bankers Association of America, with
respect to the
servicing of residential mortgage loans during the most recently
completed
calendar year and (ii) on the basis of an examination conducted
by such firm in
accordance with standards established by the American Institute
of Certified
Public Accountants, such representation is fairly stated in all
material
respects, subject to such exceptions and other qualifications
that may be
appropriate. In rendering its report such firm may rely, as to
matters relating
to the direct servicing of residential mortgage loans by
Subservicers, upon
comparable reports of firms of independent certified public
accountants rendered
on the basis of examinations conducted in accordance with the
same standards
(rendered within one year of such report) with respect to those
Subservicers.
Promptly after receipt of such report, the Depositor shall
review such report
and, if applicable, consult with the Servicer as to the nature
of any defaults
by the Servicer in the fulfillment of any of the Servicer's
obligations. The
obligations of the Servicer under this Section apply to each
Servicer that
serviced during the applicable period, whether or not such
Servicer is acting as
the Servicer at the time such report is required to be
delivered.
Section 3.24 Trustee to Act as Servicer. (a) In the event that
the
Servicer shall for any reason no longer be the Servicer
hereunder (including by
reason of an Event of Default), the Trustee or its successor
shall, thereupon
assume all of the rights and obligations of the Servicer
hereunder arising
thereafter (except that the Trustee shall not be (i) liable for
losses of the
predecessor Servicer pursuant to Section 3.10 or any acts or
omissions of the
predecessor Servicer hereunder, (ii) obligated to make Advances
if it is
prohibited from doing so by applicable law, (iii) obligated to
effectuate
repurchases or substitutions of Mortgage Loans hereunder,
including but not
limited to repurchases or substitutions pursuant to Section
2.03, (iv)
responsible for expenses of the Servicer pursuant to Section
2.03 or (v) deemed
to have made any representations and warranties of the Servicer
hereunder). Any
such assumption shall be subject to Section 7.02.
(b) Every Subservicing Agreement entered into by the Servicer
shall
contain a provision giving the successor Servicer the option to
terminate such
agreement in the event a successor Servicer is appointed.
(c) If the Servicer shall for any reason no longer be the
Servicer
(including by reason of any Event of Default), the Trustee (or
any other
successor Servicer) may, at its option, succeed to any rights
and obligations of
the Servicer under any Subservicing Agreement in accordance with
the terms
thereof; provided, that the Trustee (or any other successor
Servicer) shall not
incur any liability or have any obligations in its capacity as
successor
Servicer under a Subservicing Agreement arising prior to the
date of such
succession unless it expressly elects to succeed to the rights
and obligations
of the Servicer thereunder; and the Servicer shall not thereby
be relieved of
any liability or obligations under the Subservicing Agreement
arising prior to
the date of such succession.
(d) The Servicer shall, upon request of the Trustee, but at
the
expense of the Servicer, deliver to the assuming party all
documents and records
relating to each Subservicing Agreement (if any) and the
Mortgage Loans then
being serviced thereunder and an accounting of amounts collected
held by it and
otherwise use its best efforts to effect the orderly and
efficient transfer of
the Subservicing Agreement to the assuming party.
Section 3.25 Compensating Interest. The Servicer shall remit to
the
Trustee on each Remittance Date an amount from its own funds
equal to
Compensating Interest payable by the Servicer for such
Remittance Date,
provided, however, the Servicer is not required to pay
Compensating Interest
during February 2005.
Section 3.26 Credit Reporting; Gramm-Leach-Bliley Act. (a)
With
respect to each Mortgage Loan, the Servicer shall fully furnish,
in accordance
with the Fair Credit Reporting Act and its implementing
regulations, accurate
and complete information (e.g., favorable and unfavorable) on
the related
Mortgagor credit files to the three national credit
repositories, on a monthly
basis.
(b) The Servicer shall comply with all provisions of the
Privacy
Laws, relating to the Mortgage Loans, the related borrowers and
any "nonpublic
personal information" (as defined in the Privacy Laws) received
by the Servicer
incidental to the performance of its obligations under this
Agreement,
including, maintaining adequate information security procedures
to protect such
nonpublic personal information and providing all privacy notices
required by the
Privacy Laws.
Section 3.27 Excess Reserve Fund Account; Distribution Account.
(a)
The Trustee shall establish and maintain the Excess Reserve Fund
Account, on
behalf of the Class X Certificateholde
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