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EXHIBIT 4
EXECUTION COPY
GS MORTGAGE SECURITIES CORP.,
Depositor,
COUNTRYWIDE HOME LOANS SERVICING LP,
Servicer,
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
Servicer,
J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION,
Custodian,
and
DEUTSCHE BANK NATIONAL TRUST COMPANY,
Trustee
--------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of March 1, 2005
--------------------------------------
GSAMP TRUST 2005-HE2
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HE2
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01
Definitions................................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage
Loans...............................
Section 2.02 Acceptance by the Trustee of the Mortgage
Loans............
Section 2.03 Representations, Warranties and Covenants of
Each
Servicer and the Custodian..............................
Section 2.04
[Reserved.]................................................
Section 2.05 Execution and Delivery of
Certificates.....................
Section 2.06 REMIC
Matters..............................................
Section 2.07 Representations and Warranties of the
Depositor............
Section 2.08 Enforcement of Purchaser
Obligations.......................
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicers to Service Mortgage
Loans........................
Section 3.02 Subservicing Agreements between a Servicer and
Subservicers............................................
Section 3.03 Successor
Subservicers.....................................
Section 3.04 Liability of the
Servicers.................................
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
Accounts........................................
Section 3.11 Withdrawals from the Collection
Accounts...................
Section 3.12 Investment of Funds in the Collection Accounts 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
Servicers 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 Certain Acoustic
Mortgage
Loans and Certain First NLC Mortgage Loans..............
ARTICLE IV
DISTRIBUTIONS AND
ADVANCES BY THE SERVICERS
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................
Section 4.06 Supplemental Interest
Trust................................
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 SERVICERS
Section 6.01 Respective Liabilities of the Depositor and the
Servicers..
Section 6.02 Merger or Consolidation of the Depositor or a
Servicer.....
Section 6.03 Limitation on Liability of the Depositor, the
Servicers
and Others..............................................
Section 6.04 Limitation on Resignation of a
Servicer....................
Section 6.05 Additional Indemnification by the Servicers; 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 Custodian and 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 Treatment of Upper-Tier Carry Forward Amounts
and
Basis Risk Carry Forward Amounts........................
Section 8.14 Custodial
Responsibilities.................................
Section 8.15 Limitations on Custodial
Responsibilities..................
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.......................................
Section 10.12 Limitation of
Damages......................................
Section 10.13 Rights of the Swap
Provider................................
SCHEDULES
Schedule I Mortgage Loan Schedule
Schedule II Representations and Warranties of Countrywide, as
Servicer
Schedule III Representations and Warranties of JPMorgan, as
Servicer
Schedule IV Representations and Warranties of J.P. Morgan Trust
Company,
National Association, as Custodian
EXHIBITS
Exhibit A-1 Form of Class A, Class M and Class B
Certificates
Exhibit B Form of Class P Certificate
Exhibit C-1 Form of Class R-1 Certificate
Exhibit C-2 Form of Class R-2 Certificate
Exhibit D Form of Class X Certificate
Exhibit E Form of Initial Certification of Custodian or
Trustee
Exhibit F Form of Document Certification and Exception Report of
Custodian or
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 Contents of Each Mortgage File
Exhibit L Servicer 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
Exhibit P Representations and Warranties Agreement
<PAGE>
THIS POOLING AND SERVICING AGREEMENT, dated as of March 1, 2005,
is
among GS MORTGAGE SECURITIES CORP., a Delaware corporation (the
"Depositor"),
COUNTRYWIDE HOME LOANS SERVICING LP, a Texas limited
partnership
("Countrywide"), JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, a
national banking
association ("JPMorgan"), as a Servicer, J.P. MORGAN TRUST
COMPANY, NATIONAL
ASSOCIATION, a national banking association, as custodian (the
"Custodian"), and
DEUTSCHE BANK NATIONAL TRUST COMPANY, a national banking
association, as trustee
(the "Trustee").
W I T N E S S E T H:
In consideration of the mutual agreements herein contained,
the
parties hereto agree as follows:
PRELIMINARY STATEMENT
The Trustee shall elect that four segregated asset pools within
the
Trust Fund (exclusive of (i) the Prepayment Premiums, (ii) the
Interest Rate
Swap Agreement, (iii) the Supplemental Interest Trust, (iv) the
Excess Reserve
Fund Account, and (v) the right of the Principal Certificates to
receive
Upper-Tier Carry Forward Amounts and, without duplication, Basis
Risk Carry
Forward Amounts and the obligation to pay Class IO Shortfalls)
be treated for
federal income tax purposes as comprising four REMICs (each, a
"Trust REMIC" or,
in the alternative, Pooling-Tier REMIC-1, Pooling-Tier REMIC 2,
the Lower-Tier
REMIC and the Upper-Tier REMIC, respectively). The Class X
Interest and each
Class of Principal Certificates (other than the right of each
Class of Principal
Certificates to receive Upper-Tier Carry Forward Amounts and,
without
duplication, Basis Risk Carry Forward Amounts) and the
obligation to pay Class
IO Shortfalls represents ownership of a regular interest in a
REMIC for purposes
of the REMIC Provisions. The Class R-2 Certificates represent
ownership of the
sole class of residual interest in Pooling-Tier REMIC-1 for
purposes of the
REMIC Provisions. The Class R-1 Certificates represent ownership
of the sole
class of residual interest in each of Pooling-Tier REMIC 2, 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 several classes of uncertificated
Pooling-Tier REMIC 2
Regular Interests. Pooling-Tier REMIC 2 shall hold as assets the
several classes
of uncertificated Pooling-Tier REMIC-1 Regular Interests.
Pooling-Tier REMIC-1
shall hold as assets the assets of the Trust Fund (exclusive of
(i) the
Prepayment Premiums, (ii) the Interest Rate Swap Agreement,
(iii) the
Supplemental Interest Trust, (iv) the Excess Reserve Fund
Account, and (v) the
right of the Principal Certificates to receive Upper-Tier Carry
Forward Amounts
and, without duplication, Basis Risk Carry Forward Amounts and
the obligation to
pay Class IO Shortfalls).
For federal income tax purposes, each Class of Principal
Certificates represents a beneficial ownership of a regular
interest in the
Upper-Tier REMIC, the right to receive Upper-Tier Carry Forward
Amounts (and,
without duplication, Basis Risk Carry Forward Amounts), and the
obligation to
pay Class IO Shortfalls, the Class X Certificates represent
beneficial ownership
of the Class X Regular Interest, the Interest Rate Swap
Agreement, the
Supplemental Interest Trust, the Excess Reserve Fund Account and
the right to
receive Class IO Shortfalls, 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.
Pooling-Tier REMIC-1
Pooling-Tier REMIC-1 shall issue the following interests in
Pooling-Tier REMIC-1, and each such interest is hereby
designated as a regular
interest in the Pooling-Tier REMIC-1. Pooling-Tier REMIC-1 shall
also issue the
Class R-2 Certificates. The Class R-2 Certificates are hereby
designated as the
sole class of residual interest in Pooling-Tier REMIC-1. The
Class R-2
Certificates shall have a $100 Class Certificate Balance and
shall have no
interest rate.
Initial Pooling-Tier
Pooling-Tier REMIC-1 Pooling-Tier REMIC-1 REMIC-1 Principal
Interest Interest Rate Amount
-------------------- --------------------
--------------------
Class PT1-1 (1) $ 607,611,047.65
Class PT1-2A (2) $ 703,992.15
Class PT1-2B (3) $ 703,992.15
Class PT1-3A (2) $ 810,810.81
Class PT1-3B (3) $ 810,810.81
Class PT1-4A (2) $ 915,244.15
Class PT1-4B (2) $ 915,244.15
Class PT1-5A (2) $ 1,013,526.37
Class PT1-5B (3) $ 1,013,526.37
Class PT1-6A (2) $ 1,116,890.75
Class PT1-6B (3) $ 1,116,890.75
Class PT1-7A (2) $ 1,206,577.87
Class PT1-7B (3) $ 1,206,577.87
Class PT1-8A (2) $ 1,293,844.33
Class PT1-8B (3) $ 1,293,844.33
Class PT1-9A (2) $ 1,374,545.47
Class PT1-9B (3) $ 1,374,545.47
Class PT1-10A (2) $ 1,406,927.54
Class PT1-10B (3) $ 1,406,927.54
Class PT1-11A (2) $ 1,356,926.64
Class PT1-11B (3) $ 1,356,926.64
Class PT1-12A (2) $ 1,306,650.43
Class PT1-12B (3) $ 1,306,650.43
Class PT1-13A (2) $ 1,258,231.75
Class PT1-13B (3) $ 1,258,231.75
Class PT1-14A (2) $ 1,211,602.10
Class PT1-14B (3) $ 1,211,602.10
Class PT1-15A (2) $ 1,166,695.56
Class PT1-15B (3) $ 1,166,695.56
Class PT1-16A (2) $ 1,123,448.57
Class PT1-16B (3) $ 1,123,448.57
Class PT1-17A (2) $ 1,081,799.95
Class PT1-17B (3) $ 1,081,799.95
Class PT1-18A (2) $ 1,041,690.78
Class PT1-18B (3) $ 1,041,690.78
Class PT1-19A (2) $ 1,003,064.27
Class PT1-19B (3) $ 1,003,064.27
Class PT1-20A (2) $ 965,865.75
Class PT1-20B (3) $ 965,865.75
Class PT1-21A (2) $ 930,042.57
Class PT1-21B (3) $ 930,042.57
Class PT1-22A (2) $ 895,543.97
Class PT1-22B (3) $ 895,543.97
Class PT1-23A (2) $ 862,321.11
Class PT1-23B (3) $ 862,321.11
Class PT1-24A (2) $ 830,326.93
Class PT1-24B (3) $ 830,326.93
Class PT1-25A (2) $ 799,516.10
Class PT1-25B (3) $ 799,516.10
Class PT1-26A (2) $ 769,844.97
Class PT1-26B (3) $ 769,844.97
Class PT1-27A (2) $ 741,271.46
Class PT1-27B (3) $ 741,271.46
Class PT1-28A (2) $ 713,755.09
Class PT1-28B (3) $ 713,755.09
Class PT1-29A (2) $ 687,256.84
Class PT1-29B (3) $ 687,256.84
Class PT1-30A (2) $ 661,739.14
Class PT1-30B (3) $ 661,739.14
Class PT1-31A (2) $ 637,165.80
Class PT1-31B (3) $ 637,165.80
Class PT1-32A (2) $ 613,501.96
Class PT1-32B (3) $ 613,501.96
Class PT1-33A (2) $ 590,714.03
Class PT1-33B (3) $ 590,714.03
Class PT1-34A (2) $ 568,769.70
Class PT1-34B (3) $ 568,769.70
Class PT1-35A (2) $ 547,637.81
Class PT1-35B (3) $ 547,637.81
Class PT1-36A (2) $ 527,288.37
Class PT1-36B (3) $ 527,288.37
Class PT1-37A (2) $ 507,692.48
Class PT1-37B (3) $ 507,692.48
Class PT1-38A (2) $ 488,822.30
Class PT1-38B (3) $ 488,822.30
Class PT1-39A (2) $ 470,651.05
Class PT1-39B (3) $ 470,651.05
Class PT1-40A (2) $ 453,152.89
Class PT1-40B (3) $ 453,152.89
Class PT1-41A (2) $ 436,302.98
Class PT1-41B (3) $ 436,302.98
Class PT1-42A (2) $ 420,077.37
Class PT1-42B (3) $ 420,077.37
Class PT1-43A (2) $ 404,452.98
Class PT1-43B (3) $ 404,452.98
Class PT1-44A (2) $ 389,407.60
Class PT1-44B (3) $ 389,407.60
Class PT1-45A (2) $ 374,919.84
Class PT1-45B (3) $ 374,919.84
Class PT1-46A (2) $ 360,969.09
Class PT1-46B (3) $ 360,969.09
Class PT1-47A (2) $ 347,535.52
Class PT1-47B (3) $ 347,535.52
Class PT1-48A (2) $ 334,599.98
Class PT1-48B (3) $ 334,599.98
Class PT1-49A (2) $ 322,144.08
Class PT1-49B (3) $ 322,144.08
Class PT1-50A (2) $ 310,150.10
Class PT1-50B (3) $ 310,150.10
Class PT1-51A (2) $ 298,600.94
Class PT1-51B (3) $ 298,600.94
Class PT1-52A (2) $ 287,480.17
Class PT1-52B (3) $ 287,480.17
Class PT1-53A (2) $ 276,771.94
Class PT1-53B (3) $ 276,771.94
Class PT1-54A (2) $ 266,460.99
Class PT1-54B (3) $ 266,460.99
Class PT1-55A (2) $ 256,532.64
Class PT1-55B (3) $ 256,532.64
Class PT1-56A (2) $ 246,972.72
Class PT1-56B (3) $ 246,972.72
Class PT1-57A (2) $ 237,767.62
Class PT1-57B (3) $ 237,767.62
Class PT1-58A (2) $ 229,034.50
Class PT1-58B (3) $ 229,034.50
Class PT1-59A (2) $ 220,497.37
Class PT1-59B (3) $ 220,497.37
Class PT1-60A (2) $ 212,314.83
Class PT1-60B (3) $ 212,314.83
Class PT1-61A (2) $ 5,444,743.68
Class PT1-61B (3) $ 5,444,743.68
--------------------
(1) For any Distribution Date (and the related Interest Accrual
Period), this
Pooling-Tier REMIC-1 Regular Interest shall bear interest at a
per annum
rate (its "Pooling-Tier REMIC-1 Interest Rate") equal to the
Pooling-Tier
REMIC-1 WAC Rate.
(2) For any Distribution Date (and the related Interest Accrual
Period) this
Pooling-Tier REMIC-1 Regular Interest shall bear interest at a
per annum
rate (its "Pooling-Tier REMIC-1 Interest Rate") equal to the
product of
(i) 2 and (ii) the Pooling-Tier REMIC-1 WAC Rate, subject to a
maximum
rate of 8.49%.
(3) For any Distribution Date (and the related Interest Accrual
Period) this
Pooling-Tier REMIC-1 Regular Interest shall bear interest at a
per annum
rate (its "Pooling-Tier REMIC-1 Interest Rate") equal to the
excess, if
any, of (A) the product of (i) 2 and (ii) the Pooling-Tier
REMIC-1 WAC
Rate over (B) 8.49%.
On each Distribution Date, the Trustee shall first pay from
the
Trust Fund and charge as an expense of Pooling-Tier REMIC-1 all
expenses of the
Trust for such Distribution Date. Such expense, other than
Servicing Fees, the
Custodian Fees and Trustee Fees, shall be allocated in the same
manner as
Realized Losses.
On each Distribution Date, the interest distributable in respect
of
the Mortgage Loans for such Distribution Date shall be deemed to
be distributed
to the Pooling-Tier REMIC-1 Regular Interests at the rates shown
above.
On each Distribution Date, Realized Losses and payments of
principal
in respect of the Mortgage Loans shall be allocated to the Class
R-2
Certificates pursuant to Section 4.02(a)(ii) until its Class
Certificate Balance
is reduced to zero and then to the outstanding Pooling-Tier
REMIC-1 Regular
Interest with the lowest numerical denomination until the
Pooling-Tier REMIC-1
Principal Amount of such interest is reduced to zero, provided
that, with
respect to Pooling-Tier REMIC-1 Regular Interests with the same
numerical
denomination, such Realized Losses and payments of principal
shall be allocated
pro rata between such Pooling-Tier REMIC-1 Regular
Interests.
Pooling-Tier REMIC-2
Pooling-Tier REMIC-2 shall issue the following interests in
Pooling-Tier REMIC-2, and each such interest, other than the
Class PT2-R
Interest, is hereby designated as a regular interest in
Pooling-Tier REMIC-2.
The Class PT2-R Interest is hereby designated as the sole class
of residual
interest in Pooling-Tier REMIC-2 and shall be represented by the
Class R-1
Certificates.
<TABLE>
<CAPTION>
Pooling-Tier
REMIC-2 Initial
Principal Corresponding Corresponding
Pooling-Tier Amount or Class Corresponding Pooling-Tier
Crossover
Pooling-Tier REMIC-2 Certificate Pooling-Tier REMIC-1
Distribution
REMIC 2 Interest Interest Rate Balance REMIC 2 IO Regular
Interest Date
------------------ --------------- --------------- -------------
---------------- -------------
<S> <C> <C> <C> <C> <C>
Class PT2-1 (1) $607,611,047.65 N/A N/A N/A
Class PT2-2A (2) $ 703,992.15 Class PT2-IO-2 N/A N/A
Class PT2-2B (3) $ 703,992.15 N/A N/A N/A
Class PT2-3A (2) $ 810,810.81 Class PT2-IO-3 N/A N/A
Class PT2-3B (3) $ 810,810.81 N/A N/A N/A
Class PT2-4A (2) $ 915,244.15 Class PT2-IO-4 N/A N/A
Class PT2-4B (3) $ 915,244.15 N/A N/A N/A
Class PT2-5A (2) $ 1,013,526.37 Class PT2-IO-5 N/A N/A
Class PT2-5B (3) $ 1,013,526.37 N/A N/A N/A
Class PT2-6A (2) $ 1,116,890.75 Class PT2-IO-6 N/A N/A
Class PT2-6B (3) $ 1,116,890.75 N/A N/A N/A
Class PT2-7A (2) $ 1,206,577.87 Class PT2-IO-7 N/A N/A
Class PT2-7B (3) $ 1,206,577.87 N/A N/A N/A
Class PT2-8A (2) $ 1,293,844.33 Class PT2-IO-8 N/A N/A
Class PT2-8B (3) $ 1,293,844.33 N/A N/A N/A
Class PT2-9A (2) $ 1,374,545.47 Class PT2-IO-9 N/A N/A
Class PT2-9B (3) $ 1,374,545.47 N/A N/A N/A
Class PT2-10A (2) $ 1,406,927.54 Class PT2-IO-10 N/A N/A
Class PT2-10B (3) $ 1,406,927.54 N/A N/A N/A
Class PT2-11A (2) $ 1,356,926.64 Class PT2-IO-11 N/A N/A
Class PT2-11B (3) $ 1,356,926.64 N/A N/A N/A
Class PT2-12A (2) $ 1,306,650.43 Class PT2-IO-12 N/A N/A
Class PT2-12B (3) $ 1,306,650.43 N/A N/A N/A
Class PT2-13A (2) $ 1,258,231.75 Class PT2-IO-13 N/A N/A
Class PT2-13B (3) $ 1,258,231.75 N/A N/A N/A
Class PT2-14A (2) $ 1,211,602.10 Class PT2-IO-14 N/A N/A
Class PT2-14B (3) $ 1,211,602.10 N/A N/A N/A
Class PT2-15A (2) $ 1,166,695.56 Class PT2-IO-15 N/A N/A
Class PT2-15B (3) $ 1,166,695.56 N/A N/A N/A
Class PT2-16A (2) $ 1,123,448.57 Class PT2-IO-16 N/A N/A
Class PT2-16B (3) $ 1,123,448.57 N/A N/A N/A
Class PT2-17A (2) $ 1,081,799.95 Class PT2-IO-17 N/A N/A
Class PT2-17B (3) $ 1,081,799.95 N/A N/A N/A
Class PT2-18A (2) $ 1,041,690.78 Class PT2-IO-18 N/A N/A
Class PT2-18B (3) $ 1,041,690.78 N/A N/A N/A
Class PT2-19A (2) $ 1,003,064.27 Class PT2-IO-19 N/A N/A
Class PT2-19B (3) $ 1,003,064.27 N/A N/A N/A
Class PT2-20A (2) $ 965,865.75 Class PT2-IO-20 N/A N/A
Class PT2-20B (3) $ 965,865.75 N/A N/A N/A
Class PT2-21A (2) $ 930,042.57 Class PT2-IO-21 N/A N/A
Class PT2-21B (3) $ 930,042.57 N/A N/A N/A
Class PT2-22A (2) $ 895,543.97 Class PT2-IO-22 N/A N/A
Class PT2-22B (3) $ 895,543.97 N/A N/A N/A
Class PT2-23A (2) $ 862,321.11 Class PT2-IO-23 N/A N/A
Class PT2-23B (3) $ 862,321.11 N/A N/A N/A
Class PT2-24A (2) $ 830,326.93 Class PT2-IO-24 N/A N/A
Class PT2-24B (3) $ 830,326.93 N/A N/A N/A
Class PT2-25A (2) $ 799,516.10 Class PT2-IO-25 N/A N/A
Class PT2-25B (3) $ 799,516.10 N/A N/A N/A
Class PT2-26A (2) $ 769,844.97 Class PT2-IO-26 N/A N/A
Class PT2-26B (3) $ 769,844.97 N/A N/A N/A
Class PT2-27A (2) $ 741,271.46 Class PT2-IO-27 N/A N/A
Class PT2-27B (3) $ 741,271.46 N/A N/A N/A
Class PT2-28A (2) $ 713,755.09 Class PT2-IO-28 N/A N/A
Class PT2-28B (3) $ 713,755.09 N/A N/A N/A
Class PT2-29A (2) $ 687,256.84 Class PT2-IO-29 N/A N/A
Class PT2-29B (3) $ 687,256.84 N/A N/A N/A
Class PT2-30A (2) $ 661,739.14 Class PT2-IO-30 N/A N/A
Class PT2-30B (3) $ 661,739.14 N/A N/A N/A
Class PT2-31A (2) $ 637,165.80 Class PT2-IO-31 N/A N/A
Class PT2-31B (3) $ 637,165.80 N/A N/A N/A
Class PT2-32A (2) $ 613,501.96 Class PT2-IO-32 N/A N/A
Class PT2-32B (3) $ 613,501.96 N/A N/A N/A
Class PT2-33A (2) $ 590,714.03 Class PT2-IO-33 N/A N/A
Class PT2-33B (3) $ 590,714.03 N/A N/A N/A
Class PT2-34A (2) $ 568,769.70 Class PT2-IO-34 N/A N/A
Class PT2-34B (3) $ 568,769.70 N/A N/A N/A
Class PT2-35A (2) $ 547,637.81 Class PT2-IO-35 N/A N/A
Class PT2-35B (3) $ 547,637.81 N/A N/A N/A
Class PT2-36A (2) $ 527,288.37 Class PT2-IO-36 N/A N/A
Class PT2-36B (3) $ 527,288.37 N/A N/A N/A
Class PT2-37A (2) $ 507,692.48 Class PT2-IO-37 N/A N/A
Class PT2-37B (3) $ 507,692.48 N/A N/A N/A
Class PT2-38A (2) $ 488,822.30 Class PT2-IO-38 N/A N/A
Class PT2-38B (3) $ 488,822.30 N/A N/A N/A
Class PT2-39A (2) $ 470,651.05 Class PT2-IO-39 N/A N/A
Class PT2-39B (3) $ 470,651.05 N/A N/A N/A
Class PT2-40A (2) $ 453,152.89 Class PT2-IO-40 N/A N/A
Class PT2-40B (3) $ 453,152.89 N/A N/A N/A
Class PT2-41A (2) $ 436,302.98 Class PT2-IO-41 N/A N/A
Class PT2-41B (3) $ 436,302.98 N/A N/A N/A
Class PT2-42A (2) $ 420,077.37 Class PT2-IO-42 N/A N/A
Class PT2-42B (3) $ 420,077.37 N/A N/A N/A
Class PT2-43A (2) $ 404,452.98 Class PT2-IO-43 N/A N/A
Class PT2-43B (3) $ 404,452.98 N/A N/A N/A
Class PT2-44A (2) $ 389,407.60 Class PT2-IO-44 N/A N/A
Class PT2-44B (3) $ 389,407.60 N/A N/A N/A
Class PT2-45A (2) $ 374,919.84 Class PT2-IO-45 N/A N/A
Class PT2-45B (3) $ 374,919.84 N/A N/A N/A
Class PT2-46A (2) $ 360,969.09 Class PT2-IO-46 N/A N/A
Class PT2-46B (3) $ 360,969.09 N/A N/A N/A
Class PT2-47A (2) $ 347,535.52 Class PT2-IO-47 N/A N/A
Class PT2-47B (3) $ 347,535.52 N/A N/A N/A
Class PT2-48A (2) $ 334,599.98 Class PT2-IO-48 N/A N/A
Class PT2-48B (3) $ 334,599.98 N/A N/A N/A
Class PT2-49A (2) $ 322,144.08 Class PT2-IO-49 N/A N/A
Class PT2-49B (3) $ 322,144.08 N/A N/A N/A
Class PT2-50A (2) $ 310,150.10 Class PT2-IO-50 N/A N/A
Class PT2-50B (3) $ 310,150.10 N/A N/A N/A
Class PT2-51A (2) $ 298,600.94 Class PT2-IO-51 N/A N/A
Class PT2-51B (3) $ 298,600.94 N/A N/A N/A
Class PT2-52A (2) $ 287,480.17 Class PT2-IO-52 N/A N/A
Class PT2-52B (3) $ 287,480.17 N/A N/A N/A
Class PT2-53A (2) $ 276,771.94 Class PT2-IO-53 N/A N/A
Class PT2-53B (3) $ 276,771.94 N/A N/A N/A
Class PT2-54A (2) $ 266,460.99 Class PT2-IO-54 N/A N/A
Class PT2-54B (3) $ 266,460.99 N/A N/A N/A
Class PT2-55A (2) $ 256,532.64 Class PT2-IO-55 N/A N/A
Class PT2-55B (3) $ 256,532.64 N/A N/A N/A
Class PT2-56A (2) $ 246,972.72 Class PT2-IO-56 N/A N/A
Class PT2-56B (3) $ 246,972.72 N/A N/A N/A
Class PT2-57A (2) $ 237,767.62 Class PT2-IO-57 N/A N/A
Class PT2-57B (3) $ 237,767.62 N/A N/A N/A
Class PT2-58A (2) $ 229,034.50 Class PT2-IO-58 N/A N/A
Class PT2-58B (3) $ 229,034.50 N/A N/A N/A
Class PT2-59A (2) $ 220,497.37 Class PT2-IO-59 N/A N/A
Class PT2-59B (3) $ 220,497.37 N/A N/A N/A
Class PT2-60A (2) $ 212,314.83 Class PT2-IO-60 N/A N/A
Class PT2-60B (3) $ 212,314.83 N/A N/A N/A
Class PT2-61A (2) $ 5,444,743.68 Class PT2-IO-61 N/A N/A
Class PT2-61B (3) $ 5,444,743.68 N/A N/A N/A
Class PT2-IO-2 (4) (4) N/A Class PT1-2A April 2005
Class PT2-IO-3 (4) (4) N/A Class PT1-3A May 2005
Class PT2-IO-4 (4) (4) N/A Class PT1-4A June 2005
Class PT2-IO-5 (4) (4) N/A Class PT1-5A July 2005
Class PT2-IO-6 (4) (4) N/A Class PT1-6A August 2005
Class PT2-IO-7 (4) (4) N/A Class PT1-7A September 2005
Class PT2-IO-8 (4) (4) N/A Class PT1-8A October 2005
Class PT2-IO-9 (4) (4) N/A Class PT1-9A November 2005
Class PT2-IO-10 (4) (4) N/A Class PT1-10A December 2005
Class PT2-IO-11 (4) (4) N/A Class PT1-11A January 2006
Class PT2-IO-12 (4) (4) N/A Class PT1-12A February 2006
Class PT2-IO-13 (4) (4) N/A Class PT1-13A March 2006
Class PT2-IO-14 (4) (4) N/A Class PT1-14A April 2006
Class PT2-IO-15 (4) (4) N/A Class PT1-15A May 2006
Class PT2-IO-16 (4) (4) N/A Class PT1-16A June 2006
Class PT2-IO-17 (4) (4) N/A Class PT1-17A July 2006
Class PT2-IO-18 (4) (4) N/A Class PT1-18A August 2006
Class PT2-IO-19 (4) (4) N/A Class PT1-19A September 2006
Class PT2-IO-20 (4) (4) N/A Class PT1-20A October 2006
Class PT2-IO-21 (4) (4) N/A Class PT1-21A November 2006
Class PT2-IO-22 (4) (4) N/A Class PT1-22A December 2006
Class PT2-IO-23 (4) (4) N/A Class PT1-23A January 2007
Class PT2-IO-24 (4) (4) N/A Class PT1-24A February 2007
Class PT2-IO-25 (4) (4) N/A Class PT1-25A March 2007
Class PT2-IO-26 (4) (4) N/A Class PT1-26A April 2007
Class PT2-IO-27 (4) (4) N/A Class PT1-27A May 2007
Class PT2-IO-28 (4) (4) N/A Class PT1-28A June 2007
Class PT2-IO-29 (4) (4) N/A Class PT1-29A July 2007
Class PT2-IO-30 (4) (4) N/A Class PT1-30A August 2007
Class PT2-IO-31 (4) (4) N/A Class PT1-31A September 2007
Class PT2-IO-32 (4) (4) N/A Class PT1-32A October 2007
Class PT2-IO-33 (4) (4) N/A Class PT1-33A November 2007
Class PT2-IO-34 (4) (4) N/A Class PT1-34A December 2007
Class PT2-IO-35 (4) (4) N/A Class PT1-35A January 2008
Class PT2-IO-36 (4) (4) N/A Class PT1-36A February 2008
Class PT2-IO-37 (4) (4) N/A Class PT1-37A March 2008
Class PT2-IO-38 (4) (4) N/A Class PT1-38A April 2008
Class PT2-IO-39 (4) (4) N/A Class PT1-39A May 2008
Class PT2-IO-40 (4) (4) N/A Class PT1-40A June 2008
Class PT2-IO-41 (4) (4) N/A Class PT1-41A July 2008
Class PT2-IO-42 (4) (4) N/A Class PT1-42A August 2008
Class PT2-IO-43 (4) (4) N/A Class PT1-43A September 2008
Class PT2-IO-44 (4) (4) N/A Class PT1-44A October 2008
Class PT2-IO-45 (4) (4) N/A Class PT1-45A November 2008
Class PT2-IO-46 (4) (4) N/A Class PT1-46A December 2008
Class PT2-IO-47 (4) (4) N/A Class PT1-47A January 2009
Class PT2-IO-48 (4) (4) N/A Class PT1-48A February 2009
Class PT2-IO-49 (4) (4) N/A Class PT1-49A March 2009
Class PT2-IO-50 (4) (4) N/A Class PT1-50A April 2009
Class PT2-IO-51 (4) (4) N/A Class PT1-51A May 2009
Class PT2-IO-52 (4) (4) N/A Class PT1-52A June 2009
Class PT2-IO-53 (4) (4) N/A Class PT1-53A July 2009
Class PT2-IO-54 (4) (4) N/A Class PT1-54A August 2009
Class PT2-IO-55 (4) (4) N/A Class PT1-55A September 2009
Class PT2-IO-56 (4) (4) N/A Class PT1-56A October 2009
Class PT2-IO-57 (4) (4) N/A Class PT1-57A November 2009
Class PT2-IO-58 (4) (4) N/A Class PT1-58A December 2009
Class PT2-IO-59 (4) (4) N/A Class PT1-59A January 2010
Class PT2-IO-60 (4) (4) N/A Class PT1-60A February 2010
Class PT2-IO-61 (4) (4) N/A Class PT1-61A March 2010
Class PT2-R (5) $100.00 N/A N/A N/A
</TABLE>
------------
(1) For any Distribution Date (and the related Interest Accrual
Period), this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a
per annum
rate equal to the Pooling-Tier REMIC-1 WAC Rate.
(2) For any Distribution Date (and the related Interest Accrual
Period) this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a
per annum
rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the
weighted
average of the Pooling-Tier REMIC-1 Interest Rates on the
Pooling-Tier
REMIC-1 Regular Interests having an "A" in their class
designation,
provided that, on each Distribution Date on which interest
is
distributable on the Corresponding Pooling-Tier REMIC-2 IO
Interest, this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a
per annum
rate equal to Swap LIBOR subject to a maximum rate equal to the
weighted
average of the Pooling-Tier REMIC-1 Interest Rates on the
Pooling-Tier
REMIC-1 Regular Interests having an "A" in their class
designation.
(3) For any Distribution Date (and the related Interest Accrual
Period) this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a
per annum
rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the
weighted
average of the Pooling-Tier REMIC-1 Interest Rates on the
Pooling-Tier
REMIC-1 Regular Interests having a "B" in their class
designation.
(4) Each Pooling-Tier REMIC 2 IO is an interest-only interest
and does not
have a principal balance. From the Closing Date through and
including the
Corresponding Crossover Distribution Date, each Pooling-Tier
REMIC 2 IO
Interest shall be entitled to receive interest that accrues on
the
Corresponding Pooling-Tier REMIC-1 Regular Interest at a rate
equal to the
excess, if any, of (i) the Pooling-Tier REMIC-1 Interest Rate
for the
Corresponding Pooling-Tier REMIC-1 Regular Interest over (ii)
Swap LIBOR.
After the Corresponding Crossover Distribution Date, the
Pooling-Tier
REMIC 2 IO Interest shall not accrue interest.
(5) The Class PT2-R Interest shall not bear interest.
On each Distribution Date, the interest distributable in respect
of
the Mortgage Loans for such Distribution Date shall be
distributed to the
Pooling-Tier REMIC 2 Regular Interests at the Pooling-Tier
REMIC-1 Interest
Rates shown above.
On each Distribution Date, Realized Losses and payments of
principal
in respect of the Mortgage Loans shall be allocated to the Class
R-1
Certificates in respect of the Class PT2-R Interest pursuant to
Section
4.02(a)(ii) until its Class Certificate Balance is reduced to
zero and then to
the outstanding Pooling-Tier REMIC-2 Regular Interests (other
than the
Pooling-Tier REMIC 2 IO Interests) with the lowest numerical
denomination until
the Pooling-Tier REMIC 2 Principal Amount of such interest is
reduced to zero,
provided that, for Pooling-Tier REMIC 2 Regular Interests with
the same
numerical denomination, such Realized Losses and payments of
principal shall be
allocated pro rata between such Pooling-Tier REMIC-2 Regular
Interests.
Lower-Tier REMIC
The Lower-Tier REMIC shall issue the following interests, and
each
such interest, other than the Class LT-R Interest, is hereby
designated as a
regular interest in the Lower-Tier REMIC. The Class LT-R
Interest is hereby
designated as the sole class of residual interest in the
Lower-Tier REMIC and
shall be represented by the Class R-1 Certificates.
<TABLE>
<CAPTION>
Corresponding
Upper-Tier
Lower-Tier Regular Lower-Tier Initial Lower-Tier Principal REMIC
Regular
Interest Interest Rate Amount Interest
------------------ ---------------
---------------------------------------- ---------------
<S> <C> <C> <C>
Class LT-A-1 (1) 1/2 initial Class Certificate Balance of
A-1
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-A-2 (1) 1/2 initial Class Certificate Balance of
A-2
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-A-3 (1) 1/2 initial Class Certificate Balance of
A-3
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-M-1 (1) 1/2 initial Class Certificate Balance of
M-1
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-M-2 (1) 1/2 initial Class Certificate Balance of
M-2
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-M-3 (1) 1/2 initial Class Certificate Balance of
M-3
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-B-1 (1) 1/2 initial Class Certificate Balance of
B-1
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-B-2 (1) 1/2 initial Class Certificate Balance of
B-2
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-B-3 (1) 1/2 initial Class Certificate Balance of
B-3
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-B-4 (1) 1/2 initial Class Certificate Balance of
B-4
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-Accrual (1) 1/2 Pool Principal Balance plus 1/2
Overcollateralized Amount, less $100
Class LT-IO (2) (2) N/A
Class LT-R (3) (3) N/A
</TABLE>
-----------------------------
(1) The interest rate with respect to any Distribution Date for
these
interests is a per annum variable rate equal to the weighted
average of
the Pooling-Tier REMIC-2 Interest Rates of the Pooling-Tier
REMIC-2
Regular Interests (other than the Pooling-Tier REMIC 2 IO
Interests).
(2) This Lower-Tier Regular Interest is an interest-only
interest and does not
have a Lower-Tier Principal Amount. On each Distribution Date,
this
Lower-Tier Regular Interest shall be entitled to receive all
interest
distributable on the Pooling-Tier REMIC 2 IO Interests.
(3) The Class LT-R Interest does not have a principal amount or
an interest
rate.
Each Lower-Tier Regular Interest is hereby designated as a
regular
interest in the Lower-Tier REMIC. The Class LT-A-1, Class
LT-A-2, Class LT-A-3,
Class LT-M-1, Class LT-M-2, Class LT-M-3, 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").
On each Distribution Date, 50% of the increase in the
Overcollateralized Amount shall 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 shall 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
shall 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 and all Subsequent Recoveries allocable to principal shall
be allocated
(i) 50% to the Class LT-Accrual Interest and (ii) 50% to the
LT-Accretion
Directed Classes (such principal payments and Subsequent
Recoveries shall be
allocated among such LT-Accretion Directed Classes in an amount
equal to 50% of
the principal amounts and Subsequent Recoveries allocated to
their respective
Corresponding Classes), until paid in full. Notwithstanding the
above, principal
payments allocated to the Class X Interest that result in the
reduction in the
Overcollateralized Amount shall be allocated to the Class
LT-Accrual Interest
(until paid in full). Realized Losses shall be applied so that
after all
distributions have been made on each Distribution Date (i) the
Lower-Tier
Principal Amount of each of the LT-Accretion Directed Classes is
equal to 50% of
the Class Certificate Balance of their Corresponding Class, and
(ii) the Class
LT-Accrual Interest is equal to 50% of the aggregate Stated
Principal Balance of
the Mortgage Loans plus 50% of the Overcollateralized Amount.
Any increase in
the Class Certificate Balance of a Class of Principal
Certificates as result of
a Subsequent Recovery shall increase the Lower-Tier Principal
Amount of the
Corresponding Lower-Tier Regular Interest by 50% of such
increase, and the
remaining 50% of such increase shall increase the Class
LT-Accrual Interest.
Upper-Tier REMIC
The Upper-Tier REMIC shall issue the following interests, and
each
such interest, other than the Class UT-R Interest, is hereby
designated as a
regular interest in the Upper-Tier REMIC. The Class UT-R
Interest is hereby
designated as the sole class of residual interests in the
Upper-Tier REMIC and
shall be represented by the Class R-1 Certificates.
<TABLE>
<CAPTION>
Upper-Tier REMIC Upper-Tier Initial Principal Corresponding
Class
Interest Interest Rate Upper-Tier Amount of Certificates
------------------------ -----------------
------------------------- ----------------------
<S> <C> <C> <C>
Class A-1 (1) $297,636,000 Class A-1
Class A-2 (1) $169,463,000 Class A-2
Class A-3 (1) $ 79,117,000 Class A-3
Class M-1 (1) $ 49,720,000 Class M-1
Class M-2 (1) $ 40,265,000 Class M-2
Class M-3 (1) $ 11,555,000 Class M-3
Class B-1 (1) $ 10,154,000 Class B-1
Class B-2 (1) $ 8,403,000 Class B-2
Class B-3 (1) $ 8,754,000 Class B-3
Class B-4 (1) $ 9,804,000 Class B-4
Class IO (2) (2) N/A
Class X (3) (3) Class X
Class UT-R (4) (4) Class R
</TABLE>
-------------
(1) For any Distribution Date (and the related Interest Accrual
Period) this
interest shall bear interest at the lesser of (i) the
Pass-Through Rate
(determined without regard to the applicable WAC Cap) for
the
Corresponding Class of Certificates and (ii) the Upper-Tier
REMIC WAC
Rate.
(2) This interest is an interest-only interest and does not have
a principal
balance. On each Distribution Date, the Class IO Interest shall
be
entitled to receive all interest distributable on the Class
LT-IO
Interest. This interest shall be beneficially owned by the
holders of the
Class X Certificates and shall be held as an asset of the
Supplemental
Interest Trust.
(3) The Class X Interest has an initial principal balance of
$15,406,120.96
but 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 Lower-Tier Principal Amounts of the Lower-Tier Regular
Interests
(other than the Class LT-IO Interest) as of the first day of the
related
Interest Accrual Period. With respect to any Interest Accrual
Period, the
Class X Interest shall bear interest at a rate equal to the
excess, if
any, of the Upper-Tier REMIC WAC Rate over the product of (i) 2
and (ii)
the weighted average of the Lower-Tier Interest Rates of the
Lower-Tier
REMIC Interests (other than the Class LT-IO Interest), where
the
Lower-Tier Interest Rate on the Class LT Accrual Interest is
subject to a
cap equal to zero and each LT Accretion Directed Class is
subject to a cap
equal to the Upper-Tier Interest Rate on its Corresponding Class
of
Upper-Tier Regular Interest. 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.
(4) The Class UT-R Interest does not have an interest rate or a
principal
balance.
On each Distribution Date, interest distributable in respect of
the
Lower-Tier Interests for such Distribution Date shall be deemed
to be
distributed to the interest in the Upper-Tier REMIC at the rates
shown above,
provided that the Class IO Interest shall be entitled to receive
interest before
any other interest in the Upper-Tier REMIC.
On each Distribution Date, all Realized Losses and all payments
of
principal shall be allocated to the Upper-Tier Interests until
the outstanding
principal balance of each such interest equals the outstanding
Class Certificate
Balance of the Corresponding Class of Certificates as of such
Distribution Date.
Certificates
Class Pass-Through Class Certificate
Class Designation Rate Balance
----------------------- ------------------
---------------------
Class A-1(14) (1) $ 297,636,000
Class A-2(14) (2) $ 169,463,000
Class A-3(14) (3) $ 79,117,000
Class M-1(14) (4) $ 49,720,000
Class M-2(14) (5) $ 40,265,000
Class M-3(14) (6) $ 11,555,000
Class B-1(14) (7) $ 10,154,000
Class B-2(14) (8) $ 8,403,000
Class B-3(13) (9) $ 8,754,000
Class B-4(13) (10) $ 9,804,000
Class X (11) 0(11)
Class R-1 (12) $100
Class R-2 (13) $100
------------
(1) The Class A-1 Certificate will bear interest during each
Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month
LIBOR plus
0.100% (0.200% after the first possible Optional Termination
Date) and (2)
the WAC Cap.
(2) The Class A-2 Certificate will bear interest during each
Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month
LIBOR plus
0.200% (0.400% after the first possible Optional Termination
Date) and (2)
the WAC Cap.
(3) The Class A-3 Certificate will bear interest during each
Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month
LIBOR plus
0.320% (0.640% after the first possible Optional Termination
Date) and (2)
the WAC Cap.
(4) The Class M-1 Certificates will bear interest during each
Interest Accrual
Period at a per annum rate equal to the lesser of (1) LIBOR plus
0.430%
(0.645% after the first possible Optional Termination Date) and
(2) the
WAC Cap.
(5) The Class M-2 Certificates will bear interest during each
Interest Accrual
Period at a per annum rate equal to the lesser of (1) LIBOR plus
0.650%
(0.975% after the first possible Optional Termination Date) and
(2) the
WAC Cap.
(6) The Class M-3 Certificates will bear interest during each
Interest Accrual
Period at a per annum rate equal to the lesser of (1) LIBOR plus
0.700%
(1.050% after the first possible Optional Termination Date) and
(2) the
WAC Cap.
(7) The Class B-1 Certificates will bear interest during each
Interest Accrual
Period at a per annum rate equal to the lesser of (1) LIBOR plus
1.180%
(1.770% after the first possible Optional Termination Date) and
(2) the
WAC Cap.
(8) The Class B-2 Certificates will bear interest during each
Interest Accrual
Period at a per annum rate equal to the lesser of (1) LIBOR plus
1.250%
(1.875% after the first possible Optional Termination Date) and
(2) the
WAC Cap.
(9) The Class B-3 Certificate will bear interest during each
Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month
LIBOR plus
1.900% (2.850% after the first possible Optional Termination
Date) and (2)
the WAC Cap.
(10) The Class B-4 Interest will bear interest during each
Interest Accrual
Period at a per annum rate equal to the lesser of (1) 6.000%
(6.500% after
the first possible Optional Termination Date) and (2) the WAC
Cap.
(11) The Class X Certificates will represent beneficial
ownership of (i) the
Class X Interest, (ii) the Class IO Interest, (iii) the right to
receive
Class IO Shortfalls, (iv) amounts in the Supplemental Interest
Trust,
including the Interest Rate Swap Agreement subject to the
obligation to
pay Net Swap Payments and Upper-Tier Carry Forward Amounts and,
without
duplication, Basis Risk Carry Forward Amounts and (v) amounts in
the
Excess Reserve Fund Account, subject to the obligation to make
payments
from the Excess Reserve Fund Account in respect of Upper-Tier
Carry
Forward Amounts and, without duplication, Basis Risk Carry
Forward
Amounts. For federal income tax purposes, the Trustee will treat
a Class X
Certificateholder's obligation to make payments of Basis Risk
Carry
Forward Amounts and, without duplication, Upper-Tier Carry
Forward Amounts
to the Principal Certificates from the Excess Reserve Fund
Account and the
Supplemental Interest Trust 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.
(12) The Class R-1 Certificates do not have an interest rate.
The Class R-1
Certificates represent ownership of the Class PT2-R Interest,
the Class
LT-R Lower-Tier Interest and the Class UT-R Interest.
(13) The Class R-2 Certificates do not have an interest rate.
The Class R-2
Certificates represent the residual interest in Pooling-Tier
REMIC-1.
(14) 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 and the
Supplemental
Interest Trust. Each of these Certificates will also be subject
to the
obligation to pay Class IO Shortfalls as described in Section
8.13. For
federal income tax purposes, any amount distributed on the
Principal
Certificates on any such Distribution Date in excess of the
amount
distributable on their Corresponding Class of Upper-Tier Regular
Interest
on such Distribution Date shall be treated as having been paid
from the
Excess Reserve Fund Account or the Supplemental Interest Trust,
as
applicable, and any amount distributable on such Corresponding
Class of
Upper-Tier Regular Interest on such Distribution Date in excess
of the
amount distributable on Principal Certificates on such
Distribution Date
shall be treated as having been paid to the Supplemental
Interest Trust,
all pursuant to, and as further provided in, Section 8.13. The
Trustee
will treat a Principal Certificateholder's right to receive
payments from
the Excess Reserve Fund Account and the Supplemental Interest
Trust as
payments made pursuant to an interest rate cap contract written
by the
Class X Certificateholders.
The minimum denomination for the 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 Class of Residual Certificates $100,
representing a
100% Percentage Interest in the related Class, (b) the Class P
Certificates will
be a 1% Percentage Interest in such Class 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 A-1, Class A-2 and Class A-3
Certificates.
Class R Certificates......... The Class R-1 and Class R-2
Certificates.
Class B Certificates......... Class B-1, Class B-2, Class B-3
and Class B-4
Certificates.
Class M Certificates......... Class M-1, Class M-2 and Class M-3
Certificates.
Delay Certificates........... The Fixed Rate Certificates.
ERISA-Restricted
Certificates............... Class R Certificates, Class P
Certificates and
Class X Certificates; and any Certificate with a
rating below the lowest applicable permitted
rating under the Underwriters' Exemption.
Fixed Rate Certificates...... Class B-4 Certificates.
LIBOR Certificates........... The Class A-1, Class A-2, Class
A-3, Class M-1,
Class M-2, Class M-3, Class B-1, Class B-2, Class
B-3 Certificates.
Non-Delay Certificates....... LIBOR Certificates.
Offered Certificates......... All Classes of Certificates other
than the Private
Certificates.
Physical Certificates........ Class P Certificates, Class X
Certificates and
Class R Certificates.
Principal Certificates....... Fixed Rate Certificates and LIBOR
Certificates.
Private Certificates......... Class P Certificates and Class X
Certificates.
Rating Agencies.............. Standard & Poor's and
Moody's.
Regular Certificates......... All Classes of Certificates other
than the Class P
Certificates and Class R Certificates.
Residual Certificates........ Class R-1 and Class R-2
Certificates.
Subordinated Certificates.... Class M-1, Class M-2, Class M-3,
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: (a) With respect to any Mortgage
Loan
serviced by Countrywide, those mortgage servicing practices set
forth in Section
3.01 of this Agreement; and (b) with respect to any Mortgage
Loan serviced by
JPMorgan, the servicing and administration of such Mortgage Loan
(i) in the same
manner in which, and with the same care, skill, prudence and
diligence with
which JPMorgan generally services and administers similar
mortgage loans with
similar mortgagors (A) for other third parties, giving due
consideration to
customary and usual standards of practice of prudent
institutional residential
mortgage lenders servicing their own mortgage loans or (B) held
in JPMorgan's
own portfolio, whichever standard is higher, and (ii) in
accordance with
applicable local, state and federal laws, rules and
regulations.
Account: Any of the Collection Account, the Distribution
Account,
any Escrow Account or the Excess Reserve Fund Account. Each
Account shall be an
Eligible Account.
Accredited: Accredited Home Lenders, Inc., a California
corporation,
and its successors in interest.
Accredited Mortgage Loan: Each Mortgage Loan purchased by
the
Purchaser pursuant to the Accredited Purchase Agreement and
identified as an
"Accredited Mortgage Loan" on the Mortgage Loan Schedule.
Accredited Purchase Agreement: The Flow Mortgage Loan Purchase
and
Warranties Agreement, dated as of August 1, 2003, by and between
Accredited and
the Purchaser, solely insofar as the Accredited Purchase
Agreement relates to
the Accredited Mortgage Loans.
Accrued Certificate Interest Distribution Amount: With respect
to
any Distribution Date for each Class of Principal Certificates,
the amount of
interest accrued during the related Interest Accrual Period at
the applicable
Pass-Through Rate on the related Class Certificate Balance
immediately prior to
such Distribution Date, as reduced by such Class's share of Net
Prepayment
Interest Shortfalls and Relief Act Interest Shortfalls for such
Distribution
Date allocated to such Class pursuant to Section 4.02.
Acoustic: Acoustic Home Loans, LLC, a Delaware limited
liability
company, and its successors in interest.
Acoustic Mortgage Loan: Each Mortgage Loan purchased by the
Purchaser pursuant to an Acoustic Purchase Agreement and
identified as an
"Acoustic Mortgage Loan" on the Mortgage Loan Schedule.
Acoustic Purchase Agreement: The Flow Mortgage Loan Purchase
and
Warranties Agreement, dated as of November 1, 2004, by and
between Acoustic and
the Purchaser, solely insofar as the Acoustic Purchase Agreement
relates to the
Acoustic Mortgage Loans.
Adjustable Rate Mortgage Loan: An adjustable rate Mortgage
Loan
purchased pursuant to the Purchase Agreements.
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 any 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.
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: (i) With respect to any First Lien Mortgage
Loan,
the value of the related Mortgaged Property based upon the
appraisal made for
the originator at the time of origination of the Mortgage Loan
or the sale price
of the Mortgaged Property at such time of origination, whichever
is less, and
(ii) with respect to any Second Lien Mortgage Loan, the value,
determined
pursuant to the applicable Underwriting Guidelines, of the
related Mortgaged
Property as of the origination of the Second Lien Mortgage Loan;
provided,
however, that in the case of a refinanced Mortgage Loan, such
value is based
solely upon the appraisal made at the time of origination of
such refinanced
Mortgage Loan.
Assignment of Mortgage: An assignment of the Mortgage, notice
of
transfer or equivalent instrument in recordable form (other than
the assignee's
name and recording information not yet returned from the
recording office),
reflecting the sale of the Mortgage to the Trust.
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 received during the
related Prepayment
Period together with all Compensating Interest paid by the
applicable Servicer
in connection therewith (excluding Prepayment Premiums); (iv)
all amounts
received with respect to such Distribution Date as the
Substitution Adjustment
Amount or Repurchase Price in respect of a Deleted Mortgage Loan
substituted for
or a Mortgage Loan repurchased by the Purchaser as of such
Distribution Date;
(v) any Net Swap Receipts for such Distribution Date; and (vi)
the proceeds
received with respect to the termination of the Trust Fund
pursuant to clause
(a) of Section 9.01, reduced by (y) all 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 Servicers, the
Depositor, the Trustee
(or co-trustee) or the Custodian are entitled to be paid or
reimbursed pursuant
to this Agreement.
Basic Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the 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 the WAC Cap, the excess, if any, of (i) the amount
of interest
such Class of Principal Certificates would otherwise be entitled
to receive on
such Distribution Date had such Pass-Through Rate not been
subject to the WAC
Cap, over (ii) the amount of interest payable on such Class of
Certificates on
such Distribution Date taking into account the WAC Cap and (B)
the Basis Risk
Carry Forward Amount for such Class of Principal Certificates
for all previous
Distribution Dates not previously paid, together with interest
thereon at a rate
equal to the applicable Pass-Through Rate for such Class of
Principal
Certificates for such Distribution Date, without giving effect
to the WAC Cap.
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 from the Excess Reserve Fund
Account or any
Defaulted Swap Termination Payment).
Best's: Best's Key Rating Guide, as the same shall be amended
from
time to time.
Book-Entry Certificates: As specified in the Preliminary
Statement.
Business Day: Any day other than (i) Saturday or Sunday, or (ii)
a
day on which banking and savings and loan institutions, in (a)
the States of New
York, New Jersey, Arizona, Texas and California, (b) the State
in which a
Servicer's servicing operations are located, or (c) the State in
which the
Trustee's operations are located, are authorized or obligated by
law or
executive order to be closed.
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 Principal
Certificates or Residual 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, and reduced by the amount of any Applied Realized
Loss Amounts
previously allocated to such Class of Subordinated Certificates;
provided,
however, that immediately following the Distribution Date on
which a Subsequent
Recovery is distributed, the Class Certificate Balances of any
Class or Classes
of Certificates that have been previously reduced by Applied
Realized Loss
Amounts will be increased, in order of seniority, by the amount
of the
Subsequent Recovery distributed on such Distribution Date (up to
the amount of
Applied Realized Loss Amounts allocated to such Class or
Classes). The Class X
and Class P Certificates have no Certificate Balance.
Certificate Owner: With respect to a Book-Entry Certificate,
the
Person who is the beneficial owner of such Book-Entry
Certificate.
Certificate Register: The register maintained pursuant to
Section
5.02.
Certificateholder or Holder: The Person in whose name a
Certificate
is registered in the Certificate Register, except that, solely
for the purpose
of giving any consent pursuant to this Agreement, any
Certificate registered in
the name of the Depositor or any affiliate of the Depositor
shall be deemed not
to be Outstanding and the Percentage Interest evidenced thereby
shall not be
taken into account in determining whether the requisite amount
of Percentage
Interests necessary to effect such consent has been obtained;
provided, however,
that if any such Person (including the Depositor) owns 100% of
the Percentage
Interests evidenced by a Class of Certificates, such
Certificates shall be
deemed to be Outstanding for purposes of any provision hereof
that requires the
consent of the Holders of Certificates of a particular Class as
a condition to
the taking of any action hereunder. The Trustee is entitled to
rely conclusively
on a certification of the Depositor or any affiliate of the
Depositor in
determining which Certificates are registered in the name of an
affiliate of the
Depositor.
Certification: As defined in Section 8.12(b).
Class: All Certificates bearing the same class designation as
set
forth in the Preliminary Statement.
Class A Certificates: As specified in the Preliminary
Statement.
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) 56.00% of the aggregate Stated Principal
Balance of the
Mortgage Loans for such Distribution Date and (B) the excess, if
any, of the
aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution
Date over the Overcollateralization Floor.
Class A-1 Certificates: All Certificates bearing the class
designation of "Class A-1."
Class A-2 Certificates: All Certificates bearing the class
designation of "Class A-2."
Class A-3 Certificates: All Certificates bearing the class
designation of "Class A-3."
Class B Certificates: As specified in the Preliminary
Statement.
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), and (E) the Class Certificate Balance of the Class B-1
Certificates
immediately prior to such Distribution Date, over (ii) the
lesser of (A) the
product of (x) 87.90% and (y) 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 B-1
Certificates (after
taking into account the distribution of the Class B-1 Principal
Distribution
Amount on such Distribution Date), and (F) the Class Certificate
Balance of the
Class B-2 Certificates immediately prior to such Distribution
Date, over (ii)
the lesser of (A) the product of (x) 90.30% and (y) 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 B-1
Certificates (after
taking into account the distribution of the Class B-1 Principal
Distribution
Amount on such Distribution Date), (F) 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 (G) the Class
Certificate Balance of the Class B-3 Certificates immediately
prior to such
Distribution Date over (ii) the lesser of (A) the product of (x)
92.80% and (y)
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 B-1
Certificates (after
taking into account the distribution of the Class B-1 Principal
Distribution
Amount on such Distribution Date), (F) 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),
(G) 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 (H) the Class Certificate Balance of the Class B-4
Certificates
immediately prior to such Distribution Date, over (ii) the
lesser of (A) the
product of (x) 95.60% and (y) 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 IO Interest: As specified in the Preliminary
Statement.
Class IO Shortfalls: As defined in Section 8.13. For the
avoidance
of doubt, the Class IO Shortfall for any Distribution Date shall
equal the
amount payable to the Class X Certificates in respect of amounts
due to the Swap
Provider on such Distribution Date (other than Defaulted Swap
Termination
Payments) in excess of the amount payable on the Class X
Interest on such
Distribution Date, all as further provided in Section 8.13.
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: As specified in the Preliminary
Statement.
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) the
product of (x) 70.20% and (y) the aggregate Stated Principal
Balance of the
Mortgage Loans for such Distribution Date, and (B) the excess,
if any, of the
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) the product of (x) 81.70% and (y) the
aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution
Date, and (B) the
excess, if any, of the 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) the product of
(x) 85.00% and (y)
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 PTR-2 Interest: The residual interest in Pooling-Tier
REMIC-2
as described in the Preliminary Statement and the related
footnote thereto.
Class R Certificates: As defined in the Preliminary
Statement.
Class R-1 Certificates: All Certificates bearing the class
designation of "Class R-1."
Class R-2 Certificates: All Certificates bearing the class
designation of "Class R-2."
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 from the
Excess Reserve Fund Account or any Defaulted Swap Termination
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: March 30, 2005.
Code: The Internal Revenue Code of 1986, including any successor
or
amendatory provisions.
Collection Accounts: As defined in Section 3.10(a).
Combined Loan-to-Value Ratio or CLTV: As of the date of
origination
and as to any Second Lien Mortgage Loan, the ratio, expressed as
a percentage,
of (a) the sum of (i) the outstanding principal balance of the
Second Lien
Mortgage Loan as of the date of origination and (ii) the
outstanding principal
balance as of the date of origination of any mortgage loan or
mortgage loans
that are senior to or equal in priority to the Second Lien
Mortgage Loan and
which are secured by the same Mortgaged Property to (b) the
Appraised Value.
Compensating Interest: For any Distribution Date, the lesser of
(a)
the Prepayment Interest Shortfall, if any, for such Distribution
Date, with
respect to Principal Prepayments during the related Prepayment
Period, and (b)
the Servicing Fee payable to the applicable 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, to the
extent not required to be released to a Mortgagor in accordance
with the terms
of the related Mortgage Loan Documents.
Conduit Mortgage Loan: Each Mortgage Loan purchased by the
Purchaser
pursuant to its mortgage conduit program and identified as a
"Conduit Mortgage
Loan" on the Mortgage Loan Schedule.
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-GS05H2,
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:
Lower-Tier Upper-Tier Corresponding
Class Designation Regular Interest Class of Certificates
---------------------- ----------------------
----------------------------
Class LT-A-1 Class A-1 Class A-1
Class LT-A-2 Class A-2 Class A-2
Class LT-A-3 Class A-3 Class A-3
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-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
Corresponding Crossover Distribution Date: The Distribution Date
in
the month and year specified in the Preliminary Statement
corresponding to a
Pooling-Tier REMIC 2 IO Interest.
Corresponding Pooling-Tier REMIC 2 IO Interests: As described in
the
Preliminary Statement.
Countrywide: Countrywide Home Loans Servicing LP, a Texas
limited
partnership, and its successors in interest.
Countrywide Serviced Mortgaged Loan: Each Mortgage Loan with
respect
to which Countrywide is listed as Servicer on the Mortgage Loan
Schedule.
Custodial File: With respect to each Mortgage Loan, any
Mortgage
Loan Document which is delivered to the Trustee or the
Custodian, as applicable,
or which at any time comes into the possession of the Trustee or
the Custodian,
as applicable.
Custodian: J.P. Morgan Trust Company, National Association,
a
national banking association, and its successors in
interest.
Custodian Fee: As to each Mortgage Loan and any Distribution
Date,
an amount equal to one month's interest at the Custodian 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 Custodian Fee Rate
on the Stated
Principal Balance of such Mortgage Loan for the period covered
by such payment
of interest.
Custodian Fee Rate: With respect to each Mortgage Loan, 0.00125%
per
annum.
Cut-off Date: March 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 Original
Loan
Sellers or the applicable Servicer as of the Cut-off Date to the
Depositor
setting forth the following information with respect to each
Mortgage Loan: (1)
the applicable Original Loan Seller'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 or a manufactured housing unit); (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) with respect to First Lien Mortgage Loans, the
Loan-to-Value Ratio
at origination, and with respect to Second Lien Mortgage Loans,
the Combined
Loan-to-Value Ratio at origination; (8) the Mortgage Interest
Rate as of the
Cut-off Date; (9) the date on which the Scheduled Payment was
due on the
Mortgage Loan and, if such date is not consistent with the Due
Date currently in
effect, such Due Date; (10) the stated maturity date; (11) the
amount of the
Scheduled Payment as of the Cut-off Date; (12) the last payment
date on which a
Scheduled Payment was actually applied to pay interest and the
outstanding
principal balance; (13) the original principal amount of the
Mortgage Loan; (14)
the principal balance of the Mortgage Loan as of the close of
business on the
Cut-off Date, after deduction of payments of principal due and
collected on or
before the Cut-off Date; (15) with respect to Adjustable Rate
Mortgage Loans,
the Adjustment Date; (16) with respect to Adjustable Rate
Mortgage Loans, the
Gross Margin; (17) with respect to Adjustable Rate Mortgage
Loans, the Lifetime
Rate Cap under the terms of the Mortgage Note; (18) with respect
to Adjustable
Rate Mortgage Loans, a code indicating the type of Index; (19)
with respect to
Adjustable Rate Mortgage Loans, the Periodic Mortgage Interest
Rate Cap under
the terms of the Mortgage Note; (20) with respect to Adjustable
Rate Mortgage
Loans, 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 date of
origination; (31) the
date of the purchase of the Mortgage Loan, if applicable; (32) a
code indicating
whether the Mortgage Loan is assumable; (33) the Mortgage
Interest Rate
adjustment period; (34) the Mortgage Interest Rate floor; (35)
the Mortgage
Interest Rate calculation method (i.e., 30/360, simple interest,
other); (36) a
code indicating whether the Mortgage Loan has been modified;
(37) the one-year
payment history; (38) the Due Date for the first Scheduled
Payment; (39) the
original Scheduled Payment due; (40) with respect to the related
Mortgagor, the
debt-to-income ratio; (41) the Appraised Value of the Mortgaged
Property; (42)
the sales price of the Mortgaged Property if the Mortgage Loan
was originated in
connection with the purchase of the Mortgaged Property; (43)
whether the
Mortgage Loan is covered by PMI policy and name of insurer; (44)
with respect to
each MERS Designated Mortgage Loan, the MERS identification
number; (45) a code
indicating if a Mortgage Loan is or has had a 30-Day
Delinquency; (46) the
applicable Servicer; and (47) a code indicating if the Mortgage
Loan is an
Interest Only Mortgage Loan. With respect to the related
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.
Defaulted Swap Termination Payment: Any Swap Termination
Payment
required to be paid by the Trust to the Swap Provider pursuant
to the Interest
Rate Swap Agreement as a result of an Event of Default (as
defined in the
Interest Rate Swap Agreement) with respect to which the Swap
Provider is the
defaulting party or a Termination Event (as defined in the
Interest Rate Swap
Agreement) (other than Illegality or a Tax Event that is not a
Tax Event Upon
Merger (each as defined in the Interest Rate Swap Agreement ))
with respect to
which the Swap Provider is the sole Affected Party (as defined
in the Interest
Rate Swap Agreement).
Deficient Valuation: With respect to any Mortgage Loan, a
valuation
of the related Mortgaged Property by a court of competent
jurisdiction in an
amount less than the then outstanding principal balance of the
Mortgage Loan,
which valuation results from a proceeding initiated under the
United States
Bankruptcy Code.
Definitive Certificates: Any Certificate evidenced by a
Physical
Certificate and any Certificate issued in lieu of a Book-Entry
Certificate
pursuant to Section 5.02(e).
Delay Certificates: As specified in the Preliminary
Statement.
Deleted Mortgage Loan: As defined in Section 2.03(d).
Denomination: With respect to each Certificate, the amount set
forth
on the face thereof as the "Initial Certificate Balance of this
Certificate" or
the Percentage Interest appearing on the face thereof.
Depositor: GS Mortgage Securities Corp., a Delaware corporation,
and
its successors in interest.
Depository: The initial Depository shall be The Depository
Trust
Company, the nominee of which is CEDE & Co., as the
registered Holder of the
Book-Entry Certificates. The Depository shall at all times be a
"clearing
corporation" as defined in Section 8-102(a)(5) of the Uniform
Commercial Code
of the State of New York.
Depository Institution: Any depository institution or trust
company,
including the Trustee, that (a) is incorporated under the laws
of the United
States of America or any State thereof, (b) is subject to
supervision and
examination by federal or state banking authorities and (c) has
outstanding
unsecured commercial paper or other short-term unsecured debt
obligations that
are rated P-1 by Moody's, F1+ by Fitch and A-1 by Standard &
Poor's (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 GSAMP Trust
2005-HE2 Mortgage
Pass-Through Certificates, Series 2005-HE2." 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 April 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
Servicers) 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 GSAMP
Trust 2005-HE2, Mortgage Pass-Through Certificates, Series
2005-HE2." Funds in
the Excess Reserve Fund Account shall be held in trust for the
Regular
Certificateholders for the uses and purposes set forth in this
Agreement.
Amounts on deposit in the Excess Reserve Fund Account shall not
be invested.
Exchange Act: The Securities Exchange Act of 1934, as
amended.
Expense Fee Rate: As to each Mortgage Loan, a per annum rate
equal
to the sum of the Servicing Fee Rate, the Custodian Fee Rate and
the Trustee Fee
Rate.
Expense Fees: As to each Mortgage Loan, the sum of the
Servicing
Fee, the Custodian 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 Depositor or the Purchaser, as contemplated by this
Agreement), a
determination made by the applicable Servicer that all Insurance
Proceeds,
Condemnation Proceeds, Liquidation Proceeds and other payments
or recoveries
which the applicable Servicer, in its reasonable good faith
judgment, expects to
be finally recoverable in respect thereof have been so
recovered. The applicable
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
occurring in March
2035.
First Lien Mortgage Loan: Any Mortgage Loan secured by a first
lien
Mortgage on the related Mortgaged Property.
First NLC: First NLC Financial Services, LLC, a Florida
limited
liability company, and its successors in interest.
First NLC Mortgage Loan: Each Mortgage Loan purchased by the
Purchaser pursuant to a First NLC Purchase Agreement and
identified as a "First
NLC Mortgage Loan" on the Mortgage Loan Schedule.
First NLC Purchase Agreement: The Mortgage Loan Purchase and
Warranties Agreement, dated as of March 25, 2004, as
supplemented by that
certain letter dated as of March 25, 2004 and as amended by
Amendment No. 1 to
Purchase Agreement, dated as of July 15, 2004, each by and
between First NLC and
the Purchaser, solely insofar as the First NLC Purchase
Agreement relates to the
First NLC Mortgage Loans.
Fitch: Fitch, Inc., and its successors in interest. If Fitch
is
designated as a Rating Agency in the Preliminary Statement, for
purposes of
Section 10.05(b) the address for notices to Fitch shall be
Fitch, Inc., One
State Street Plaza, New York, New York 10004, Attention: MBS
Monitoring - GSAMP
Trust 2005-HE2, or such other address as Fitch may hereafter
furnish to the
Depositor, the Servicer, the Custodian and the Trustee.
Fixed Rate Mortgage Loan: A fixed rate Mortgage Loan.
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 Adjustable Rate Mortgage
Loan,
the fixed percentage amount set forth in the related Mortgage
Note to be added
to the applicable Index to determine the Mortgage Interest
Rate.
Home Loan: A Mortgage Loan categorized as "Home Loan" pursuant
to
Appendix E of Standard & Poor's Glossary.
Index: As to each Adjustable Rate Mortgage Loan, the index from
time
to time in effect for the adjustment of the Mortgage Interest
Rate set forth as
such on the related Mortgage Note.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds
of
insurance policies insuring the Mortgage Loan or the related
Mortgaged Property.
Interest Accrual Period: With respect to each Class of
Non-Delay
Certificates and each Corresponding Class of Lower-Tier Regular
Interests and
each Corresponding Class of Upper-Tier Regular Interests any
Distribution Date,
the period commencing on the immediately preceding Distribution
Date (or, for
the initial Distribution Date, the Closing Date) and ending on
the day
immediately preceding the current Distribution Date. With
respect to the Delay
Certificates, Corresponding Class of Lower-Tier Regular
Interests, each
Pooling-Tier Regular Interest and any Distribution Date, the
calendar month
immediately preceding the month in which such Distribution Date
occurs. For
purposes of computing interest accruals on each Class of
Non-Delay Certificates,
each Corresponding Class of Lower-Tier Regular Interest and each
Corresponding
Class of Upper-Tier Regular Interest, 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
Delay Certificates,
each Corresponding Lower-Tier Regular Interest, each Interest
Accrual Period has
30 days in such period and each year is assumed to have 360
days.
Interest Only Mortgage Loan: A Mortgage Loan for which the
related
Mortgage Note provides for Scheduled Payments of interest only
for a period of
time as specified in the related Mortgage Note.
Interest Rate Swap Agreement: The interest rate swap
agreement,
dated as of March 29, 2005, between Goldman Sachs Capital
Markets, L.P. and
Goldman Sachs Mortgage Company.
Interest Remittance Amount: With respect to any Distribution
Date,
that portion of Available Funds attributable to interest
relating to the
Mortgage Loans.
Interim Servicing Agreement: Collectively, the Flow Interim
Servicing Agreement, dated as of October 1, 2004, between the
Purchaser and
Acoustic relating to the Acoustic Mortgage Loans, and the
Interim Servicing
Agreement, dated as of November 1, 2004, between the Purchaser
and First NLC
relating to certain First NLC Mortgage Loans.
Investment Account: As defined in Section 3.12(a).
Investor: With respect to each MERS Designated Mortgage Loan,
the
Person named on the MERS System as the investor pursuant to the
MERS Procedures
Manual.
JPMorgan: JPMorgan Chase Bank, National Association, a
national
banking association, and its successors in interest.
JPMorgan Serviced Mortgage Loan: Each Mortgage Loan with respect
to
which JPMorgan is listed as Servicer on the Mortgage Loan
Schedule.
Investor Based Exemption: Any of Prohibited Transaction
Class
Exemption ("PTCE") 84-14 (for transactions by independent
"qualified
professional asset managers"), PTCE 91-38 (for transactions by
bank collective
investment funds), PTCE 90-1 (for transactions by insurance
company pooled
separate accounts), PTCE 95-60 (for transactions by insurance
company general
accounts) or PTCE 96-23 (for transactions effected by "in-house
asset
managers"), or any comparable exemption available under Similar
Law.
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 the LIBOR Certificates, the second London Business
Day preceding the
commencement of such Interest Accrual Period.
Lifetime Rate Cap: The provision of each Mortgage Note related
to an
Adjustable Rate Mortgage Loan which provides for an absolute
maximum Mortgage
Interest Rate thereunder. The Mortgage Interest Rate during the
terms of each
Adjustable Rate Mortgage Loan shall not at any time exceed the
Mortgage Interest
Rate at the time of origination of such Adjustable Rate Mortgage
Loan by more
than the amount per annum set forth on the Mortgage Loan
Schedule.
Liquidated Mortgage Loan: With respect to any Distribution Date,
a
defaulted Mortgage Loan (including any REO Property) which was
liquidated or
charged-off in the calendar month preceding the month of such
Distribution Date
and as to which the applicable 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-to-Value Ratio or LTV: With respect to any Mortgage Loan,
at
any time, the ratio (expressed as a percentage) of the principal
balance of the
Mortgage Loan as of the date of determination, to the Appraisal
Value of the
related Mortgaged Property.
London Business Day: Any day on which dealings in deposits of
United
States dollars are transacted in the London interbank
market.
Lower-Tier Interest Rate: As described in the Preliminary
Statement.
Lower-Tier Principal Amount: As described in the Preliminary
Statement.
Lower-Tier Regular Interest: Each of the Class LT-A-1, Class
LT-A-2,
Class LT-A-3, Class LT-M-1, Class LT-M-2, Class LT-M-3, Class
LT-B-1, Class
LT-B-2, Class LT-B-3, Class LT-B-4, Class LT-IO 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.
Mandalay: United Pacific Mortgage Co. Inc., a California
general
partnership, d/b/a Mandalay Mortgage, and its successors in
interest.
Mandalay Mortgage Loan: Each Mortgage Loan purchased by the
Purchaser pursuant to a Mandalay Purchase Agreement and
identified as a
"Mandalay Mortgage Loan" on the Mortgage Loan Schedule.
Mandalay Purchase Agreement: The Master Mortgage Loan
Purchase
Agreement, dated as of December 6, 2004, by and between Mandalay
and the
Purchaser, solely insofar as the Mandalay Purchase Agreement
relates to the
Mandalay Mortgage Loans.
Market Value Change Report: A report setting forth changes
in
property value of the Mortgaged Properties in a format agreed
upon by the
applicable Servicer and the Depositor.
MERS: As defined in Section 2.01.
MERS Designated Mortgage Loan: Mortgage Loans for which (a)
the
applicable Original Loan Seller has designated or will designate
MERS as, and
has taken or will take such action as is necessary to cause MERS
to be, the
mortgagee of record, as nominee for the applicable Original Loan
Seller, in
accordance with MERS Procedure Manual and (b) the applicable
Original Loan
Seller has designated or will designate the Trust as the
Investor on the MERS(R)
System.
MERS Procedure Manual: The MERS Procedures Manual, as it may
be
amended, supplemented or otherwise modified from time to
time.
MERS(R) System: MERS mortgage electronic registry system, as
more
particularly described in the MERS Procedures Manual.
Monthly Statement: The statement made available to the
Certificateholders pursuant to Section 4.03.
Moody's: Moody's Investors Service, Inc., and its successors
in
interest. 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
Servicers, the Custodian
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
applicable
Original Loan Seller'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 or a manufactured housing unit); (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) with respect to First Lien Mortgage Loans, the
Loan-to-Value Ratio
at origination, and with respect to Second Lien Mortgage Loans,
the Combined
Loan-to-Value Ratio at origination; (8) the Mortgage Interest
Rate as of the
Cut-off Date; (9) the date on which the Scheduled Payment was
due on the
Mortgage Loan and, if such date is not consistent with the Due
Date currently in
effect, such Due Date; (10) the stated maturity date; (11) the
amount of the
Scheduled Payment as of the Cut-off Date; (12) the last payment
date on which a
Scheduled Payment was actually applied to pay interest and the
outstanding
principal balance; (13) the original principal amount of the
Mortgage Loan; (14)
the principal balance of the Mortgage Loan as of the close of
business on the
Cut-off Date, after deduction of payments of principal due and
collected on or
before the Cut-off Date; (15) with respect to Adjustable Rate
Mortgage Loans,
the Adjustment Date; (16) with respect to Adjustable Rate
Mortgage Loans, the
Gross Margin; (17) with respect to Adjustable Rate Mortgage
Loans, the Lifetime
Rate Cap under the terms of the Mortgage Note; (18) with respect
to Adjustable
Rate Mortgage Loans, a code indicating the type of Index; (19)
with respect to
Adjustable Rate Mortgage Loans, the Periodic Mortgage Interest
Rate Cap under
the terms of the Mortgage Note; (20) with respect to Adjustable
Rate Mortgage
Loans, 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 date of
origination; (31) the
date of the purchase of the Mortgage Loan, if applicable; (32) a
code indicating
whether the Mortgage Loan is assumable; (33) the Mortgage
Interest Rate
adjustment period; (34) the Mortgage Interest Rate floor; (35)
the Mortgage
Interest Rate calculation method (i.e., 30/360, simple interest,
other); (36) a
code indicating whether the Mortgage Loan has been modified;
(37) the one-year
payment history; (38) the Due Date for the first Scheduled
Payment; (39) the
original Scheduled Payment due; (40) with respect to the related
Mortgagor, the
debt-to-income ratio; (41) the Appraised Value of the Mortgaged
Property; (42)
the sales price of the Mortgaged Property if the Mortgage Loan
was originated in
connection with the purchase of the Mortgaged Property; (43)
whether the
Mortgage Loan is covered by PMI policy and name of insurer; (44)
with respect to
each MERS Designated Mortgage Loan, the MERS identification
number; (45) a code
indicating if a Mortgage Loan is or has had a 30 Day
Delinquency; (46) whether
the Mortgage Loan is an Accredited Mortgage Loan, an Acoustic
Mortgage Loan, a
First NLC Mortgage Loan, a Mandalay Mortgage Loan or a Conduit
Mortgage Loan;
(47) the applicable Servicer for such Mortgage Loan; (48) a code
indicating if
the Mortgage Loan is an Interest Only Mortgage Loan; and (49) a
code indicating
whether such Mortgage Loan is a Home Loan. With respect to the
related 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 subsection 4.02(a)(iii)
(before giving
effect to distributions pursuant to such subsection).
Net Prepayment Interest Shortfall: For any Distribution Date,
the
amount by which the sum of the Prepayment Interest Shortfalls
for such
Distribution Date exceeds the sum of the Compensating Interest
payments made
with respect to such Distribution Date.
Net Swap Payment: With respect to any Distribution Date, any
net
payment (other than a Swap Termination Payment) made by the
Trust to the Swap
Provider on the related Fixed Rate Payer Payment Date (as
defined in the
Interest Rate Swap Agreement).
Net Swap Receipt: With respect to any Distribution Date, any
net
payment (other than a Swap Termination Payment) made by the Swap
Provider to the
Trust on the related Floating Rate Payer Payment Date (as
defined in the
Interest Rate Swap Agreement).
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 that are
rated by one or
more rating agencies.
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.
Non-Permitted Transferee: As defined in Section 8.11(e).
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 applicable 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 applicable
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
applicable Servicer with responsibility for the servicing of the
Mortgage Loans
required to be serviced by such Servicer and listed on a list
delivered to the
Trustee pursuant to this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be
in-house counsel for a Servicer or a Subservicer, reasonably
acceptable to the
Trustee; provided, that any Opinion of Counsel relating to (a)
qualification of
any Trust REMIC as a REMIC or (b) compliance with the REMIC
Provisions, must
(unless otherwise stated in such Opinion of Counsel) be an
opinion of counsel
who (i) is in fact independent of such Servicer of the Mortgage
Loans, (ii) does
not have any material direct or indirect financial interest in
such Servicer of
the Mortgage Loans or in an affiliate of either and (iii) is not
connected with
such Servicer of the Mortgage Loans as an officer, employee,
director or person
performing similar functions.
Optional Termination Date: The date determined as follows:
(i) JPMorgan (at the direction of the Majority Class X
Certificateholder (as evidenced on the Certificate Register)),
pursuant to
Section 9.01, shall cause the Optional Termination Date to occur
on any
Distribution Date on which the aggregate Stated Principal
Balance of the
Mortgage Loans, as of the last day of the related Due Period, is
equal to 10% 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); or
(ii) JPMorgan may cause the Optional Termination Date to occur
on
Distribution Date on which the aggregate Stated Principal
Balance of the
Mortgage Loans, as of the last day of the related Due Period, is
equal to 5% or
less of the Cut-off Date Pool Principal Balance.
In the event that JPMorgan acting for its own account and/or
JPMorgan (at the direction of the Majority Class X
Certificateholder) have the
right to cause the Optional Termination Date to occur at the
same time, the
first Person to provide notice to exercise such right will have
the right to
purchase the Mortgage Loans.
Original Loan Sellers: With respect to each Accredited
Mortgage
Loan, Accredited, with respect to each Acoustic Mortgage Loan,
Acoustic, with
respect to each First NLC Mortgage Loan, First NLC, with respect
to each
Mandalay Mortgage Loan, Mandalay and with respect to each
Conduit Mortgage Loan,
the Person who sold such Conduit Mortgage Loan to the
Purchaser.
Original Purchase Date: With respect to any Mortgage Loan, the
date
on which the applicable Original Loan Seller sold such Mortgage
Loan to the
Purchaser pursuant to the applicable Purchase Agreement.
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 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 applicable Servicer in respect of any Remittance
Date representing
the aggregate of all payments of principal and interest, net of
the Servicing
Fee, that were due during the related Due Period on the Mortgage
Loans and that
were delinquent on the related Remittance Date, plus certain
amounts
representing assumed payments not covered by any current net
income on the
Mortgaged Properties acquired by foreclosure or deed in lieu of
foreclosure as
determined pursuant to Section 4.01.
Pass-Through Margin: With respect to each Class of LIBOR
Certificates, the following percentages: Class A-1 Certificates,
0.100%; Class
A-2 Certificates, 0.200%; Class A-3 Certificates, 0.320%; Class
M-1
Certificates, 0.430%; Class M-2 Certificates, 0.650%; Class M-3
Certificates,
0.700%; Class B-1 Certificates, 1.180%; Class B-2 Certificates,
1.250% and Class
B-3 Certificates, 1.900%. On the first possible Optional
Termination Date, the
Pass-Through Margins shall increase to: Class A-1 Certificates,
0.200%; Class
A-2 Certificates, 0.400%; Class A-3 Certificates, 0.640%; Class
M-1
Certificates, 0.645%; Class M-2 Certificates, 0.975%; Class M-3
Certificates,
1.050%; Class B-1 Certificates, 1.770%; Class B-2 Certificates,
1.875%; and
Class B-3 Certificates, 2.850%.
Pass-Through Rate: For each Class of Regular Certificates,
each
Pooling-Tier REMIC-1 Regular Interest, each Pooling-Tier REMIC 2
Regular
Interest, each Lower-Tier Regular Interest and each Upper-Tier
Regular Interest,
the per annum rate set forth or calculated in the manner
described in the
Preliminary Statement.
Percentage Interest: As to any Certificate, the percentage
interest
evidenced thereby in distributions required to be made on the
related Class,
such percentage interest being set forth on the face thereof or
equal to the
percentage obtained by dividing the Denomination of such
Certificate by the
aggregate of the Denominations of all Certificates of the same
Class.
Periodic Mortgage Interest Rate Cap: With respect to each
Adjustable
Rate Mortgage Loan, the provision of each Mortgage Note which
provides for an
absolute maximum amount by which the Mortgage Interest Rate
therein may increase
or decrease on an Adjustment Date above or below the Mortgage
Interest Rate
previously in effect. The Periodic Mortgage Interest Rate Cap
for each
Adjustable Rate Mortgage Loan is the rate set forth on the
Mortgage Loan
Schedule.
Periodic Mortgage Interest Rate Floor: With respect to each
Adjustable Rate Mortgage Loan, the provision of each Mortgage
Note which
provides for an absolute minimum amount by which the Mortgage
Interest Rate
therein may increase or decrease on an Adjustment Date above or
below the
Mortgage Interest Rate previously in effect. The Periodic
Mortgage Interest Rate
Floor for each Adjustable Rate Mortgage Loan is the rate set
forth on the
Mortgage Loan Schedule.
Permitted Investments: Any one or more of the following
obligations
or securities acquired at a purchase price of not greater than
par, regardless
of whether issued by a 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,
"A-1+" by
S&P and "F1+" by Fitch (in each case, to the extent they are
designated as
Rating Agencies in the Preliminary Statement);
(iii) repurchase obligations with respect to any security
described
in clause (i) above entered into with a Depository Institution
(acting as
principal);
(iv) securities bearing interest or sold at a discount that
are
issued by any corporation incorporated under the laws of the
United States
of America or any state thereof and that are rated by each
Rating Agency
that rates such securities in its highest long-term unsecured
rating
categories at the time of such investment or contractual
commitment
providing for such investment;
(v) commercial paper (including both non-interest-bearing
discount
obligations and interest-bearing obligations payable on demand
or on a
specified date not more than 30 days after the date of
acquisition
thereof) that is rated by each Rating Agency that rates such
securities in
its highest short-term unsecured debt rating available at the
time of such
investment; (vi) units of money market funds, including money
market funds
advised by the Depositor or the Trustee or an Affiliate thereof,
that have
been rated "Aaa" by Moody's, "AAAm" or "AAAm-G" by Standard
& Poor's and
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 any Trust REMIC to fail to
qualify as a
REMIC at any time that the Certificates are outstanding. The
terms "United
States," "State" and "international organization" shall have the
meanings set
forth in Section 7701 of the Code or successor provisions. A
corporation will
not be treated as an instrumentality of the United States or of
any State or
political subdivision thereof for these purposes if all of its
activities are
subject to tax and, with the exception of 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.
Plan: As defined in Section 5.02(b).
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.
Pooling-Tier Interest Rate: As specified in the Preliminary
Statement.
Pooling-Tier REMIC-1: As described in the Preliminary
Statement.
Pooling-Tier REMIC-1 Interest Rate: As described in the
Preliminary
Statement.
Pooling-Tier REMIC-1 Principal Amount: As described in the
Preliminary Statement.
Pooling-Tier REMIC-1 Regular Interest: As described in the
Preliminary Statement.
Pooling-Tier REMIC-1 WAC Rate: 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 than the
applicable Expense Fee Rate) then in effect on the beginning of
the related Due
Period on the Mortgage Loans, multiplied by (b) 30 divided by
the actual number
of days in the related Interest Accrual Period.
Pooling-Tier REMIC-2: As described in the Preliminary
Statement.
Pooling-Tier REMIC-2 Interest Rate: As described in the
Preliminary
Statement.
Pooling-Tier REMIC 2 IO Interest: Any of the Pooling-Tier
REMIC-2
Regular Interests with the designation "IO" in its name.
Pooling-Tier REMIC 2 Principal Amount: As described in the
Preliminary Statement.
Pooling-Tier REMIC 2 Regular Interest: As described in the
Preliminary Statement.
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 applicable
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 Distribution Date,
the
calendar month preceding the month in which such Distribution
Date occurs.
Prepayment Premium: Any prepayment premium, penalty or
charge
collected by the applicable 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
applicable Servicer
on or prior to the related Determination Date or advanced by the
applicable
Servicer for 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 Servicers during the related
Prepayment
Period, (iv) the portion of the Repurchase Price allocable to
principal with
respect to each Deleted Mortgage Loan, the repurchase obligation
for which arose
during the related Prepayment Period, that was repurchased
during the period
from the prior Distribution Date through the Remittance Date for
the current
Distribution Date, (v) the portion of all Substitution
Adjustment Amounts
allocable to principal with respect to the substitutions of
Mortgage Loans that
occur during the calendar month in which such Distribution Date
occurs, 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 March
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 Accredited Purchase Agreement, the
Acoustic
Purchase Agreement, the First NLC Purchase Agreement, the
Mandalay Purchase
Agreement or, with respect to any Conduit Mortgage Loans, the
Master Loan
Purchase Agreement by and between the related Original Loan
Seller and the
Purchaser, as applicable.
Purchaser: Goldman Sachs Mortgage Company, a New York
limited
partnership, and its successors in interest, as purchaser of the
Mortgage Loans
under the Purchase Agreements.
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 Servicers.
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 related 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 Business 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 Provisions: Provisions of the federal income tax law
relating
to real estate mortgage investment conduits, which appear at
Sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and
related provisions,
and regulations promulgated thereunder, as the foregoing may be
in effect from
time to time as well as provisions of applicable state laws.
Remittance Date: With respect to any Distribution Date, no
later
than 12:00 PM, Central Time on the Business Day immediately
preceding such
Distribution Date.
REO Disposition: The final sale by the applicable 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.
Representations and Warranties Agreement: The Representations
and
Warranties Agreement, dated as of March 30, 2005, by and between
the Depositor
and the Purchaser, a copy of which is attached hereto as Exhibit
P.
Repurchase Price: With respect to any Mortgage Loan repurchased
by
the Purchaser, 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 (or, with
respect to any First NLC Mortgage Loan repurchased by the
Purchaser,
unreimbursed Servicing Advances reasonably incurred by the
applicable Servicer)
and (iv) all expenses incurred (or, with respect to any First
NLC Mortgage Loan
repurchased by the Purchaser, reasonably incurred) by the
applicable 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
applicable Servicer's
or Trustee's, as the case may be, enforcement of the Purchaser's
repurchase
obligations, as applicable, 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 a
Servicer
to the Custodian or the Trustee, as applicable, 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.
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.
Second Lien Mortgage Loan: A Mortgage Loan secured by a second
lien
Mortgage on the related Mortgaged Property.
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, 56.00%.
Servicer: With respect to (i) each Accredited Mortgage Loan,
JPMorgan, (ii) each Acoustic Mortgage Loan, Countrywide after
the Servicing
Transfer Date, (iii) each First NLC Mortgage Loan, Countrywide
after the
Servicing Transfer Date with respect to each Countrywide
Serviced Mortgage Loan
and JPMorgan with respect to each JPMorgan Serviced Mortgage
Loan, and (iv) each
Mandalay Mortgage Loan and each Conduit Mortgage Loan,
Countrywide, and in any
case, if a successor servicer is appointed hereunder, such
successor servicer.
Prior to the Servicing Transfer Date, "Servicer" shall mean
Acoustic with
respect to the Acoustic Mortgage Loans, or First NLC with
respect to certain
First NLC Mortgage Loans previously identified to the Trustee by
the Depositor
or its designee.
Servicer Remittance Report: As defined in Section 4.03(d).
Servicing Advances: The reasonable "out-of-pocket" costs and
expenses (including legal fees) incurred prior to, on, or after
the Cut-off Date
by the applicable 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 applicable 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 applicable
Servicer to
perform its obligations under this Agreement. No Servicer shall
be required to
make any Nonrecoverable Servicing Advances.
Servicing Fee: With respect to each Servicer, each Mortgage
Loan
serviced by such Servicer 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 such 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
such 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 applicable 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 any 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 such 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 7.02) to service the Mortgage Loans properly and
effectively.
Servicing Transfer Date: On or about April 1, 2005.
Similar Law: As defined in Section 5.02(b).
60+ Day Delinquent Mortgage Loan: Each Mortgage Loan with
respect to
which any portion of a Scheduled Payment is, as of the last day
of the prior Due
Period, two months or more past due (without giving effect to
any grace period),
each Mortgage Loan in foreclosure, all REO Property and each
Mortgage Loan for
which the Mortgagor has filed for bankruptcy.
Specified Overcollateralized Amount: Prior to the Stepdown Date,
an
amount equal to 2.20% of the Cut-off Date Pool Principal
Balance. On and after
the Stepdown Date, an amount equal to 4.40% 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; provided, further, that when the Class
Certificate Balance of
each Class of Principal Certificates has been reduced to zero,
the Specified
Overcollateralized Amount will thereafter equal zero.
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 - GSAMP Trust 2005-HE2,
or such other
address as Standard & Poor's may hereafter furnish to the
Depositor, the
Servicers, the Custodian 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 related
Servicer on or prior to the related Determination Date or
advanced by the
related 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
April 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 "Qualified Substitute Mortgage Loan"
as
that term is defined in the Representations and Warranties
Agreement.
Substitution Adjustment Amount: Any amount to be paid in
connection
with a Substitute Mortgage Loan pursuant to fourth full
paragraph of Section 3
of the Representations and Warranties Agreement, and any
additional amounts
required to be paid by the Purchaser in connection with such a
substitution.
Supplemental Interest Trust: The corpus of a trust created
pursuant
to Section 4.06 of this Agreement, consisting of the Interest
Rate Swap
Agreement, the Class IO Interest and the right to receive Class
IO Shortfalls,
subject to the obligation to pay amounts specified in
Section
4.06.
Swap LIBOR: With respect to any Distribution Date (and the
related
Interest Accrual Period), the product of (i) USD-LIBOR-BBA (as
used in the
Interest Swap Agreement), (ii) two, and (iii) the quotient of
(a) the actual
number of days in the Interest Accrual Period for the Principal
Certificates
divided by (b) 30.
Swap Provider: Goldman Sachs Mitsui Marine Derivative
Products,
L.P., a Delaware limited partnership, and its successors in
interest.
Swap Termination Payment: Any payment payable by the Trust or
the
Swap Provider upon termination of the Interest Rate Swap
Agreement as a result
of an Event of Default (as defined in the Interest Rate Swap
Agreement) or a
Termination Event (as defined in the Interest Rate Swap
Agreement).
Tax Matters Person: The Holder of the (i) Class R-2 and (ii)
Class
R-1 Certificates designated as "tax matters person" of (i)
Pooling-Tier REMIC-1,
and (ii) Pooling-Tier REMIC 2, the Lower-Tier REMIC and the
Upper-Tier REMIC,
respectively, in the manner provided under Treasury Regulations
Section
1.860F-4(d) and Treasury Regulations Section
301.6231(a)(7)-1.
Tax Service Contract: As defined in Section 3.09(a).
Telerate Page 3750: The display page currently so designated on
the
Bridge Telerate Service (or such other page as may replace that
page on that
service for displaying comparable rates or prices).
Termination Price: As defined in Section 9.01.
30 Day Delinquency: The failure of the Mortgagor to make any
Scheduled Payment due under the Mortgage Note on or prior to the
date which is
30 days after such payment's Due Date.
Total Monthly Excess Spread: As to any Distribution Date, an
amount
equal to the excess if any, of (i) the interest collected on the
Mortgage Loans
received by the Servicers on or prior to the related
Determination Date or
advanced by the Servicers for the related Remittance Date (net
of Expense Fees)
and plus any Net Swap Receipts and less any Net Swap Payments
for such
Distribution Date, over (ii) the sum of the interest 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 36.00% 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
------------------------------ ---------------
April 2008 through March 2009 3.750% for the first month, plus
an
additional 1/12th of 2.000% for
each month thereafter (e.g.,
approximately 3.917% in May 2008)
April 2009 through March 2010 5.750% for the first month, plus
an
additional 1/12th of 1.750% for
each month thereafter (e.g.,
approximately 5.896% in May 2009)
April 2010 through March 2011 7.500% for the first month, plus
an
additional 1/12th of 0.500% for
each month thereafter (e.g.,
approximately 7.542% in May 2010)
April 2011 and thereafter 8.000%
Trust: The express trust created hereunder in Section
2.01(c).
Trust Fund: The corpus of the trust created hereunder consisting
of
(i) the Mortgage Loans and all interest and principal received
on or with
respect thereto after the related Cut-off Date, other than such
amounts which
were due on the Mortgage Loans on or before the related Cut-off
Date; (ii) the
Collection Account, the Excess Reserve Fund Account, the
Distribution Account,
and all amounts deposited therein pursuant to the applicable
provisions of this
Agreement; (iii) property that secured a Mortgage Loan and has
been acquired by
foreclosure, deed-in-lieu of foreclosure or otherwise; (iv) the
Interest Rate
Swap Agreement; (v) the Interim Servicing Agreements, (solely
insofar as the
Interim Servicing Agreements relate to the Mortgage Loans); (vi)
the Depositor's
rights under the Representations and Warranties Agreement; (vii)
the
Supplemental Interest Trust; and (viii) all proceeds of the
conversion,
voluntary or involuntary, of any of the foregoing.
Trust REMIC: Any of Pooling-Tier REMIC-1, Pooling-Tier REMIC 2,
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, 0.0063%
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.
U.S. Person: (i) A citizen or resident of the United States;
(ii) a
corporation (or entity treated as a corporation for tax
purposes) created or
organized in the United States or under the laws of the United
States or of any
State thereof, including, for this purpose, the District of
Columbia; (iii) a
partnership (or entity treated as a partnership for tax
purposes) organized in
the United States or under the laws of the United States or of
any state
thereof, including, for this purpose, the District of Columbia
(unless provided
otherwise by future Treasury regulations); (iv) an estate whose
income is
includible in gross income for United States income tax purposes
regardless of
its source; or (v) a trust, if a court within the United States
is able to
exercise primary supervision over the administration of the
trust and one or
more U.S. Persons have authority to control all substantial
decisions of the
trust. Notwithstanding the last clause of the preceding
sentence, to the extent
provided in Treasury regulations, certain trusts in existence on
August 20,
1996, and treated as U.S. Persons prior to such date, may elect
to continue to
be U.S. Persons.
Underwriters' Exemption: Any exemption listed in footnote 1 of,
and
amended by, Prohibited Transaction Exemption 2002-41, 67 Fed.
Reg. 54487 (2002),
or any successor exemption.
Underwriting Guidelines: The underwriting guidelines attached to
the
applicable Purchase Agreement.
Unpaid Interest Amounts: As of any Distribution Date and any
Class
of Certificates, the sum of (a) the portion of the Accrued
Certificate Interest
Distribution Amount from prior Distribution Dates remaining
unpaid immediately
prior to the current Distribution Date and (b) interest on such
unpaid amount in
clause (a) at the applicable Pass-Through Rate (to the extent
permitted by
applicable law).
Upper-Tier 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 Upper-Tier Interest Rate for the Class of
Corresponding
Upper-Tier REMIC Regular Interest is based upon the Upper-Tier
REMIC WAC Rate,
the excess, if any, of (i) the amount of interest such Class of
Upper-Tier
Regular Interest would otherwise be entitled to receive on such
Distribution
Date had such Upper-Tier REMIC Regular Interest not been subject
to the
Upper-Tier REMIC WAC Rate, over (ii) the amount of interest
payable on such
Class of Certificates on such Distribution Date taking into
account the
Upper-Tier REMIC WAC Rate and (B) the Upper-Tier Carry Forward
Amount for such
Class of Certificates for all previous Distribution Dates not
previously paid,
together with interest thereon at a rate equal to the applicable
Upper-Tier
Interest Rate for such Class of Certificates for such
Distribution Date, without
giving effect to the Upper-Tier REMIC WAC Rate.
Upper-Tier Interest Rate: As described in the Preliminary
Statement.
Upper-Tier Regular Interest: As described in the Preliminary
Statement.
Upper-Tier REMIC: As described in the Preliminary Statement.
Upper-Tier REMIC WAC Rate: For any Distribution Date, the
weighted
average of the Lower-Tier Interest Rates on the Lower-Tier
Regular Interests
(other than the Class LT-IO Interest) as of the first day of the
related
Interest Accrual Period, weighted on the basis of the Lower-Tier
Principal
Amounts of such Lower-Tier Regular Interests as of the first day
of the related
Interest Accrual Period.
Voting Rights: The portion of the voting rights of all of
the
Certificates which is allocated to any Certificate. As of any
date of
determination, (a) 1% of all Voting Rights shall be allocated to
the Class X
Certificates, if any (such Voting Rights to be allocated among
the holders of
Certificates of each such Class in accordance with their
respective Percentage
Interests), (b) 1% of all Voting Rights shall be allocated to
the Class P
Certificates, if any, and (c) the remaining Voting Rights shall
be allocated
among Holders of the remaining Classes of Certificates in
proportion to the
Certificate Balances of their respective Certificates on such
date.
WAC Cap: With respect to the Mortgage Loans as of any
Distribution
Date, a per annum rate equal to (a) the weighted average of the
Adjusted Net
Mortgage Interest Rates then in effect on the beginning of the
related Due
Period on the Mortgage Loans, plus any Net Swap Receipts and
less any Net Swap
Payments for such Distribution Date, in each case converted to a
per annum rate
on the Mortgage Loans calculated on the basis of the actual
number of days in
the related Interest Accrual Period and a 360-day year. In the
case of the Class
B-4 Certificates, the WAC Cap will be converted to a rate
calculated on the
basis of a 360-day year with 30 days in each 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 Custodian,
with respect to the Mandalay Mortgage Loans and the Conduit
Mortgage Loans, and
the Trustee, with respect to the Accredited Mortgage Loans, the
Acoustic
Mortgage Loans and the First NLC Mortgage Loans, 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 any Mortgage Note for an endorsement, the
endorsement may be
contained on an allonge, if state law so allows and the Trustee
is so
advised by the Depositor that state law so allows;
(ii) except with respect to the Mandalay Mortgage Loans and
the
Conduit Mortgage Loans, the original of any guarantee executed
in
connection with the Mortgage Note;
(iii) (A) with respect to the Accredited Mortgage Loans, the
Acoustic Mortgage Loans and the First NLC Mortgage Loans, the
original
Mortgage with evidence of recording thereon. If in connection
with any
Mortgage Loan, the applicable Original Loan Seller, 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
applicable
Original Loan Seller, (to the extent that it has not previously
delivered
the same to the Purchaser or the Trustee) shall deliver or cause
to be
delivered to the Trustee, 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 (or certified by) the applicable Original Loan
Seller (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 applicable
Original
Loan Seller; 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;
(B) with respect to the Mandalay Mortgage Loans and the
Conduit Mortgage Loans, the original Mortgage with evidence
of
recording thereon. If in connection with any Mortgage Loan,
the
applicable Original Loan Seller, 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
applicable Original Loan Seller, (to the extent that it has
not
previously delivered the same to the Purchaser or the
Custodian)
shall deliver or cause to be delivered to the Custodian, 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 (or
certified by) the applicable Original Loan Seller (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 Custodian
upon
receipt thereof by the applicable Original Loan Seller; 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) except with respect to each MERS Designated Mortgage Loan,
the
original Assignment of Mortgage for each Mortgage Loan endorsed
in blank
and in recordable form;
(vi) (A) with respect to the Accredited Mortgage Loans, the
Acoustic
Mortgage Loans and the First NLC Mortgage Loans, the originals
of all
intervening Assignments of Mortgage (if any) evidencing a
complete chain
of assignment from the applicable originator (or MERS with
respect to each
MERS Designated Mortgage Loan) to the last endorsee with
evidence of
recording thereon, or if any such intervening assignment has not
been
returned from the applicable recording office or has been lost
or if such
public recording office retains the original recorded
Assignments of
Mortgage, the applicable Original Loan Seller (to the extent
that it has
not previously delivered the same to the Purchaser or the
Trustee) shall
deliver or cause to be delivered to the Trustee, 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 (or
certified by)
the applicable Original Loan Seller (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 applicable Original Loan Seller; 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;
(B) with respect to the Mandalay Mortgage Loans and the
Conduit Mortgage Loans, the originals of all intervening
Assignments
of Mortgage (if any) evidencing a complete chain of assignment
from
the applicable originator (or MERS with respect to each MERS
Designated Mortgage Loan) to the last endorsee with evidence
of
recording thereon, or if any such intervening assignment has
not
been returned from the applicable recording office or has been
lost
or if such public recording office retains the original
recorded
Assignments of Mortgage, the applicable Original Loan Seller (to
the
extent that it has not previously delivered the same to the
Purchaser or the Trustee) shall deliver or cause to be delivered
to
the Custodian, 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 (or certified by) the
applicable
Original Loan Seller (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
Custodian
upon receipt thereof by the applicable Original Loan Seller; 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 or duplicate lender's title policy and any
riders
thereto or, any one of an original title binder, an original or
copy of
the preliminary title report or an original or copy of the
title
commitment, and if, copies then certified by the title company;
and
(viii) a security agreement, chattel mortgage or equivalent
document
executed in connection with the Mortgage (if provided).
The Depositor shall use reasonable efforts to assist the
Custodian
and the Trustee, as applicable, and the applicable Servicer in
enforcing the
obligations of the Purchaser under the Representations and
Warranties Agreement,
and the obligations of Acoustic and First NLC under their
respective Interim
Servicing Agreements.
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 one or
more lost note affidavits are provided to cover multiple missing
Mortgage Notes
on the Closing Date, the Depositor shall use reasonable efforts
to cause the
Purchaser to deliver to the Custodian or the Trustee, as
applicable, the
applicable individual lost note affidavits within ten (10)
Business Days of the
Closing Date. If the applicable Original Loan Seller fails to
deliver the
required individual lost note affidavits within the specified
period of time,
the Custodian or the Trustee, as applicable, shall notify the
Purchaser to take
such remedial actions, including, without limitation, the
repurchase by the
Purchaser of such Mortgage Loan within 60 days of the Closing
Date with respect
to any Accredited Mortgage Loan, any Acoustic Mortgage Loan or
First NLC
Mortgage Loan, or within 180 days of the Closing Date with
respect to any
Mandalay Mortgage Loan or any Conduit Mortgage Loan.
The Depositor shall use reasonable efforts to cause the
Purchaser to
deliver to the Custodian or the Trustee, as applicable, the
applicable recorded
document promptly upon receipt from the respective recording
office but in no
event later than 180 days from the Closing Date.
If any Mortgage has been recorded in the name of Mortgage
Electronic
Registration System, Inc. ("MERS") or its designee, no
Assignment of Mortgage in
favor of the Trustee will be required to be prepared or
delivered and instead,
the applicable Servicer shall take all reasonable actions as are
necessary at
the expense of the Depositor to cause the Trust to be shown as
the owner of the
related Mortgage Loan on the records of MERS for the purpose of
the system of
recording transfers of beneficial ownership of mortgages
maintained by MERS.
The Depositor shall use reasonable efforts to cause the
Purchaser to
forward to the Custodian or the Trustee, as applicable,
additional documents
evidencing an assumption, modification, consolidation or
extension of a Mortgage
Loan approved by the applicable Original Loan Seller in
accordance with the
terms of the applicable Purchase Agreement. All such mortgage
documents held by
the Custodian or the Trustee, as applicable, as to each Mortgage
Loan shall
constitute the "Custodial File."
On or prior to the Closing Date, the Depositor shall use
reasonable
efforts to cause the Purchaser to deliver to the Custodian or
the Trustee, as
applicable, Assignments of Mortgages, in blank, for each
applicable Mortgage
Loan (except with respect to each MERS Designated Mortgage
Loan). The Depositor
shall use reasonable efforts to cause the Purchaser to cause the
Assignments of
Mortgage with completed recording information to be provided to
the related
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
Depositor of the fully completed Assignments of Mortgages in
recordable form,
the Depositor shall promptly submit or cause to be submitted for
recording, at
the expense of the Purchaser, at no expense to the Trust Fund,
the Custodian,
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 (i) 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 or (ii) if
such Mortgage
Loan is a MERS Designated Mortgage Loan. If the Assignment of
Mortgage is to be
recorded, the Depositor shall use reasonable efforts to cause
the Purchaser to
assign the Mortgage at the Purchaser's expense to "Deutsche Bank
National Trust
Company, as trustee under the Pooling and Servicing Agreement
dated as of March
1, 2005, GSAMP Trust 2005-HE2." In the event that any such
assignment is lost or
returned unrecorded because of a defect therein with respect to
any Mortgage
Loan, and such defect is not cured, the Trustee shall cause the
Purchaser to
repurchase such Mortgage Loan pursuant to the Representations
and Warranties
Agreement.
On or prior to the Closing Date, the Depositor shall deliver to
the
Custodian or the Trustee, as applicable, and each Servicer a
copy of the Data
Tape Information in electronic, machine readable medium in a
form mutually
acceptable to the Depositor, each Servicer, the Custodian 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 Custodian,
the Trustee and
each Servicer, and the Custodian and the Trustee shall promptly
upon receipt of
the Mortgage Loan Schedule (or any other mortgage loan schedules
received by the
Custodian or the Trustee from the Depositor) inform the
Depositor of receipt
thereof.
In the event, with respect to any 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 Custodian or the
Trustee, as
applicable, within 90 days following the applicable Original
Purchase Date, and
in the event that the Purchaser does not cause such failure to
be cured within
60 days of discovery of 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 Purchaser pursuant to the Representations
and Warranties
Agreement, at the price and in the manner specified in Section
2.03. The
foregoing repurchase remedy shall not apply in the event that
the Purchaser
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 Purchaser 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 Purchaser 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 Purchaser shall be deemed to have been satisfied upon
delivery by the
Purchaser to the Custodian or the Trustee, as applicable, prior
to the Closing
Date of a copy of such Mortgage or assignment, as the case may
be, certified
(such certification to be an original thereof) by the public
recording office to
be a true and complete copy of the recorded original
thereof.
(c) The Depositor does hereby establish, pursuant to the
further
provisions of this Agreement and the laws of the State of New
York, an express
trust (the "Trust") to be known, for convenience, as "GSAMP
Trust 2005-HE2" and
Deutsche Bank National Trust Company is hereby appointed as
Trustee in
accordance with the provisions of this Agreement.
(d) The Trust shall have the capacity, power and authority, and
the
Trustee on behalf of the Trust is hereby authorized, to accept
the sale,
transfer, assignment, set over and conveyance by the Depositor
to the Trust of
all the right, title and interest of the Depositor in and to the
Trust Fund
(including, without limitation, the Mortgage Loans and the
Interest Rate Swap
Agreement) pursuant to Section 2.01(a). The parties hereby
acknowledge and agree
that the execution and delivery of the Interest Rate Swap
Agreement by the
Trustee on behalf of the Trust were authorized and are hereby
ratified and
confirmed.
Section 2.02 Acceptance by the Trustee of the Mortgage Loans.
The
Custodian and the Trustee, as applicable, acknowledge receipt of
the documents
identified in the Initial Certification in the form annexed
hereto as Exhibit E,
and the Trustee declares that the Custodian, on the Trustee's
behalf, holds and
will hold such documents and the other documents delivered to
them pursuant to
Section 2.01, and that the Trustee 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 Custodian and the
Trustee, as
applicable, acknowledge that they will maintain possession of
the related
Mortgage Notes in the States of Texas and California,
respectively, unless
otherwise permitted by the Rating Agencies.
Prior to and as a condition to the Closing, the Custodian and
the
Trustee shall each deliver via facsimile (with original to
follow the next
Business Day) to the Depositor and each 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. Neither the Custodian
nor the Trustee
shall be responsible to verify the validity, sufficiency or
genuineness of any
document in any Custodial File.
On the Closing Date, the Custodian and the Trustee shall
ascertain
that all documents required to be reviewed by them are in their
possession, and
shall deliver to the Depositor and the applicable Servicer an
Initial
Certification, in the form annexed hereto as Exhibit E, and
shall deliver to the
Depositor and the applicable Servicer Document Certification and
Exception
Report, in the form annexed hereto as Exhibit F, within 90 days
after the
Closing Date to the effect that, as to each Mortgage Loan listed
in the Mortgage
Loan Schedule (other than any Mortgage Loan paid in full or any
Mortgage Loan
specifically identified in such certification as an exception
and not covered by
such certification): (i) all documents required to be reviewed
by it are in its
possession; (ii) such documents have been reviewed by it and
appear regular on
their face and relate to such Mortgage Loan; (iii) based on its
examination and
only as to the foregoing documents, the information set forth in
items (1), (2)
and (13) of the Mortgage Loan Schedule and items (1), (2) and
(13) of the Data
Tape Information respecting such Mortgage Loan is correct; and
(iv) each
Mortgage Note has been endorsed as provided in Section 2.01 of
this Agreement.
Neither the Custodian nor the Trustee shall be responsible to
verify the
validity, sufficiency or genuineness of any document in any
Custodial File.
The Custodian and the Trustee, as applicable, shall retain
possession and custody of each Custodial File in accordance with
and subject to
the terms and conditions set forth herein. Each Servicer shall
promptly deliver
to the Custodian or the Trustee, as applicable, upon the
execution or receipt
thereof, the originals of such other documents or instruments
constituting the
Custodial File as come into the possession of such Servicer from
time to time.
The Depositor shall use reasonable efforts to cause the
Purchaser to
deliver to the applicable 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 Custodian or the Trustee, as
applicable,
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 Depositor shall use reasonable efforts to cause the
Purchaser to deliver, at
the Purchaser's expense, to the related Servicer and in no event
shall the
related Servicer be responsible for such expense.
Section 2.03 Representations, Warranties and Covenants of
Each
Servicer and the Custodian. (a) Countrywide hereby makes the
representations and
warranties set forth in Schedule II hereto to the Depositor, the
Custodian and
the Trustee as of the Closing Date. JPMorgan, hereby makes the
representations
and warranties set forth in Schedule III hereto to the Depositor
and the Trustee
as of the Closing Date. The Custodian hereby makes the
representations and
warranties set forth in Schedule IV hereto to the Depositor,
Countrywide and the
Trustee as of the Closing Date.
(b) It is understood and agreed by the Servicers and the
Custodian
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 Depositor, Trustee, or any Servicer of a
breach of any
of the foregoing representations and warranties, the party
discovering such
breach shall give prompt written notice to the other; provided
that a Servicer
need not give notice to the other Servicer.
(c) [Reserved]
(d) [Reserved]
(e) In connection with any repurchase or substitution of a
Mortgage
Loan pursuant to this Section 2.03, Section 2.07 or Section
2.08, the applicable
Servicer shall, based on information provided by the Purchaser,
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 applicable Servicer shall deliver
the amended
Mortgage Loan Schedule to the Custodian or the Trustee, as
applicable. Upon any
such repurchase or any substitution and the deposit to the
Collection Account of
any Substitution Adjustment Amount, the Custodian or the
Trustee, as applicable,
shall release the Mortgage File held for the benefit of the
Certificateholders
relating to such Deleted Mortgage Loan to the Purchaser, and
shall execute and
deliver at the direction of the Purchaser such instruments of
transfer or
assignment prepared by the Purchaser in each case without
recourse, as shall be
necessary to vest title in the Purchaser or its designee, the
Trustee's interest
in any Deleted Mortgage Loan substituted for pursuant to this
Section 2.03.
(f) [Reserved]
(g) For any month in which the Purchaser substitutes one or
more
Substitute Mortgage Loans for one or more Deleted Mortgage
Loans, the related
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 Depositor
shall use reasonable efforts to cause the Purchaser to remit to
the applicable
Servicer for deposit into the related Collection Account on or
before the next
Remittance Date any Substitution Adjustment Amount.
(h) In the event that a Mortgage Loan shall have been
repurchased
pursuant to the Representations and Warranties Agreement, the
Repurchase Price
thereof shall be deposited in the related Collection Account by
the applicable
Servicer 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 Custodian or the Trustee, as
applicable, shall
release the related Custodial File held for the benefit of
the
Certificateholders to such Person as directed by the applicable
Servicer, and
the Custodian or the Trustee, as applicable, 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 and satisfaction
of any related
indemnification obligations shall constitute the sole remedy
against such
Persons respecting such breach available to Certificateholders,
the Depositor,
the applicable Servicer, the Custodian 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 Custodian
or the Trustee, as the case may be, for the benefit of the
Certificateholders.
Section 2.04 [Reserved.]
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 March
2035, which is the Distribution Date in the month following the
month in which
the latest maturity date of any Mortgage Loan occurs. Amounts
distributable to
the Class X Certificates (prior to any reduction for any Basis
Risk Payment),
exclusive of any amounts received from the Swap Provider, 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 any Basis Risk
Payments to the
Principal Certificates.
For federal income tax purposes, any amount distributed on
the
Principal Certificates on any Distribution Date in excess of the
amount
distributable on their Corresponding Class of Upper-Tier Regular
Interest on
such Distribution Date shall be treated as having been paid from
the Excess
Reserve Fund Account or the Supplemental Interest Trust, as
applicable, and any
amount distributable on such Corresponding Class of Upper-Tier
Regular Interest
on such Distribution Date in excess of the amount distributable
on the
Corresponding Class of Principal Certificates on such
Distribution Date shall be
treated as having been paid to the Supplemental Interest Trust,
all pursuant to
and as further provided in Section 8.15.
Section 2.07 Representations and Warranties of the Depositor.
The
Depositor hereby represents, warrants and covenants to the
Trustee and each
Servicer that as of the date of this Agreement or as of such
date specifically
provided herein:
(a) The Depositor is a corporation duly organized, validly
existing
and in good standing under the laws of the State of
Delaware;
(b) The Depositor has the corporate power and authority to
convey
the Mortgage Loans and to execute, deliver and perform, and to
enter into and
consummate the transactions contemplated by, this Agreement;
(c) This Agreement has been duly and validly authorized,
executed
and delivered by the Depositor, all requisite corporate action
having been
taken, and, assuming the due authorization, execution and
delivery hereof by the
other parties hereto, constitutes or will constitute the legal,
valid and
binding agreement of the Depositor, enforceable against the
Depositor in
accordance with its terms, except as such enforcement may be
limited by
bankruptcy, insolvency, reorganization, moratorium or other
similar laws
relating to or affecting the rights of creditors generally, and
by general
equity principles (regardless of whether such enforcement is
considered in a
proceeding in equity or at law);
(d) No consent, approval, authorization or order of or
registration
or filing with, or notice to, any governmental authority or
court is required
for the execution, delivery and performance of or compliance by
the Depositor
with this Agreement or the consummation by the Depositor of any
of the
transactions contemplated hereby, except as have been made on or
prior to the
Closing Date;
(e) None of the execution and delivery of this Agreement,
the
consummation of the transactions contemplated hereby or thereby,
or the
fulfillment of or compliance with the terms and conditions of
this Agreement,
(i) conflicts or will conflict with or results or will result in
a breach of, or
constitutes or will constitute a default or results or will
result in an
acceleration under (A) the charter or bylaws of the Depositor,
or (B) of any
term, condition or provision of any material indenture, deed of
trust, contract
or other agreement or instrument to which the Depositor or any
of its
subsidiaries is a party or by which it or any of its
subsidiaries is bound; (ii)
results or will result in a violation of any law, rule,
regulation, order,
judgment or decree applicable to the Depositor of any court or
governmental
authority having jurisdiction over the Depositor or its
subsidiaries; or (iii)
results in the creation or imposition of any lien, charge or
encumbrance which
would have a material adverse effect upon the Mortgage Loans or
any documents or
instruments evidencing or securing the Mortgage Loans;
(f) There are no actions, suits or proceedings before or against
or
investigations of, the Depositor pending, or to the knowledge of
the Depositor,
threatened, before any court, administrative agency or other
tribunal, and no
notice of any such action, which, in the Depositor's reasonable
judgment, might
materially and adversely affect the performance by the Depositor
of its
obligations under this Agreement, or the validity or
enforceability of this
Agreement;
(g) The Depositor is not in default with respect to any order
or
decree of any court or any order, regulation or demand of any
federal, state,
municipal or governmental agency that may materially and
adversely affect its
performance hereunder; 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, and
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 Custodian or the Trustee, as
the case may be,
and shall inure to the benefit of the Trustee.
Section 2.08 Enforcement of Purchaser Obligations. Upon
discovery by
any of the parties hereto of a breach of a representation or
warranty made by
the Purchaser pursuant to the Representations and Warranties
Agreement, the
party discovering such breach shall give prompt written notice
thereof to the
other parties to this Agreement and the Purchaser. The Trustee
shall take such
action with respect to such breach under the Representations and
Warranties
Agreement, as applicable, as may be necessary or appropriate to
enforce the
rights of the Trust with respect thereto.
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicers to Service Mortgage Loans. (a) For and
on
behalf of the Certificateholders, each Servicer shall service
and administer the
Mortgage Loans serviced by it in accordance with the terms of
this Agreement and
the respective Mortgage Loans (provided, however that, prior to
the Servicing
Transfer Date with respect to any Acoustic Mortgage Loans or
First NLC Mortgage
Loans subject to an Interim Servicing Agreement, Acoustic or
First NLC,
respectively, will service such Acoustic Mortgage Loans or First
NLC Mortgage
Loans pursuant to the applicable Interim Servicing Agreement.
From and after the
Servicing Transfer Date with respect to the Acoustic Mortgage
Loans or such
First Mortgage Loans, Countrywide shall service such Mortgage
Loans pursuant to
this Agreement), 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 such Servicer, any Subservicer or
any
Affiliate of such Servicer or any Subservicer may have with the
related
Mortgagor;
(ii) the ownership or non-ownership of any Certificate by
such
Servicer or any Affiliate of such Servicer;
(iii) such Servicer's obligation to make P&I Advances or
Servicing
Advances; or
(iv) such 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, each Servicer
shall
seek to maximize the timely and complete recovery of principal
and interest on
the related Mortgage Notes. Subject only to the above-described
servicing
standards and the terms of this Agreement and of the respective
Mortgage Loans,
each 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
related Servicer in its own name or in the name of a Subservicer
is hereby
authorized and empowered by the Trustee when each Servicer
believes it
appropriate in its best judgment in accordance with Accepted
Servicing
Practices, to execute and deliver any and all instruments of
satisfaction or
cancellation, or of partial or full release or discharge, and
all other
comparable instruments, with respect to the related 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. Each Servicer shall
service and administer
the related 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. Each 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 Custodian
and the Trustee,
as applicable, shall execute, at the written request of the
applicable Servicer,
and furnish to the applicable Servicer and any Subservicer such
documents as are
necessary or appropriate to enable the applicable Servicer or
any Subservicer to
carry out their servicing and administrative duties hereunder,
and the Custodian
and the Trustee hereby grant to each 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 any power of
attorney furnished to it by the related Servicer in favor of
such Servicer for
the purposes described herein to the extent necessary or
desirable to enable
such Servicer to perform its duties hereunder. The Trustee shall
not be liable
for the actions of any 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, each 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 each 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,
no
Servicer may make any future advances with respect to a Mortgage
Loan (except as
provided in Section 4.01) and no Servicer shall (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
applicable
Servicer, reasonably foreseeable) or (ii) permit any
modification, waiver or
amendment of any term of any Mortgage Loan that would both (A)
effect an
exchange or reissuance of such Mortgage Loan under Section 1001
of the Code (or
final, temporary or proposed Treasury regulations promulgated
thereunder) and
(B) cause any Trust REMIC to fail to qualify as a REMIC under
the Code or the
imposition of any tax on "prohibited transactions" or
"contributions after the
start-up day" under the REMIC Provisions, or (iii) except as
provided in Section
3.07(a), waive any Prepayment Premiums.
(d) Each Servicer may delegate its responsibilities under
this
Agreement; provided, however, that no such delegation shall
release such
Servicer from the responsibilities or liabilities arising under
this Agreement.
Section 3.02 Subservicing Agreements between a Servicer and
Subservicers. (a) Each Servicer may enter into subservicing
agreements with
subservicers (each, a "Subservicer"), for the servicing and
administration of
the related 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.
Each 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. Each
Servicer and the
respective 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 such Servicer, are conclusively deemed to be
inconsistent with
this Agreement and therefore prohibited. Each Servicer shall
deliver to the
Trustee and the Depositor copies of all Subservicing Agreements,
and any
amendments or modifications thereof, promptly upon such
Servicer's execution and
delivery of such instruments.
(c) As part of its servicing activities hereunder, each
Servicer
(except as otherwise provided in the last sentence of this
paragraph), for the
benefit of the Trustee, shall enforce the obligations of each
Subservicer under
the related Subservicing Agreement to which such Servicer is a
party, including,
without limitation, any obligation to make advances in respect
of delinquent
payments as required by a Subservicing Agreement. Such
enforcement, including,
without limitation, the legal prosecution of claims, termination
of Subservicing
Agreements, and the pursuit of other appropriate remedies, shall
be in such form
and carried out to such an extent and at such time as such
Servicer, in its good
faith business judgment, would require were it the owner of the
related Mortgage
Loans. Each 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. Each Servicer shall be
entitled
to terminate any Subservicing Agreement to which such Servicer
is a party and
the rights and obligations of any Subservicer pursuant to any
Subservicing
Agreement in accordance with the terms and conditions of such
Subservicing
Agreement. In the event of termination of any Subservicer, all
servicing
obligations of such Subservicer shall be assumed simultaneously
by the Servicer
who is party to the related Subservicing Agreement without any
act or deed on
the part of such Subservicer or such Servicer, and such 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
applicable Servicer which is a party to the related Subservicing
Agreement
shall, for any reason, no longer be a Servicer (including
termination due to an
Event of Default).
Section 3.04 Liability of the Servicers. Notwithstanding any
Subservicing Agreement, any of the provisions of this Agreement
relating to
agreements or arrangements between a Servicer and a Subservicer
or reference to
actions taken through a Subservicer or otherwise, such 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
such Servicer alone were servicing and administering such
Mortgage Loans. Each
Servicer shall be entitled to enter into any agreement with a
Subservicer for
indemnification of such 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
related Servicer alone, and the Trustee (or any successor to
such 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. Each Servicer shall be solely liable for
all fees owed by
it to any Subservicer, irrespective of whether such 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 any Servicer at any time shall for any
reason no longer be
a 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
such Servicer under each Subservicing Agreement that such
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 such
Servicer's interest therein and to have replaced such Servicer
as a party to
each Subservicing Agreement to which the predecessor Servicer
was a party to the
same extent as if each Subservicing Agreement had been assigned
to the assuming
party, except that (i) such Servicer shall not thereby be
relieved of any
liability or obligations under any Subservicing Agreement that
arose before it
ceased to be a Servicer and (ii) none of the Depositor, the
Trustee, their
designees or any successor to such Servicer shall be deemed to
have assumed any
liability or obligation of such Servicer that arose before it
ceased to be a
Servicer.
Such Servicer at its expense shall, upon request of the
Trustee,
deliver to the assuming party all documents and records relating
to each
Subservicing Agreement to which it is a party and the Mortgage
Loans then being
serviced by it and an accounting of amounts collected and held
by or on behalf
of it, and otherwise use its best efforts to effect the orderly
and efficient
transfer of the Subservicing Agreements to the assuming
party.
Section 3.07 Collection of Certain Mortgage Loan Payments. (a)
Each
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, each 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, each 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 each 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
applicable Servicer,
such default is reasonably foreseeable, the applicable 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 a
Servicer's
approval of a modification of a Due Date shall not be considered
a modification
for purposes of this sentence; provided, further, that the final
maturity date
of any Mortgage Loan may not be extended beyond the Final
Scheduled Distribution
Date for the Offered Certificates. The applicable Servicer's
analysis supporting
any Forbearance and the conclusion that any Forbearance meets
the standards of
Section 3.01 shall be reflected in writing in the applicable
Servicing File or
on the applicable Servicer's servicing records. In addition,
notwithstanding the
foregoing, each Servicer may also waive (or permit a Subservicer
to waive), in
whole or in part, a Prepayment Premium if such waiver would, in
the applicable
Servicer's judgment, maximize recoveries 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
applicable 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 related Collection Account
together with and at
the time that the amount prepaid on the related Mortgage Loan is
required to be
deposited into the related Collection Account; provided,
however, that the
applicable Servicer shall not have an obligation to pay the
amount of any
uncollected Prepayment Premium if the failure to collect such
amount is the
direct result of inaccurate or incomplete information on the
Mortgage Loan
Schedule in effect at such time.
(b) Each 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
related Servicer. The
Subservicer shall deposit in the clearing account (which account
must be an
Eligible Account) in which it customarily deposits payments and
collections on
mortgage loans in connection with its mortgage loan servicing
activities on a
daily basis, and in no event more than one Business Day after
the Subservicer's
receipt thereof, all proceeds of Mortgage Loans received by the
Subservicer less
its servicing compensation to the extent permitted by the
Subservicing
Agreement, and shall thereafter deposit such amounts in the
Subservicing
Account, in no event more than two Business Days after the
deposit of such funds
into the clearing account. The Subservicer shall thereafter
deposit such
proceeds in the Collection Account of the related Servicer or
remit such
proceeds to the related Servicer for deposit in the Collection
Account of the
related Servicer not later than two Business Days after the
deposit of such
amounts in the Subservicing Account. For purposes of this
Agreement, such
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) Each Servicer shall ensure that each of the
Mortgage Loans
serviced by such Servicer shall be covered by a paid-in-full,
life-of-the-loan
tax service contract in effect with respect to each First Lien
Mortgage Loan
(each, a "Tax Service Contract") serviced by such Servicer. Each
Tax Service
Contract shall be assigned to the Trustee, or its designee, at
the applicable
Servicer's expense in the event that a 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 applicable Servicer undertakes to
perform such
functions with respect to the Mortgage Loans serviced by such
Servicer. To the
extent the related Mortgage Loan provides for Escrow Payments,
the applicable
Servicer shall establish and maintain, or cause to be
established and
maintained, one or more accounts (the "Escrow Accounts"), which
shall be
Eligible Accounts. Each 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
such 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
applicable Servicer (or a Subservicer to the extent provided in
the related
Subservicing Agreement) out of related collections for any
advances made
pursuant to Section 3.01 (with respect to taxes and assessments)
and Section
3.13 (with respect to hazard insurance); (iii) refund to
Mortgagors any sums as
may be determined to be overages; (iv) apply to the restoration
or repair of the
Mortgaged Property in accordance with the Section 3.13; (v)
transfer to the
Collection Account and application to reduce the principal
balance of the
Mortgage Loan in accordance with the terms of the related
Mortgage and Mortgage
Note; (vi) pay interest to the applicable 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
applicable Servicer's
obligations and responsibilities in respect of the related
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, each 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 applicable 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. Each 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 Accounts. (a) On behalf of the Trustee,
each
Servicer shall establish and maintain, or cause to be
established and
maintained, one or more segregated Eligible Accounts (each such
account or
accounts, a "Collection Account"), held in trust for the benefit
of the Trustee.
Funds in the Collection Account shall not be commingled with any
other funds of
the Servicers. On behalf of the Trustee, each 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 such Servicer's
receipt thereof, and
shall thereafter deposit in the related 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
all Liquidation Proceeds;
(iv) any amounts required to be deposited pursuant to Section
3.12
in connection with any losses realized on Permitted Investments
with
respect to funds held in the related Collection Account;
(v) any amounts required to be deposited by such 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 such Servicer.
The foregoing requirements for deposit in the Collection
Accounts
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 each Servicer in the related Collection
Account and shall,
upon collection, belong to the applicable Servicer as additional
compensation
for its servicing activities. In the event a Servicer shall
deposit in the
related Collection Account any amount not required to be
deposited therein, it
may at any time withdraw such amount from its Collection
Account, any provision
herein to the contrary notwithstanding.
(b) Funds in the Collection Accounts may be invested in
Permitted
Investments in accordance with the provisions set forth in
Section 3.12. Each
Servicer shall give notice to the Trustee and the Depositor of
the location of
the related Collection Account maintained by it when established
and prior to
any change thereof.
Section 3.11 Withdrawals from the Collection Accounts. (a)
Each
Servicer shall, from time to time, make withdrawals from the
related 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 (x) the
Custodian the Custodian Fee with respect to such Distribution
Date, and
(y) 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 such 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 such Servicer or any Subservicer (A) any unpaid
Servicing Fees or (B) any unreimbursed Servicing Advances with
respect to
each Mortgage Loan serviced by such Servicer, but only to the
extent of
any Late Collections, Liquidation Proceeds, Condemnation
Proceeds,
Insurance Proceeds or other amounts as may be collected by such
Servicer
from a Mortgagor, or otherwise received with respect to such
Mortgage Loan
(or the related REO Property);
(iv) to pay to such Servicer as servicing compensation (in
addition
to the Servicing Fee) on the Remittance Date any interest or
investment
income earned on funds deposited in its Collection Account;
(v) to pay the Purchaser or the Depositor, as applicable,
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 such Servicer for (A) any P&I Advance or
Servicing
Advance previously made which such 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 such Servicer for advances in
respect
of, expenses incurred in connection with any Mortgage Loan
serviced by
such Servicer pursuant to Section 3.15;
(viii) to reimburse such Servicer, the Depositor or the Trustee
for
expenses incurred by or reimbursable to such 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 such 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 related
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 related 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
such
Collection Account, to reimburse such 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 related Collection Account
upon
termination of this Agreement.
To the extent that a Servicer does not timely make the
remittance
referred to in clause (i) above, such 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) Each Servicer shall keep and maintain separate accounting,
on a
Mortgage Loan by Mortgage Loan basis, for the purpose of
justifying any
withdrawal from its 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. Each Servicer shall provide written notification to
the Depositor,
on or prior to the next succeeding Remittance Date, upon making
any withdrawals
from the related Collection Account pursuant to subclause
(a)(vi) above.
Section 3.12 Investment of Funds in the Collection Accounts and
the
Distribution Account (a) Each Servicer may invest the funds in
the related
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 Accounts
and the Distribution Accounts are referred to as an "Investment
Account"), in
one or more Permitted Investments bearing interest or sold at a
discount, and
maturing, unless payable on demand, no later than the Business
Day on which such
funds are required to be withdrawn from such account pursuant to
this Agreement
(except for investments made at the Depositor's direction, which
shall mature no
later than the Business Day immediately preceding the date of
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 related Collection Account and Escrow Account
held by or on
behalf of the related Servicer, shall be for the benefit of such
Servicer and
shall be subject to its withdrawal in the manner set forth in
Section 3.11. Any
other benefit derived from the related 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 related Servicer, except that
no Servicer
shall realize any economic benefit from any forced charging of
services except
as permitted by applicable law. Such Servicer shall deposit in
the related
Collection Account and Escrow Account the amount of any loss of
principal
incurred in respect of any such Permitted Investment made with
funds in such
accounts immediately upon realization of such loss.
(c) All income and gain realized from the investment of
funds
deposited in the Distribution Account held by the Trustee, shall
be for the
benefit of the Depositor (except for any income or gain realized
from the
investment of funds on deposit in the Distribution Account
during the Trustee
Float Period, which shall be for the benefit of the Trustee).
The Depositor
shall deposit in the Distribution Account (except with respect
to the Trustee
Float Period, in which case the Trustee shall 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) Each Servicer shall cause to be
maintained for each
Mortgage Loan serviced by such Servicer 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. Each
Servicer shall also cause to be maintained fire insurance with
extended coverage
on each REO Property serviced by such Servicer 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. Each
Servicer will comply in the performance of this Agreement with
all reasonable
rules and requirements of each insurer under any such hazard
policies. Any
amounts to be collected by any Servicer under any such policies
(other than
amounts to be applied to the restoration or repair of the
property subject to
the related Mortgage or amounts to be released to the Mortgagor
in accordance
with the procedures that such 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 related 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 such
Servicer's written
notification, the applicable Servicer shall put in place such
hazard insurance
coverage on the Mortgagor's behalf. Any out-of-pocket expense or
advance made by
a Servicer on such force placed hazard insurance coverage shall
be deemed a
Servicing Advance. Any cost incurred by any Servicer in
maintaining any such
insurance shall not, for the purpose of calculating
distributions to the
Trustee, be added to the unpaid principal balance of the related
Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit.
It is understood
and agreed that no earthquake or other additional insurance is
to be required of
any Mortgagor other than pursuant to such applicable laws and
regulations as
shall at any time be in force and as shall require such
additional insurance. If
the Mortgaged Property or REO Property is at any time in an area
identified in
the Federal Register by the Federal Emergency Management Agency
as having
special flood hazards and flood insurance has been made
available, the
applicable 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,
any 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 applicable 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 applicable Servicer shall immediately force
place the required
flood insurance on the Mortgagor's behalf. Any out-of-pocket
expense or advance
made by the applicable Servicer on such force placed flood
insurance coverage
shall be deemed a Servicing Advance.
In the event that any Servicer shall obtain and maintain a
blanket
policy with an insurer either (i) acceptable to Fannie Mae or
Freddie Mac, or
(ii) having a General Policy Rating of A:12 or better in Best's
(or such other
rating that is comparable to such rating) insuring against
hazard losses on all
of the Mortgage Loans, it shall conclusively be deemed to have
satisfied its
obligations as set forth in the first two sentences of this
Section 3.13, it
being understood and agreed that such policy may contain a
deductible clause, in
which case such 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
related 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, each
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) Each 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 such 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 such Servicer has obtained a waiver of
such requirements
from Fannie Mae or Freddie Mac. Each Servicer shall also
maintain a fidelity
bond in the form and amount that would meet the requirements of
Fannie Mae or
Freddie Mac, unless such Servicer has obtained a waiver of such
requirements
from Fannie Mae or Freddie Mac. Each Servicer shall provide the
Trustee upon
request with copies of any such insurance policies and fidelity
bond. Each
Servicer shall be deemed to have complied with this provision if
an Affiliate of
the applicable 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 such 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. Each 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. Each 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 no
Servicer shall be required to take such action if, in its sole
business
judgment, a 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 a
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, such Servicer will enter into
an assumption and
modification agreement from or with the person to whom such
property has been
conveyed or is proposed to be conveyed, pursuant to which such
person becomes
liable under the Mortgage Note, and, to the extent permitted by
applicable state
law, the Mortgagor remains liable thereon. Each 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 such 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,
such 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. No
Servicer shall 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 a Servicer in respect of an assumption or
substitution of
liability agreement will be retained by such 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. Each Servicer
shall notify the
Custodian and the Trustee, as applicable, that any such
substitution,
modification or assumption agreement has been completed by
forwarding to the
Custodian and the Trustee, as applicable, 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, a 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 such 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. Each
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. Each 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; provided,
however with respect to any Second Lien Mortgage Loan for which
the related
First Lien Mortgage Loan is not included in the Trust Fund, if,
after such
Mortgage Loan becomes 180 days or more delinquent, the related
Servicer
determines that a significant net recovery is not possible
through foreclosure,
such Mortgage Loan may be charged off and the Mortgage Loan will
be treated as a
Liquidated Mortgage Loan giving rise to a Realized Loss. 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 related
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 such Servicer through Insurance
Proceeds,
Condemnation Proceeds or Liquidation Proceeds from the related
Mortgaged
Property, as contemplated in Section 3.11. Each 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.
In the event that the related First Lien Mortgage Loan is not
being
serviced by a Servicer, such Servicer shall have no liability
for any losses
resulting from a foreclosure on a Second Lien Mortgage Loan in
connection with
the foreclosure on the related First Lien Mortgage Loan for
which the related
First Lien Mortgage Loan is not included in the Trust Fund where
the applicable
Servicer did not receive notice or otherwise had no actual
knowledge regarding
such foreclosure on the related First Lien Mortgage Loan;
provided, however, if
the applicable Servicer is either notified or has actual
knowledge that any
holder of a First Lien Mortgage Loan intends to accelerate the
obligations
secured by the First Lien Mortgage Loan, or that any such holder
intends to
declare a default under the mortgage or promissory note secured
thereby, or has
filed or intends to file an election to have the related
Mortgaged Property sold
or foreclosed, the applicable Servicer shall take, on behalf of
the Trust,
whatever actions are necessary to protect the interests of the
Trust in
accordance with Accepted Servicing Practices and the REMIC
Provisions. The
applicable Servicer shall not be required to make a Servicing
Advance pursuant
to Section 4.01 with respect thereto except to the extent that
it determines in
its reasonable good faith judgment that such advance would be
recoverable from
Liquidation Proceeds on the related Second Lien Mortgage Loan
and in no event in
an amount that is greater than the then outstanding principal
balance of the
related Second Lien Mortgage Loan. The Servicer shall thereafter
take such
action as is reasonably necessary to recover any amount so
advanced and to
otherwise reimburse itself as a Servicing Advance from the
Collection Account
pursuant to 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 applicable Servicer or any Subservicer for any
related
unreimbursed Servicing Advances, pursuant to Section 3.11 or
3.17; second, to
reimburse any 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 applicable 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 applicable 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 a 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, such
Servicer shall
cause an environmental inspection or review of such Mortgaged
Property to be
conducted by a qualified inspector. Upon completion of the
inspection, such
Servicer shall promptly provide the Trustee and the Depositor,
with a written
report of the environmental inspection.
After reviewing the environmental inspection report, the
applicable
Servicer shall determine consistent with Accepted Servicing
Practices how 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 applicable
Servicer determines, consistent with Accepted Servicing
Practices, to proceed
with foreclosure or acceptance of a deed in lieu of foreclosure,
such 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 such
Servicer, such
Servicer shall be entitled to be reimbursed from amounts in the
Collection
Account pursuant to Section 3.11. In the event the applicable
Servicer
determines not to proceed with foreclosure or acceptance of a
deed in lieu of
foreclosure, such 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 applicable
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 a Servicer of a
notification that
payment in full shall be escrowed in a manner customary for such
purposes, such
Servicer will, within five (5) Business Days of the payment in
full, notify the
Custodian or the Trustee, as applicable, 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 related 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 to the
Custodian or the
Trustee, as applicable. Upon receipt of such certification and
Request for
Release, the Custodian or the Trustee, as applicable, shall
promptly release the
related Custodial File to such 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 related 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
Custodian or the
Trustee, as applicable, shall, upon request of such Servicer and
delivery to the
Custodian or the Trustee, as applicable, of a Request for
Release, release the
related Custodial File to such Servicer, and the Custodian or
the Trustee, as
applicable, shall, at the direction of such 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 applicable
Servicer to
return each and every document previously requested from the
Custodial File to
the Custodian or the Trustee, as applicable, when the need
therefor by such
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
related 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 such Servicer has delivered to the Custodian
or the Trustee,
as applicable, 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 Custodian
or the Trustee, as applicable, to the applicable Servicer or its
designee. Upon
receipt of a Request for Release under this Section 3.16, the
Custodian or the
Trustee, as applicable, shall deliver the related Custodial File
to the
requesting Servicer by regular mail, unless such Servicer
requests that the
Custodian or the Trustee, as applicable, deliver such Custodial
File to such
Servicer by overnight courier (in which case such delivery shall
be at the
applicable Servicer's expense); provided, however, that in the
event such
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
efforts to
cause the Purchaser to reimburse such Servicer for any overnight
courier charges
incurred for the requested Custodial Files.
Upon written certification of a Servicing Officer, the Trustee
shall
execute and deliver to any Servicer copies of any court
pleadings, requests for
trustee's sale or other documents reasonably necessary to the
foreclosure or
trustee's sale in respect of a Mortgaged Property or to any
legal action brought
to obtain judgment against any Mortgagor on the Mortgage Note or
Mortgage or to
obtain a deficiency judgment, or to enforce any other remedies
or rights
provided by the Mortgage Note or Mortgage or otherwise available
at law or in
equity, or shall exercise and deliver to such Servicer a power
of attorney
sufficient to authorize such 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
applicable Servicer shall cause the deed or certificate of sale
to be issued in
the name of the Trustee, on behalf of the Certificateholders, or
the Trustee's
nominee.
(b) Each Servicer shall manage, conserve, protect and operate
each
REO Property for the Trustee solely for the purpose of its
prompt disposition
and sale. Each Servicer, either itself or through an agent
selected by such
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. Each 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
such Servicer deems to be in the best interest of the
Trustee.
(c) Each Servicer shall use Accepted Servicing Practices, to
dispose
of the REO Property as soon as possible and shall sell such REO
Property in any
event within three years after title has been taken to such REO
Property, unless
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, so long as such extended period is within the time
period
specified in Section 3.17(h). Subject to Section 3.17(h), if a
period longer
than three years is permitted under the foregoing sentence and
is necessary to
sell any REO Property, the applicable Servicer shall report
monthly to the
Trustee as to the progress being made in selling such REO
Property. The Trustee
has no obligation with respect to REO Dispositions.
(d) Each 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
related Collection Account.
(e) Each 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) Each 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 applicable Servicer as additional servicing
compensation.
(h) Each 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) such 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 pursuant to the
requirements of Section
3.17(c), or (ii) such Servicer obtains for the Trustee an
Opinion of Counsel,
addressed to the Depositor, the Trustee and such Servicer, to
the effect that
the holding by the Pooling-Tier REMIC-1 of such REO Property
subsequent to such
period will not result in the imposition of taxes on "prohibited
transactions"
as defined in Section 860F of the Code or cause any Trust REMIC
to fail to
qualify as a REMIC under the REMIC Provisions or comparable
provisions of
relevant state laws at any time. Each Servicer shall manage,
conserve, protect
and operate each REO Property serviced by such Servicer for the
Trustee solely
for the purpose of its prompt disposition and sale in a manner
which does not
cause such REO Property to fail to qualify as "foreclosure
property" within the
meaning of Section 860G(a)(8) or result in the receipt by the
Pooling-Tier
REMIC-1 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 applicable Servicer shall
either itself
or through an agent selected by such 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 such 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
Adjustable Rate Mortgage Loan, the applicable 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 applicable Servicer shall select a comparable
alternative index
over which it has no direct control and which is readily
verifiable. Each
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.
Each 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 a Servicer or the receipt of notice from the Trustee that a
Servicer has
failed to adjust a Mortgage Interest Rate or Scheduled Payment
in accordance
with the terms of the related Mortgage Note, such Servicer shall
deposit in the
related 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 applicable Servicer shall
provide, or cause the
applicable 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. With respect to JPMorgan and
Countrywide,
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
JPMorgan and
Countrywide. Nothing in this Section shall derogate from the
obligation of any
such party to observe any applicable law prohibiting disclosure
of information
regarding the Mortgagors and the failure of any such party to
provide access as
provided in this Section as a result of such obligation shall
not constitute a
breach of this Section.
Nothing in this Section 3.19 shall require a Servicer to
collect,
create, collate or otherwise generate any information that it
does not generate
in its usual course of business. The Servicers 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
Servicers to Be Held for the Trustee Each Servicer shall account
fully to the
Trustee for any funds received by such Servicer or which
otherwise are collected
by such Servicer as Liquidation Proceeds, Condemnation Proceeds
or Insurance
Proceeds in respect of any Mortgage Loan serviced by such
Servicer. All Mortgage
Files and funds collected or held by, or under the control of, a
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
such 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.
Each Servicer also agrees that it shall not create, incur or
subject any
Mortgage File or any funds that are deposited in any 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 such
Servicer shall
be entitled to set off against and deduct from any such funds
any amounts that
are properly due and payable to such Servicer under this
Agreement.
Section 3.21 Servicing Compensation. (a) As compensation for
its
activities hereunder, each Servicer shall, with respect to each
Mortgage Loan,
be entitled to retain from deposits to its 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, each
Servicer shall be entitled to recover unpaid Servicing Fees out
of related Late
Collections and as otherwise 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
applicable
Servicer's responsibilities and obligations under this
Agreement; provided,
however, that each 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 a
Servicer only to the extent such fees or charges are received by
such Servicer.
Each Servicer shall also be entitled pursuant to Section
3.09(b)(vi) and Section
3.11(a)(iv) to withdraw from the related Collection Account, as
additional
servicing compensation, interest or other income earned on
deposits therein.
(c) Each 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 such 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. Each 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 such 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, such 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 applicable Servicer as to
the nature of any
defaults by such Servicer in the fulfillment of any of such
Servicer's
obligations. The obligations of a Servicer under this Section
apply to each
Servicer that serviced during the applicable period, whether or
not such
Servicer is acting as a 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, each 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 such Servicer which includes an assertion that
such 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 applicable Servicer as to
the nature of any
defaults by such Servicer in the fulfillment of any of such
Servicer's
obligations. The obligations of a Servicer under this Section
apply to each
Servicer that serviced during the applicable period, whether or
not such
Servicer is acting as a Servicer at the time such report is
required to be
delivered.
Section 3.24 Trustee to Act as Servicer. (a) In the event that
any
Servicer shall for any reason no longer be a 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 such Servicer
hereunder arising
thereafter (except that the Trustee shall not be (i) liable for
losses of such
predecessor Servicer pursuant to Section 3.10 or any acts or
omissions of such
predecessor Servicer hereunder, (ii) obligated to make Advances
if it is
prohibited from doing so by applicable law, (iii) obligated to
effectuate
repurchases or substitutions of Mortgage Loans hereunder,
including but not
limited to repurchases or substitutions pursuant to Section
2.03, (iv)
responsible for expenses of such Servicer pursuant to Section
2.03 or (v) deemed
to have made any representations and warranties of such Servicer
hereunder). Any
such assumption shall be subject to Section 7.02.
(b) Every Subservicing Agreement entered into by a 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 any Servicer shall for any reason no longer be a
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
such 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 such Servicer thereunder; and such 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 applicable 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) to
which it is a party
and the Mortgage Loans then being serviced thereunder and an
accounting of
amounts collected and held by it and otherwise use its best
efforts to effect
the orderly and efficient transfer of such Subservicing
Agreement to the
assuming party.
Section 3.25 Compensating Interest. Each Servicer shall remit to
the
Trustee on each Remittance Date an amount from its own funds
equal to
Compensating Interest payable by such Servicer for such
Remittance Date;
provided, however, the Servicers are not required to pay
Compensating Interest
on any Acoustic Mortgage Loan or First NLC Mortgage Loan subject
to an Interim
Servicing Agreement for the period prior to the applicable
Servicing Transfer
Date.
Section 3.26 Credit Reporting; Gramm-Leach-Bliley Act. (a)
With
respect to each Mortgage Loan, each 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 Equifax, Experian and TranUnion Credit
Information
Company (three of the national credit repositories), on a
monthly basis.
(b) The Servicer shall comply with all provisions of the
Privacy
Laws relating to the Mortgage Loans, the related borrowers and
any "nonpublic
personal information" (as defined in the Privacy Laws) received
by the Servicer
incidental to the performance of its obligations under this
Agreement,
including, maintaining adequate information security procedures
to protect such
nonpublic personal information and providing all privacy notices
required by the
Privacy Laws.
Section 3.27 Excess Reserve Fund Account; Distribution Account.
(a)
The Trustee shall establish and maintain the Excess Reserve Fund
Account, on
behalf of the Class X Certificateholders, to receive that
portion of the
distributions on the Class X Interest up to an amount equal to
any Basis Risk
Payments and to pay to the Principal Certificateholders any
Basis Risk Carry
Forward Amounts (prior to using any Net Swap Receipts). For the
avoidance of
doubt, any Basis Risk Carry Forward Amounts shall be paid to the
Principal
Certificates first from the Excess Reserve Fund Account and then
from the
Supplemental Interest Trust.
On each Distribution Date on which there exists a Basis Risk
Carry
Forward Amount on any Class of Principal Certificates, the
Trustee shall (1)
withdraw from the Distribution Account and deposit in the Excess
Reserve Fund
Account, as set forth in Section 4.02(a)(iii)(H), the lesser of
the Class X
Distributable Amount (to the extent remaining after the
distributions specified
in Sections 4.02(a)(iii)(A)-(G) and without regard to the
reduction in clause
(iii) of the definition thereof) and the aggregate Basis Risk
Carry Forward
Amount and (2) withdraw from the Excess Reserve Fund Account
amounts necessary
to pay to such Class or Classes of Principal Certificates the
applicable Basis
Risk Carry Forward Amounts. Such payments, along with payments
from the
Supplemental Interest Trust, shall be allocated to those Classes
based upon the
amount of Basis Risk Carry Forward Amount owed to each such
Class and shall be
paid in the priority set forth in Section 4.02(a)(iii)(I). In
the event that the
Class Certificate Balance of any Class of Certificates is
reduced because of
Applied Realized Loss Amounts, the applicable Certificateholders
will not be
entitled to receive Basis Risk Carry Forward Amounts on the
written down amounts
on such Distribution Date or any future Distribution Dates
(except to the extent
such Class Certificate Balance is increased as a result of any
Subsequent
Recoveries), even if funds are otherwise available for
distribution.
The Trustee shall account for the Excess Reserve Fund Account as
an
asset of a grantor trust under subpart E, Part I of subchapter J
of the Code and
not as an asset of any Trust REMIC created pursuant to this
Agreement. The
beneficial owners of the Excess Reserve Fund Account are the
Class X
Certificateholders.
Any Basis Risk Carry Forward Amounts distributed by the Trustee
to
the Principal Certificateholders from the Excess Reserve Fund
Account shall be
accounted for by the Trustee, for federal income tax purposes,
as amounts paid
first to the Holders of the Class X Certificates (in respect of
the Class X
Interest) and then to the respective Class or Classes of
Principal Certificates.
In addition, the Trustee shall account for the rights of Holders
of each Class
of Principal Certificates to receive payments of Basis Risk
Carry Forward
Amounts from the Excess Reserve Fund Account (along with
payments of Basis Risk
Carry Forward Amounts and Upper-Tier Carry Forward Amounts from
the Supplemental
Interest Trust) as rights in a separate limited recourse
interest rate cap
contract written by the Class X Certificateholders in favor of
Holders of each
such Class.
Notwithstanding any provision contained in this Agreement,
the
Trustee shall not be required to make any payments from the
Excess Reserve Fund
Account except as expressly set forth in this Section
3.27(a).
(b) The Trustee shall establish and maintain the
Distribution
Account on behalf of the Certificateholders. The Trustee shall,
promptly upon
receipt on the Business Day received, deposit in the
Distribution Account and
retain therein the following:
(i) the aggregate amount remitted by the Servicer to the
Trustee
pursuant to Section 3.11;
(ii) any amount deposited by the Servicer pursuant to
Section
3.12(b) in connection with any losses on Permitted
Investments;
(iii) any amounts remitted by the Servicer to the Trustee in
respect
of Compensating Interest pursuant to Section 3.25; and
(iv) any other amounts deposited hereunder which are required to
be
deposited in the Distribution Account.
In the event that the Servicer shall remit any amount not
required
to be remitted, the Servicer may at any time direct the Trustee
in writing to
withdraw such amount from the Distribution Account, any
provision herein to the
contrary notwithstanding. Such direction may be accomplished by
delivering
notice to the Trustee, which describes the amounts deposited in
error in the
Distribution Account. All funds deposited in the Distribution
Account shall be
held by the Trustee in trust for the Certificateholders until
disbursed in
accordance with this Agreement or withdrawn in accordance with
Section 4.02.
(c) In order to comply with its duties under the USA Patriot Act
of
2001, the Trustee shall obtain and verify certain information
and documentation
from the other parties to this Agreement including, but not
limited to, each
such party's name, address, and other identifying
information.
Section 3.28 Optional Purchase of Delinquent Mortgage Loans.
The
Depositor, in its sole discretion, shall have the option, but
shall not be
obligated, to purchase any 90+ Delinquent Mortgage Loans from
the Trust Fund.
The purchase price for any such Mortgage Loan shall be 100% of
the unpaid
principal balance of such Mortgage Loan plus accrued and unpaid
interest on the
related Mortgage Loan at the applicable Mortgage Interest Rate,
plus the amount
of any unreimbursed Servicing Advances made by the applicable
Servicer. Upon
receipt of such purchase price, the applicable Servicer shall
provide to the
Trustee a Request for Release and the Trustee shall promptly
release to the
Depositor, the Mortgage File relating to the Mortgage Loan being
repurchased.
Section 3.29 Transfer of Servicing for Certain Acoustic
Mortgage
Loans and Certain First NLC Mortgage Loans. Prior to the
Servicing Transfer
Date, the Depositor shall use reasonable efforts to cause
Acoustic and First NLC
to comply with each of the servicing transfer requirements set
forth in the
applicable Interim Servicing Agreement and in accordance with
customary industry
procedures.
ARTICLE IV
DISTRIBUTIONS AND
ADVANCES BY THE SERVICERS
Section 4.01 Advances. (a) The amount of P&I Advances to be
made by
each Servicer for any Remittance Date shall equal, subject to
Section 4.01(c),
the sum of (i) the aggregate amount of Scheduled Payments (with
each interest
portion thereof net of the related Servicing Fee), due during
the Due Period
immediately preceding such Remittance Date in respect of the
Mortgage Loans
serviced by such Servicer, which Scheduled Payments were not
received as of the
close of business on the related Determination Date, plus (ii)
with respect to
each REO Property, which REO Property was acquired during or
prior to the
related Prepayment Period and as to which such REO Property an
REO Disposition
did not occur during the related Prepayment Period, an amount
equal to the
excess, if any, of the Scheduled Payments (with REO Imputed
Interest) that would
have been due on the related Due Date in respect of the related
Mortgage Loan,
over the net income from such REO Property transferred to the
related Collection
Account for distribution on such Remittance Date.
(b) On each Remittance Date, each Servicer shall remit in
immediately available funds to the Trustee an amount equal to
the aggregate
amount of P&I Advances, if any, to be made in respect of the
Mortgage Loans and
REO Properties serviced by such Servicer for the related
Remittance Date either
(i) from its own funds or (ii) from the related Collection
Account, to the
extent of funds held therein for future distribution (in which
case, it will
cause to be made an appropriate entry in the records of the
related Collection
Account that Amounts Held for Future Distribution have been, as
permitted by
this Section 4.01, used by such Servicer in discharge of any
such P&I Advance)
or (iii) in the form of any combination of (i) and (ii)
aggregating the total
amount of P&I Advances to be made by such Servicer with
respect to the Mortgage
Loans and REO Properties. Any Amounts Held for Future
Distribution and so used
shall be appropriately reflected in such Servicer's records and
replaced by such
Servicer by deposit in the related Collection Account on or
before any future
Remittance Date to the extent required.
(c) The obligation of each Servicer to make such P&I
Advances is
mandatory, notwithstanding any other provision of this Agreement
but subject to
(d) below, and, with respect to any Mortgage Loan or REO
Property, shall
continue until a Final Recovery Determination in connection
therewith or the
removal thereof from coverage under this Agreement, except as
otherwise provided
in this Section.
(d) Notwithstanding anything herein to the contrary, no P&I
Advance
or Servicing Advance shall be required to be made hereunder by
either Servicer
if such P&I Advance or Servicing Advance would, if made,
constitute a
Nonrecoverable P&I Advance or Nonrecoverable Servicing
Advance. The
determination by either Servicer that it has made a
Nonrecoverable P&I Advance
or a Nonrecoverable Servicing Advance or that any proposed
P&I Advance or
Servicing Advance, if made, would constitute a Nonrecoverable
P&I Advance or a
Nonrecoverable Servicing Advance, respectively, shall be
evidenced by an
Officer's Certificate of such Servicer delivered to the Trustee.
In addition no
Servicer shall be required to advance any Relief Act Interest
Shortfalls.
(e) Except as otherwise provided herein, the applicable
Servicer
shall be entitled to reimbursement pursuant to Section 3.11 for
Advances from
recoveries from the related Mortgagor or from all Liquidation
Proceeds and other
payments or recoveries (including Insurance Proceeds and
Condemnation Proceeds)
with respect to the related Mortgage Loan.
Section 4.02 Priorities of Distribution. (a) On each
Distribution
Date, the Trustee shall make the disbursements and transfers
from amounts then
on deposit in the Distribution Account in the following order of
priority and to
the extent of the Available Funds remaining:
(i) from the Interest Remittance Amount, to the Supplemental
Interest Trust and to the holders of each Class of Principal
Certificates
in the following order of priority:
(A) from the Interest Remittance Amount to the Supplemental
Interest Trust, the sum of (x) all Net Swap Payments and (y)
any
Swap Termination Payment owed to the Swap Provider other than
a
Defaulted Swap Termination Payment;
(B) from any remaining Interest Remittance Amount,
concurrently to the Class A-1, Class A-2 and Class A-3
Certificates,
the related Accrued Certificate Interest Distribution Amounts
and
Unpaid Interest Amounts for the Class A-1, Class A-2 and Class
A-3
Certificates), allocated pro rata (based on their respective
entitlements to those amounts);
(C) from any remaining Interest Remittance Amount, to the
Class M-1 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(D) from any remaining Interest Remittance Amount, to the
Class M-2 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(E) from any remaining Interest Remittance Amount, to the
Class M-3 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(F) from any remaining Interest Remittance Amount, to the
Class B-1 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(G) from any remaining Interest Remittance Amount, to the
Class B-2 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(H) from any remaining Interest Remittance Amount, to the
Class B-3 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class; and
(I) from any remaining Interest Remittance Amount, to the
Class B-4 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(ii) (A) on each Distribution Date (a) prior to the Stepdown
Date or
(b) with respect to which a Trigger Event is in effect, to the
holders of
the Class or Classes of Offered Certificates then entitled
to
distributions of principal as set forth below, from Available
Funds
remaining after making distributions pursuant to clause (i)
above, an
amount equal to the Principal Distribution Amount in the
following order
of priority:
(a) sequentially:
(x) concurrently to the Class R-1 and Class R-2
Certificates, allocated pro rata, until their respective
Class
Certificate Balances have been reduced to zero; and
(y) sequentially, to the Class A-1, Class A-2 and Class
A-3 Certificates, in that order, until their respective
Class
Certificate Balances are reduced to zero;
(b) sequentially, to the Class M-1, Class M-2, Class M-3,
Class B-1, Class B-2, Class B-3 and Class B-4 Certificates, in
that
order, until their respective Class Certificate Balances are
reduced
to zero;
(B) on each Distribution Date (a) on and after the Stepdown
Date and (b) as long as Trigger Event is not in effect, to
the
holders of the Class or Classes of Offered Certificates then
entitled to distribution of principal, from Available Funds
remaining on deposit in the Distribution Account after
making
distributions pursuant to clause (i) above, an amount equal to
the
Principal Distribution Amount in the following amounts and order
of
priority:
(a) the lesser of (x) the Principal Distribution Amount and
(y) the Class A Principal Distribution Amount to the Class A
Certificates, allocated sequentially to the Class A-1, Class A-2
and
Class A-3 Certificates, in that order, until their respective
Class
Certificate Balances are reduced to zero;
(b) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the
Class A
Certificates in clause (ii)(B)(a) above and (y) the Class
M-1
Principal Distribution Amount to the Class M-1 Certificates,
until
the Class Certificate Balance thereof has been reduced to
zero;
(c) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the
Class A
Certificates in clause (ii)(B)(a) above and to the Class M-1
Certificates in clause (ii)(B)(b) above, and (y) the Class
M-2
Principal Distribution Amount to the Class M-2 Certificates,
until
the Class Certificate Balance thereof has been reduced to
zero;
(d) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the
Class A
Certificates in clause (ii)(B)(a) above, to the Class M-1
Certificates in clause (ii)(B)(b) above and to the Class M-2
Certificates in clause (ii)(B)(c) above, and (y) the Class
M-3
Principal Distribution Amount to the Class M-3 Certificates,
until
the Class Certificate Balance thereof has been reduced to
zero;
(e) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the
Class A
Certificates in clause (ii)(B)(a) above, to the Class M-1
Certificates in clause (ii)(B)(b) above, to the Class M-2
Certificates in clause (ii)(B)(c) above and to the Class M-3
Certificates in clause (ii)(B)(d) above, and (y) the Class
B-1
Principal Distribution Amount to the Class B-1 Certificates,
until
the Class Certificate Balance thereof has been reduced to
zero;
(f) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the
Class A
Certificates in clause (ii)(B)(a) above, to the Class M-1
Certificates in clause (ii)(B)(b) above, to the Class M-2
Certificates in clause (ii)(B)(c) above, to the Class M-3
Certificates in clause (ii)(B)(d) above and to the Class B-1
Certificates in clause (ii)(B)(e) above, and (y) the Class
B-2
Principal Distribution Amount to the Class B-2 Certificates,
until
the Class Certificate Balance thereof has been reduced to
zero;
(g) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the
Class A
Certificates in clause (ii)(B)(a) above, to the Class M-1
Certificates in clause (ii)(B)(b) above, to the Class M-2
Certificates in clause (ii)(B)(c) above, to the Class M-3
Certificates in clause (ii)(B)(d) above, to the Class B-1
Certificates in clause (ii)(B)(e) above and to the Class B-2
Certificates in clause (ii)(B)(f) above, and (y) the Class
B-3
Principal Distribution Amount to the Class B-3 Certificates,
until
the Class Certificate Balance thereof has been reduced to zero;
and
(h) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the
Class A
Certificates in clause (ii)(B)(a) above, to the Class M-1
Certificates in clause (ii)(B)(b) above, to the Class M-2
Certificates in clause (ii)(B)(c) above, to the Class M-3
Certificates in clause (ii)(B)(d) above, to the Class B-1
Certificates in clause (ii)(B)(e) above, to the Class B-2
Certificates in clause (ii)(B)(f) above and to the Class B-3
Certificates in clause (ii)(B)(g) above, and (y) the Class
B-4
Principal Distribution Amount to the Class B-4 Certificates,
until
the Class Certificate Balance thereof has been reduced to
zero;
(iii) any amount remaining after the distributions in
clauses
4.02(a)(i) and (ii) above shall be distributed in the following
order of
priority:
(A) to the holders of the Class M-1 Certificates, any Unpaid
Interest Amount for such Class;
(B) to the holders of the Class M-2 Certificates, any Unpaid
Interest Amount for such Class;
(C) to the holders of the Class M-3 Certificates, any Unpaid
Interest Amount for such Class;
(D) to the holders of the Class B-1 Certificates, any Unpaid
Interest Amount for such Class;
(E) to the holders of the Class B-2 Certificates, any Unpaid
Interest Amount for such Class;
(F) to the holders of the Class B-3 Certificates, any Unpaid
Interest Amount for such Class;
(G) to the holders of the Class B-4 Certificates, any Unpaid
Interest Amount for such Class;
(H) to the Excess Reserve Fund Account, the amount of any
Basis Risk Payment (without regard to Net Swap Receipts) for
such
Distribution Date;
(I) concurrently, from funds on deposit in the Excess
Reserve
Fund Account, an amount equal to any Basis Risk Carry Forward
Amount
with respect to the Principal Certificates for such
Distribution
Date to such Classes in the same order and priority as set forth
in
Section 4.02(a)(i);
(J) to the Supplemental Interest Trust, the amount of any
Defaulted Swap Termination Payment;
(K) to the Holders of the Class X Certificates, the
remainder
of the Class X Distributable Amount not distributed pursuant
to
Sections 4.02(a)(iii)(A)-(J);
(L) to the holders of the Class R-2 Certificates, any
remaining amount, in respect of Pooling-Tier REMIC-1; and
(M) to the Holders of the Class R-1 Certificates, any
remaining amount, in respect of Pooling-Tier REMIC 2, the
Lower-Tier
REMIC and the Upper-Tier REMIC.
(b) On each Distribution Date, all amounts representing
Prepayment
Premiums from the Mortgage Loans received during the related
Prepayment Period
shall be distributed by the Trustee to the holders of the Class
P Certificates.
(c) Notwithstanding the allocation of principal to the Class
A
Certificates described in Section 4.02(b) above, from and after
the Distribution
Date on which the aggregate Class Certificate Balances of the
Class M-1, Class
M-2, Class M-3, Class B-1, Class B-2, Class B-3 and Class B-4
Certificates and
the principal balance of the Class X Certificates have been
reduced to zero, any
principal distributions allocated to the Class A Certificates
are required to be
allocated pro rata to the Class A Certificates based on their
respective
Certificate Principal Balances.
(d) On any Distribution Date, any Relief Act Interest Shortfalls
and
Net Prepayment Interest Shortfalls for such Distribution Date
will be allocated
by the Trustee, pro rata, as a reduction of the Accrued
Certificate Interest
Distribution Amount for the Class A, Class M and Class B
Certificates, based on
the amount of interest to which such Classes would otherwise be
entitled on such
Distribution Date.
Section 4.03 Monthly Statements to Certificateholders. (a) Not
later
than each Distribution Date, the Trustee shall make available to
each
Certificateholder, each Servicer, the Depositor and each Rating
Agency a
statement setting forth with respect to the related
distribution:
(i) the amount thereof allocable to principal, separately
identifying the aggregate amount of any Principal Prepayments
and
Liquidation Proceeds included therein;
(ii) the amount thereof allocable to interest, any Unpaid
Interest
Amounts included in such distribution and any remaining Unpaid
Interest
Amounts after giving effect to such distribution, any Basis Risk
Carry
Forward Amount for such Distribution Date and the amount of all
Basis Risk
Carry Forward Amounts covered by withdrawals from the Excess
Reserve Fund
Account on such Distribution Date;
(iii) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be
distributable to
such Holders if there were sufficient funds available therefor,
the amount
of the shortfall and the allocation thereof as between principal
and
interest, including any Basis Risk Carry Forward Amount not
covered by
amounts in the Excess Reserve Fund Account;
(iv) the Class Certificate Balance of each Class of
Certificates
after giving effect to the distribution of principal on such
Distribution
Date;
(v) the Pool Stated Principal Balance for the following
Distribution
Date;
(vi) the amount of the Servicing Fees paid to or retained by
the
Servicer or Subservicer (with respect to the Subservicers, in
the
aggregate) with respect to such Distribution Date;
(vii) the Pass-Through Rate for each such Class of Certificates
with
respect to such Distribution Date;
(viii) the amount of Advances included in the distribution on
such
Distribution Date and the aggregate amount of Advances reported
by the
Servicer as outstanding as of the close of business on the
Determination
Date immediately preceding such Distribution Date;
(ix) the number and aggregate outstanding principal balances
of
Mortgage Loans (1) as to which the Scheduled Payment is
delinquent 31 to
60 days, 61 to 90 days and 91 or more days, (2) that have become
REO
Property, (3) that are in foreclosure and (4) that are in
bankruptcy, in
each case as of the close of business on the last Business Day
of the
immediately preceding month;
(x) for each of the preceding 12 calendar months, or all
calendar
months since the related Cut-off Date, whichever is less, the
aggregate
dollar amount of the Scheduled Payments (A) due on all
Outstanding
Mortgage Loans on each of the Due Dates in each such month and
(B)
delinquent 60 days or more on each of the Due Dates in each such
month;
(xi) with respect to all Mortgage Loans that became REO
Properties
during the preceding calendar month, the aggregate number of
such Mortgage
Loans and the aggregate Stated Principal Balance of such
Mortgage Loans as
of the close of business on the Determination Date preceding
such
Distribution Date and the date of acquisition thereof;
(xii) the total number and principal balance of any REO
Properties
(and market value, if available) as of the close of business on
the
Determination Date preceding such Distribution Date;
(xiii) whether a Trigger Event has occurred and is
continuing
(including the calculation of thereof and the aggregate
outstanding
balance of all 60+ Day Delinquent Mortgage Loans);
(xiv) the amount of any Basis Risk Carry Forward Amounts paid
from
the Excess Reserve Fund Account or the Supplemental Interest
Trust and the
amount of any Upper-Tier Carry Forward Amounts paid from the
Supplemental
Interest Trust;
(xv) in the aggregate and for each Class of Certificates,
the
aggregate amount of Applied Realized Loss Amounts incurred
during the
preceding calendar month and aggregate Applied Realized Loss
Amounts
through such Distribution Date;
(xvi) the amount of any Net Monthly Excess Cash Flow on such
Distribution Date and the allocation thereof to the
Certificateholders
with respect to Applied Realized Loss Amounts and Unpaid
Interest Amounts;
(xvii) the Overcollateralized Amount and Specified
Overcollateralized Amount;
(xviii) the amount distributed on the Class P Certificates;
(xix) the Cumulative Loss Percentage;
(xx) the amount distributed on the Class X Certificates;
(xxi) the amount of any Subsequent Recoveries for such
Distribution
Date;
(xxii) the amount of any Net Swap Payments, Net Swap Receipts,
Swap
Termination Payments or Defaulted Swap Termination Payments;
and
(xxiii) the calculations of LIBOR and Swap LIBOR.
(b) The Trustee's responsibility for providing the above
statement
to the Certificateholders, each Rating Agency, each Servicer and
the Depositor
is limited to the availability, timeliness and accuracy of the
information
derived from the applicable Servicer. The Trustee will provide
the above
statement via the Trustee's internet website. The Trustee's
website will
initially be located at https://www.tss.db.com/invr and
assistance in using the
website can be obtained by calling the Trustee's investor
relations desk at
1-800-735-7777. A paper copy of the above statement will also be
made available
upon request.
(c) Upon request, within a reasonable period of time after the
end
of each calendar year, the Trustee shall cause to be furnished
to each Person
who at any time during the calendar year was a
Certificateholder, a statement
containing the information set forth in clauses (a)(i) and
(a)(ii) of this
Section 4.03 aggregated for such calendar year or applicable
portion thereof
during which such Person was a Certificateholder. Such
obligation of the Trustee
shall be deemed to have been satisfied to the extent that
substantially
comparable information shall be provided by the Trustee pursuant
to any
requirements of the Code as from time to time in effect.
(d) Not later than the Reporting Date, each Servicer shall
furnish
to the Trustee and a monthly remittance advice statement (in a
format mutually
agreed upon by such Servicer and the Trustee) containing such
information as
shall be reasonably requested by the Trustee to provide the
reports required by
Section 4.03(a) as to the accompanying remittance and the period
ending on the
close of business on the last Business Day of the immediately
preceding month
(the "Servicer Remittance Report").
Each Servicer shall furnish to the Trustee an individual
loan
accounting report, as of the last Business Day of each month, to
document
Mortgage Loan payment activity on an individual Mortgage Loan
basis. With
respect to each month, the corresponding individual loan
accounting report (in
electronic format) shall be received by the Trustee no later
than the Reporting
Date, which report shall contain the following:
(i) with respect to each Scheduled Payment, the amount of
such
remittance allocable to principal (including a separate
breakdown of any
Principal Prepayment, including the date of such prepayment, and
any
Prepayment Premiums, along with a detailed report of interest on
principal
prepayment amounts remitted in accordance with Section
3.25);
(ii) with respect to each Scheduled Payment, the amount of
such
remittance allocable to interest;
(iii) the amount of servicing compensation received by such
Servicer
during the prior distribution period;
(iv) the individual and aggregate Stated Principal Balance of
the
Mortgage Loans;
(v) the aggregate of any expenses reimbursed to such Servicer
during
the prior distribution period pursuant to Section 3.11;
(vi) the number and aggregate outstanding principal balances
of
Mortgage Loans (a) delinquent (1) 31 to 60 days, (2) 61 to 90
days, or (3)
91 days or more; (b) as to which foreclosure has commenced; and
(c) as to
which REO Property has been acquired;
(vii) each Mortgage Loan which has been altered, modified or
varied
during such month, and the reason for such modification (i.e.,
extension
of maturity date, Mortgage Interest Rate);
(viii) with respect to each Liquidated Mortgage Loan, the amount
of
any Realized Losses for such Mortgage Loan; and
(ix) any other information reasonably required by the Trustee
to
enable it to prepare the monthly statement referred to in
Section 4.03(a).
(e) On the 5th Business Day of each month (the "Data File
Delivery
Date"), Countrywide shall deliver to the Trustee and (subject to
the terms of
that certain confidentiality agreement, dated as of the Closing
Date, among the
Depositor, the Purchaser and Countrywide) to the Depositor a
Market Value Change
Report and a data file incorporating the fields set forth in the
data file
layout set forth in Exhibit L hereto (the "Data File").
Section 4.04 Certain Matters Relating to the Determination of
LIBOR.
LIBOR shall be calculated by the Trustee in accordance with the
definition of
"LIBOR." Until all of the LIBOR Certificates are paid in full,
the Trustee will
at all times retain at least four Reference Banks for the
purpose of determining
LIBOR with respect to each LIBOR Determination Date. The Trustee
initially shall
designate the Reference Banks (after consultation with the
Depositor). Each
"Reference Bank" shall be a leading bank engaged in transactions
in Eurodollar
deposits in the international Eurocurrency market, shall not
control, be
controlled by, or be under common control with, the Trustee and
shall have an
established place of business in London. If any such Reference
Bank should be
unwilling or unable to act as such or if the Trustee should
terminate its
appointment as Reference Bank, the Trustee shall promptly
appoint or cause to be
appointed another Reference Bank (after consultation with the
Depositor). The
Trustee shall have no liability or responsibility to any Person
for (i) the
selection of any Reference Bank for purposes of determining
LIBOR or (ii) any
inability to retain at least four Reference Banks which is
caused by
circumstances beyond its reasonable control.
The Pass-Through Rate for each Class of LIBOR Certificates for
each
Interest Accrual Period shall be determined by the Trustee on
each LIBOR
Determination Date so long as the LIBOR Certificates are
outstanding on the
basis of LIBOR and the respective formulae appearing in
footnotes corresponding
to the LIBOR Certificates in the table relating to the
Certificates in the
Preliminary Statement. The
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