EXECUTION COPY
GS MORTGAGE SECURITIES
CORP.,
Depositor,
NATIONAL CITY HOME LOAN SERVICES,
INC.,
Servicer,
DEUTSCHE BANK NATIONAL TRUST
COMPANY,
Trustee,
and
WACHOVIA BANK, NATIONAL
ASSOCIATION,
Co-Trustee
POOLING AND SERVICING
AGREEMENT
Dated as of July 1, 2005
FFMLT TRUST 2005-FFA
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-FFA
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
|
Section 2.01
|
Conveyance of Mortgage
Loans
|
|
Section 2.02
|
Acceptance by the Trustee of the
Mortgage Loans
|
|
Section 2.03
|
Representations, Warranties and
Covenants of the Servicer
|
|
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 and
Responsible Party Obligations
|
ARTICLE III
ADMINISTRATION AND SERVICING OF
MORTGAGE LOANS
|
Section 3.01
|
Servicer to Service Mortgage
Loans
|
|
Section 3.02
|
Subservicing Agreements between
the Servicer and Subservicers
|
|
Section 3.03
|
Successor Subservicers
|
|
Section 3.04
|
Liability of the
Servicer
|
|
Section 3.05
|
No Contractual Relationship
between Subservicers and the Trustee
|
|
Section 3.06
|
Assumption or Termination of
Subservicing Agreements by Trustee
|
|
Section 3.07
|
Collection of Certain Mortgage
Loan Payments
|
|
Section 3.08
|
Subservicing Accounts
|
|
Section 3.09
|
Reserved.
|
|
Section 3.10
|
Collection Account
|
|
Section 3.11
|
Withdrawals from the Collection
Account
|
|
Section 3.12
|
Investment of Funds in the
Collection Account and the Distribution Account
|
|
Section 3.13
|
Maintenance of Hazard Insurance,
Errors and Omissions and Fidelity Coverage
|
|
Section 3.14
|
Enforcement of Due-on-Sale
Clauses; Assumption Agreements
|
|
Section 3.15
|
Realization upon Defaulted
Mortgage Loans
|
|
Section 3.16
|
Release of Mortgage
Files
|
|
Section 3.17
|
Title, Conservation and
Disposition of REO Property
|
|
Section 3.18
|
[RESERVED].
|
|
Section 3.19
|
Access to Certain Documentation
and Information Regarding the Mortgage Loans
|
|
Section 3.20
|
Documents, Records and Funds in
Possession of the Servicer to Be Held for the Trustee
|
|
Section 3.21
|
Servicing Compensation
|
|
Section 3.22
|
Annual Statement as to
Compliance
|
|
Section 3.23
|
Annual Independent Public
Accountants’ Servicing Statement; Financial
Statements
|
|
Section 3.24
|
Trustee to Act as
Servicer
|
|
Section 3.25
|
Compensating Interest
|
|
Section 3.26
|
Credit Reporting;
Gramm-Leach-Bliley Act
|
|
Section 3.27
|
Excess Reserve Fund Account;
Distribution Account
|
|
Section 3.28
|
Optional Purchase of Delinquent
Mortgage Loans
|
|
Section 3.29
|
Maintenance of Mortgage Pool
Insurance Policy
|
ARTICLE IV
DISTRIBUTIONS AND ADVANCES BY THE
Servicer
|
Section 4.01
|
Advances
|
|
Section 4.02
|
Priorities of
Distribution
|
|
Section 4.03
|
Monthly Statements to
Certificateholders
|
|
Section 4.04
|
Certain Matters Relating to the
Determination of LIBOR
|
|
Section 4.05
|
Allocation of Applied Realized
Loss Amounts
|
|
Section 4.06
|
Distributions on the REMIC I
Regular Interests.
|
ARTICLE V
THE CERTIFICATES
|
Section 5.01
|
The Certificates
|
|
Section 5.02
|
Certificate Register;
Registration of Transfer and Exchange of Certificates
|
|
Section 5.03
|
Mutilated, Destroyed, Lost or
Stolen Certificates
|
|
Section 5.04
|
Persons Deemed Owners
|
|
Section 5.05
|
Access to List of
Certificateholders’ Names and Addresses
|
|
Section 5.06
|
Maintenance of Office or
Agency
|
ARTICLE VI
THE DEPOSITOR AND THE
Servicer
|
Section 6.01
|
Respective Liabilities of the
Depositor and the Servicer
|
|
Section 6.02
|
Merger or Consolidation of the
Depositor or the Servicer
|
|
Section 6.03
|
Limitation on Liability of the
Depositor, the Servicer and Others
|
|
Section 6.04
|
Limitation on Resignation of the
Servicer
|
|
Section 6.05
|
Additional Indemnification by the
Servicer; Third Party Claims
|
ARTICLE VII
DEFAULT
|
Section 7.01
|
Events of Default
|
|
Section 7.02
|
Trustee to Act; Appointment of
Successor
|
|
Section 7.03
|
Notification to
Certificateholders
|
ARTICLE VIII
CONCERNING THE TRUSTEE AND
CO-TRUSTEE
|
Section 8.01
|
Duties of the Trustee
|
|
Section 8.02
|
Certain Matters Affecting the
Trustee
|
|
Section 8.03
|
Trustee Not Liable for
Certificates or Mortgage Loans
|
|
Section 8.04
|
Trustee May Own
Certificates
|
|
Section 8.05
|
Trustee’s Fees and
Expenses
|
|
Section 8.06
|
Eligibility Requirements for the
Trustee
|
|
Section 8.07
|
Resignation and Removal of the
Trustee
|
|
Section 8.08
|
Successor Trustee
|
|
Section 8.09
|
Merger or Consolidation of the
Trustee
|
|
Section 8.10
|
Appointment of Co-Trustee or
Separate Trustee
|
|
Section 8.11
|
Tax Matters
|
|
Section 8.12
|
Periodic Filings
|
|
Section 8.13
|
Tax Classification of the Excess
Reserve Fund Account
|
|
Section 8.14
|
Duties of the
Co-Trustee.
|
|
Section 8.15
|
Co-Trustee’s Fees and
Expenses.
|
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
|
Third Party
Beneficiary
|
|
Section 10.12
|
Waiver of Jury Trial
|
|
Section 10.13
|
Limitation of Damages
|
SCHEDULES
|
Schedule I
|
Mortgage Loan Schedule
|
|
Schedule II
|
Schedule Representations and
Warranties of National City, as Servicer
|
|
Schedule III
|
Schedule of Covered Loans
|
EXHIBITS
|
Exhibit A-1
|
Form of Class A,
Class M and Class B Certificates
|
|
Exhibit B
|
Form of Class P
Certificate
|
|
Exhibit C
|
Form of Class R
Certificate
|
|
Exhibit D-1
|
Form of Class X
Certificate
|
|
Exhibit D-2
|
Form of Class X-1
Certificate
|
|
Exhibit E
|
Form of Initial Certification
of Trustee
|
|
Exhibit F
|
Form of Document Certification
and Exception Report of Trustee
|
|
Exhibit G
|
Form of Residual Transfer
Affidavit
|
|
Exhibit H
|
Form of Transferor
Certificate
|
|
Exhibit I-1
|
Form of Rule 144A
Letter
|
|
Exhibit I-2
|
Form of Investment Letter (Non Rule
144A)
|
|
Exhibit J
|
Form of Request for
Release
|
|
Exhibit K
|
Contents of Each Mortgage
File
|
|
Exhibit L
|
[Reserved]
|
|
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
|
Mortgage Pool Insurance
Policy
|
|
Exhibit Q
|
Form of Power of Attorney
|
|
Exhibit R
|
Responsible Party
Agreements
|
THIS POOLING AND SERVICING
AGREEMENT, dated as of July 1, 2005, is among GS MORTGAGE
SECURITIES CORP., a Delaware corporation (the
“Depositor”), NATIONAL CITY HOME LOAN SERVICES, INC., a
Delaware corporation, as servicer (the “Servicer”),
DEUTSCHE BANK NATIONAL TRUST COMPANY, a national banking
association, as trustee (the “Trustee”), and WACHOVIA
BANK, NATIONAL ASSOCIATION, a national banking association, as
co-trustee (the “Co-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 Depositor intends to sell
pass-through certificates to be issued hereunder in multiple
classes, which in the aggregate will evidence the entire beneficial
ownership interest of the Trust Fund created hereunder. The Trust
Fund will consist of a segregated pool of assets comprised of the
Mortgage Loans and certain other related assets subject to this
Agreement.
REMIC I
As provided herein, the Trustee will
elect to treat the segregated pool of assets consisting of the
Mortgage Loans and certain other related assets subject to this
Agreement (other than the Prepayment Premiums and the Excess
Reserve Fund Account) as a REMIC for federal income tax purposes,
and such segregated pool of assets will be designated as
“REMIC I”. The Class R-1 Certificates will be the sole
class of “residual interests” in REMIC I for purposes
of the REMIC Provisions (as defined herein). The following table
irrevocably sets forth the designation, the REMIC I Remittance
Rate, the initial Uncertificated Balance and, for purposes of
satisfying Treasury regulation Section 1.860G-1(a)(4)(iii),
the “latest possible maturity date” for each of the
REMIC I Regular Interests (as defined herein). None of the REMIC I
Regular Interests will be certificated.
|
Designation
|
|
REMIC I
Remittance
Rate
|
|
Initial
Uncertificated
Balance
|
|
Latest Possible
Maturity Date (1)
|
|
|
I-LTAA
|
|
Variable (2)
|
|
$
|
725,810,355.71
|
|
March 25, 2025
|
|
|
I-LTA1
|
|
Variable (2)
|
|
$
|
3,006,870.00
|
|
March 25, 2025
|
|
|
I-LTA2A
|
|
Variable (2)
|
|
$
|
1,464,330.00
|
|
March 25, 2025
|
|
|
I-LTA2B
|
|
Variable (2)
|
|
$
|
920,530.00
|
|
March 25, 2025
|
|
|
I-LTM1
|
|
Variable (2)
|
|
$
|
696,180.00
|
|
March 25, 2025
|
|
|
I-LTM2
|
|
Variable (2)
|
|
$
|
403,640.00
|
|
March 25, 2025
|
|
|
I-LTM3
|
|
Variable (2)
|
|
$
|
162,940.00
|
|
March 25, 2025
|
|
|
I-LTM4
|
|
Variable (2)
|
|
$
|
148,130.00
|
|
March 25, 2025
|
|
|
I-LTB1
|
|
Variable (2)
|
|
$
|
155,530.00
|
|
March 25, 2025
|
|
|
I-LTB2
|
|
Variable (2)
|
|
$
|
111,090.00
|
|
March 25, 2025
|
|
|
I-LTB3
|
|
Variable (2)
|
|
$
|
144,420.00
|
|
March 25, 2025
|
|
|
I-LTZZ
|
|
Variable (2)
|
|
$
|
118,500.00
|
|
March 25, 2025
|
|
___________________________
|
(1)
|
For purposes of
Section 1.860G-1(a)(4)(iii) of the Treasury regulations, the
Distribution Date immediately following the maturity date for the
Mortgage Loan with the latest maturity date has been designated as
the “latest possible maturity date” for each REMIC I
Regular Interest.
|
|
(2)
|
Calculated in accordance with the
definition of “REMIC I Remittance Rate”
herein.
|
REMIC II
As provided herein, the Trustee will
elect to treat the segregated pool of assets consisting of the
REMIC I Regular Interests as a REMIC for federal income tax
purposes, and such segregated pool of assets will be designated as
“REMIC II.” The Class R-2 Certificates will evidence
the sole class of “residual interests” in REMIC II for
purposes of the REMIC Provisions. The following table irrevocably
sets forth the designation, the Pass-Through Rate, the initial
aggregate Certificate Balance and, for purposes of satisfying
Treasury regulation Section 1.860G-1(a)(4)(iii), the
“latest possible maturity date” for the indicated
Classes of Certificates. The Trust Fund will also issue the Class
X-1 Certificates and the Class P Certificates, which will not be
issued by any REMIC created hereunder.
Designation
|
|
Pass-Through Rate
|
|
Initial Aggregate Certificate
Balance
|
|
Latest Possible
Maturity Date (1)
|
|
|
Class A-1
|
|
Variable(2)
|
|
$
|
300,687,000.00
|
|
March 25, 2025
|
|
|
Class A-2A
|
|
Variable(2)
|
|
$
|
146,433,000.00
|
|
March 25, 2025
|
|
|
Class A-2B
|
|
Variable(2)
|
|
$
|
92,053,000.00
|
|
March 25, 2025
|
|
|
Class M-1
|
|
Variable(2)
|
|
$
|
69,618,000.00
|
|
March 25, 2025
|
|
|
Class M-2
|
|
Variable(2)
|
|
$
|
40,364,000.00
|
|
March 25, 2025
|
|
|
Class M-3
|
|
Variable(2)
|
|
$
|
16,294,000.00
|
|
March 25, 2025
|
|
|
Class M-4
|
|
Variable(2)
|
|
$
|
14,813,000.00
|
|
March 25, 2025
|
|
|
Class B-1
|
|
Variable(2)
|
|
$
|
15,553,000.00
|
|
March 25, 2025
|
|
|
Class B-2
|
|
Variable(2)
|
|
$
|
11,109,000.00
|
|
March 25, 2025
|
|
|
Class B-3
|
|
Variable(2)
|
|
$
|
14,442,000.00
|
|
March 25, 2025
|
|
|
Class B-4
|
|
Variable(2)
|
|
$
|
11,850,000.00
|
|
March 25, 2025
|
|
|
Class B-5
|
|
Variable(2)
|
|
$
|
7,406,000.00
|
|
March 25, 2025
|
|
|
Class X
|
|
N/A(3)
|
|
$
|
811.95
|
|
March 25, 2025
|
|
_________________
|
(1)
|
For purposes of
Section 1.860G-1(a)(4)(iii) of the Treasury regulations, the
Distribution Date immediately following the maturity date for the
Mortgage Loan with the latest maturity date has been designated as
the “latest possible maturity date” for each Class of
Certificates.
|
|
(2)
|
Calculated in accordance with the
definition of “Pass-Through Rate” herein.
|
|
(3)
|
The Class X Certificates will accrue
interest at their variable Pass-Through Rate on the Notional Amount
of the Class X Certificates outstanding from time to time which
shall equal the Uncertificated Balance of the REMIC I Regular
Interests. The Class X Certificates will not accrue interest on
their Certificate Balance.
|
As of the Cut-off Date, the Mortgage
Loans had an aggregate Stated Principal Balance equal to
approximately $740,622,811.95.
The minimum denomination for each
Class of Offered Certificates and the Class B-4 Certificates and
Class B-5 Certificates will be $25,000 initial Certificate Balance
with integral multiples of $1 in excess thereof. The minimum
denomination for the Class R-1, Class R-2, Class P and Class X
Certificates will be a 1% Percentage Interest in each such Class.
The Class X-1 Certificates will be issued as a single Certificate
and will not have a Class Certificate Balance.
It is expected that each Class of
Certificates will receive its final distribution of principal and
interest on or prior to the Final Scheduled Distribution
Date.
Set forth below are designations of
Classes of Certificates to the categories used herein:
|
Book-Entry Certificates
|
All Classes of Certificates other
than the Physical Certificates.
|
|
Class A Certificates
|
Class A-1, Class A-2A and Class
A-2B Certificates.
|
|
Class R Certificates
|
Class R-1 Certificates and Class R-2
Certificates.
|
|
Delay Certificates
|
The Fixed Rate
Certificates.
|
|
ERISA-Restricted
Certificates
|
Class B-4, Class B-5, Class
R-1, Class R-2, Class P, Class X and Class X-1
Certificates; any Certificate with a rating below the lowest
applicable permitted rating under the Underwriters’
Exemption.
|
|
Fixed Rate Certificates
|
Class M-2, Class M-3, Class M-4,
Class B-1, Class B-2, Class B-3, Class B-4 and Class B-5
Certificates.
|
|
LIBOR Certificates
|
The Class A Certificates and Class
M-1 Certificates.
|
|
Non-Delay Certificates
|
LIBOR Certificates and Class X
Certificates
|
|
Offered Certificates
|
All Classes of Certificates other
than the Private Certificates.
|
|
Physical Certificates
|
Class P, Class X, Class
X-1, Class R-1 and Class R-2 Certificates.
|
|
Private Certificates
|
Class B-4, Class B-5, Class P,
Class X, Class X-1, Class R-1 and Class R-2
Certificates.
|
|
Rating Agencies
|
S&P and
Moody’s.
|
|
Regular Certificates
|
All Classes of Certificates other
than the Class P, Class X-1, Class R-1and Class R-2
Certificates.
|
|
Residual Certificates
|
Class R-1 Certificates and
Class R-2 Certificates.
|
|
Subordinated Certificates
|
Class M-1, Class M-2,
Class M-3, Class M-4, Class B-1, Class B-2, Class B-3,
Class B-4 and Class B-5 Certificates.
|
ARTICLE I
DEFINITIONS
Section
1.01 Definitions . Whenever
used in this Agreement, the following words and phrases, unless the
context otherwise requires, shall have the following
meanings:
Accepted Servicing Practices: With
respect to any Mortgage Loan, 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 National City
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 National City’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 or the Excess Reserve Fund
Account. Each Account shall be an Eligible Account.
Accrued Certificate Interest
Distribution Amount: With respect to any Distribution Date for each
Class of Offered Certificates and the Class B-4 Certificates and
Class B-5 Certificates, the amount of interest accrued during the
related Interest Accrual Period at the applicable Pass-Through Rate
on the related Class Certificate Balance immediately prior to such
Distribution Date, as reduced by such Class’s share of Net
Prepayment Interest Shortfalls and Relief Act Interest Shortfalls
for the related Due Period allocated to such Class pursuant to
Section 4.02.
Adjusted Net Mortgage Interest Rate:
As to each Mortgage Loan and at any time, the per annum rate equal
to the Mortgage Interest Rate less the Expense Fee Rate.
Advance: Any P&I Advance or
Servicing Advance.
Advancing Person: As defined in
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 Offered Certificates and
the Class B-4 Certificates and Class B-5 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) In the case of
a purchase, the least of the sale price of the related Mortgaged
Property, its appraised value or its review appraisal value (as
determined pursuant to the Underwriting Guidelines) at the time of
sale, or (ii) in the case of a refinancing or modification of a
Mortgage Loan, the appraised value of the related Mortgaged
Property at the time of the refinancing or modification.
Assignment and Recognition
Agreement: The Assignment and Recognition Agreement, dated as of
July 21, 2005, by and between the Responsible Party, the Purchaser
and the Depositor.
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 (including any proceeds
received under the Mortgage Pool Insurance Policy) 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 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 or a Mortgage Loan repurchased by the Responsible
Party or the Purchaser as of such Distribution Date; and (v) the
proceeds received with respect to the termination of the Trust Fund
pursuant to clause (a) of Section 9.01, reduced by
(y) 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 Servicer, the Depositor or
the Trustee (or co-trustee) are entitled to be paid or reimbursed
pursuant to this Agreement.
Basic Principal Distribution Amount:
With respect to any Distribution Date, the excess of (i) the
aggregate Principal Remittance Amount for such Distribution Date
over (ii) the Excess Overcollateralized Amount, if any, for
such Distribution Date.
Basis Risk Carry Forward Amount:
With respect to the LIBOR Certificates, as of any Distribution
Date, the sum of (A) if on such Distribution Date the Pass-Through
Rate for any Class of LIBOR Certificates is based upon the WAC Cap,
the excess of (i) the amount of interest such Class of LIBOR
Certificates would otherwise be entitled to receive on such
Distribution Date had the Pass-Through Rate not been subject to the
WAC Cap, over (ii) the amount of interest payable on such
Class of Certificates at the WAC Cap, and (B) the Basis Risk
Carry
Forward Amount for such Class of
LIBOR 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 LIBOR
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 Basis Risk Carry Forward Amounts for such Distribution
Date and (ii) the Class X Distributable Amount (prior to
any reduction for Basis Risk Payments).
Best’s: Best’s Key
Rating Guide, as the same shall be amended from time to
time.
Book-Entry Certificates: As
specified in the Preliminary Statement.
Business Day: Any day other than
(i) Saturday or Sunday, or (ii) a day on which banking or
savings and loan institutions, in (a) the States of New York,
Ohio, California and Delaware, (b) the State in which the
Servicer’s servicing operations are located, or (c) the
State in which the Trustee’s operations are located, are
authorized or obligated by law or executive order to be
closed.
Certificate: Any one of the
Certificates executed by the Trustee in substantially the forms
attached hereto as exhibits.
Certificate Balance: With respect to
any Class of Certificates, other than the Class P, Class R-1
or Class R-2 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 P, Class R-1 and Class R-2 Certificates
have no Certificate Balance. With respect to each Class X
Certificate as of any date of determination, an amount equal to the
Percentage Interest evidenced by such Certificate times the excess,
if any, of (A) the then aggregate Uncertificated Balances of the
REMIC I Regular Interests over (B) the then aggregate Class
Certificate Balance of the Class A Certificates, Class M
Certificates and Class B Certificates then outstanding. The
aggregate initial Class Certificate Balance of each Class of
Regular Certificates is set forth in the Preliminary Statement
hereto.
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).
Charged Off Loan: With respect to
any Distribution Date, a defaulted Mortgage Loan that is 180 days
delinquent and for which coverage under the related Mortgage Pool
Insurance Policy is not available that has not yet been liquidated,
giving rise to a Realized Loss.
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 Balance of the
Class A-1, Class A-2A and Class A-2B Certificates immediately
prior to such Distribution Date over (ii) the lesser of
(A) 37.50% of the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date and (B) the excess,
if any, of the aggregate Stated Principal Balance of the Mortgage
Loans for such Distribution Date over the Overcollateralization
Floor.
Class B-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
Balance of the Class A Certificates (after taking into account
the distribution of the Class A Principal Distribution Amount
on such Distribution Date), (B) the Class Certificate Balance of
the Class M-1 Certificates (after taking into account the
distribution of the Class M-1 Principal Distribution Amount on
such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the
distribution of the Class M-2 Principal Distribution Amount on
such Distribution Date), (D) the Class Certificate Balance of the
Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on
such Distribution Date), (E) the Class Certificate Balance of the
Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on
such Distribution Date) and (F) the Class Certificate Balance of
the Class B-1 Certificates immediately prior to such
Distribution Date, over (ii) the lesser of (A) the product
of
(x) 79.80% 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-2 Certificates: All
Certificates bearing the class designation of
“Class B-2.”
Class B-2 Principal
Distribution Amount: With respect to any Distribution Date, the
excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking
into account the distribution of the Class A Principal
Distribution Amount on such Distribution Date), (B) the Class
Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date),
(C) the Class Certificate Balance of the Class M-2
Certificates (after taking into account the distribution of the
Class M-2 Principal Distribution Amount on such Distribution
Date), (D) the Class Certificate Balance of the Class M-3
Certificates (after taking into account the distribution of the
Class M-3 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class M-4
Certificates (after taking into account the distribution of the
Class M-4 Principal Distribution Amount on such Distribution
Date), (F) the Class Certificate Balance of the Class B-1
Certificates (after taking into account the distribution of the
Class B-1 Principal Distribution Amount on such Distribution
Date) and (G) 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) 82.80% 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-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 Balance of the Class A Certificates (after taking
into account the distribution of the Class A Principal
Distribution Amount on such Distribution Date), (B) the Class
Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date),
(C) the Class Certificate Balance of the Class M-2
Certificates (after taking into account the distribution of the
Class M-2 Principal Distribution Amount on such Distribution
Date), (D) the Class Certificate Balance of the Class M-3
Certificates (after taking into account the distribution of the
Class M-3 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class M-4
Certificates (after taking into account the distribution of the
Class M-4 Principal Distribution Amount on such Distribution
Date), (F) the Class Certificate Balance of the Class B-1
Certificates (after taking into account the distribution of the
Class B-1 Principal Distribution Amount on such Distribution
Date), (G) 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 (H) 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) 86.70% and (y) the aggregate Stated Principal
Balances of the Mortgage Loans for such
Distribution Date, and (B) the
excess, if any, of the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class 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 Balance of the Class A Certificates (after taking
into account the distribution of the Class A Principal
Distribution Amount on such Distribution Date), (B) the Class
Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date),
(C) the Class Certificate Balance of the Class M-2
Certificates (after taking into account the distribution of the
Class M-2 Principal Distribution Amount on such Distribution
Date), (D) the Class Certificate Balance of the Class M-3
Certificates (after taking into account the distribution of the
Class M-3 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class M-4
Certificates (after taking into account the distribution of the
Class M-4 Principal Distribution Amount on such Distribution
Date), (F) the Class Certificate Balance of the Class B-1
Certificates (after taking into account the distribution of the
Class B-1 Principal Distribution Amount on such Distribution
Date), (G) 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), (H) 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 (I) 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) 89.90% and
(y) the aggregate Stated Principal Balances of the Mortgage
Loans for such Distribution Date, and (B) the excess, if any,
of the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date over the Overcollateralization
Floor.
Class B-5 Certificates: All
Certificates bearing the class designation of
“Class B-5.”
Class B-5 Principal
Distribution Amount: With respect to any Distribution Date, the
excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A Certificates (after taking
into account the distribution of the Class A Principal
Distribution Amount on such Distribution Date), (B) the Class
Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date),
(C) the Class Certificate Balance of the Class M-2
Certificates (after taking into account the distribution of the
Class M-2 Principal Distribution Amount on such Distribution
Date), (D) the Class Certificate Balance of the Class M-3
Certificates (after taking into account the distribution of the
Class M-3 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class M-4
Certificates (after taking into account the distribution of the
Class M-4 Principal Distribution Amount on such Distribution
Date), (F) the Class Certificate Balance of the Class B-1
Certificates (after taking into account the distribution of the
Class B-1 Principal Distribution Amount on such Distribution
Date), (G) 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),
(H) 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), (I) the
Class Certificate Balance of the Class B-4 Certificates (after
taking into account the distribution of the Class B-4 Principal
Distribution Amount on such Distribution Date) and (J) the
Class Certificate Balance of the Class B-5 Certificates
immediately prior to such Distribution Date, over (ii) the
lesser of (A) the product of (x) 91.90% and (y) the
aggregate Stated Principal Balances of the Mortgage Loans for such
Distribution Date, and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date over the Overcollateralization Floor.
Class Certificate Balance: With
respect to any Class and as to any date of determination, the
aggregate of the Certificate Balances of all Certificates of such
Class as of such date.
Class M Certificates: The
Class M-1, Class M-2, Class M-3 and Class M-4
Certificates.
Class M-1 Certificates: All
Certificates bearing the class designation of
“Class M-1.”
Class M-1 Principal
Distribution Amount: With respect to any Distribution Date, the
excess of (i) the sum of (A) the aggregate Class
Certificate Balance 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) 56.30% 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 Balance 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) 67.20% 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-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 Balance 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) 71.60% 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-4 Certificates: All
Certificates bearing the class designation of
“Class M-4.”
Class M-4 Principal
Distribution Amount: With respect to any Distribution Date, the
excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A Certificates (after taking
into account the distribution of the Class A Principal
Distribution Amount on such Distribution Date), (B) the Class
Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date), (C) the
Class Certificate Balance of the Class M-2 Certificates (after
taking into account the distribution of the Class M-2
Principal Distribution Amount on such Distribution Date), (D) the
Class Certificate Balance of the Class M-3 Certificates (after
taking into account the distribution of the Class M-3
Principal Distribution Amount on such Distribution Date) and
(E) the Class Certificate Balance of the Class M-4
Certificates immediately prior to such Distribution Date over
(ii) the lesser of (A) the product of (x) 75.60% 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 P Certificates: All
Certificates bearing the class designation of
“Class P.”
Class R Certificates: The Class
R-1 Certificates and Class R-2 Certificates.
Class R-1 Certificates: All
Certificates bearing the designation of “Class R-1” and
representing the Residual Interest in REMIC I.
Class R-2 Certificates: All
Certificates bearing the designation of “Class R-2” and
representing the Residual Interest in REMIC II.
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.
Closing Date: July 21,
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 any date and as to any Mortgage Loan, the ratio,
expressed as a percentage, of the (a) sum of (i) the outstanding
principal balance of the Mortgage Loan and (ii) the outstanding
principal balance as of such date of any mortgage loan or mortgage
loans that are senior or equal in priority to the Mortgage Loan and
which are secured by the same Mortgaged Property to (b) the
Appraised Value.
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 occurring during the related Prepayment
Period, and (b) the Servicing Fee payable to the Servicer for
such Distribution Date.
Condemnation Proceeds: All awards,
compensation and/or settlements in respect of a Mortgaged Property,
whether permanent or temporary, partial or entire, by exercise of
the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms
of the related Mortgage Loan Documents remaining after, or not
otherwise required to be applied to, the satisfaction of any
related First Lien Mortgage Loan.
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-FF050A, facsimile no. (714) 247-6478 and which is
the address to which notices to and correspondence with the Trustee
should be directed.
Corresponding Certificate: With
respect to each REMIC I Regular Interest, as follows:
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REMIC I Regular Interest I-LTA1
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A-1
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REMIC I Regular Interest I-LTA2A
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A-2A
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REMIC I Regular Interest I-LTA2B
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A-2B
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REMIC I Regular Interest I-LTM1
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M-1
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REMIC I Regular Interest I-LTM2
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M-2
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REMIC I Regular Interest I-LTM3
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M-3
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REMIC I Regular Interest I-LTM4
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M-4
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REMIC I Regular Interest I-LTB1
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B-1
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REMIC I Regular Interest I-LTB2
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B-2
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REMIC I Regular Interest I-LTB3
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B-3
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REMIC I Regular Interest I-LTB4
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B-4
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REMIC I Regular Interest I-LTB5
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B-5
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Co-Trustee: Wachovia Bank, National
Association, and its successor in interest, or any successor
Co-Trustee appointed as provided in this Pooling and Servicing
Agreement.
Covered Loan: Any of the Mortgage
Loans listed on Schedule IV attached hereto which have been
designated as eligible for coverage under the Mortgage Pool
Insurance Policy.
Custodial File: With respect to each
Mortgage Loan, any Mortgage Loan Document which is delivered to the
Trustee or which at any time comes into the possession of the
Trustee.
Cut-off Date: July 1,
2005.
Cut-off Date Pool Principal Balance:
The aggregate Stated Principal Balance 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 Tape Information: The
information provided by the Responsible Party or the Servicer as of
the Cut-off Date to the Depositor setting forth the following
information with respect to each Mortgage Loan: (1) the applicable
Responsible Party’s Mortgage Loan identifying number; (2) the
Mortgagor’s name; (3) the street address of the Mortgaged
Property including the city, state and zip code; (4) a code
indicating whether the Mortgaged Property is owner-occupied, a
second home or investment property; (5) the number and type of
residential units constituting the Mortgaged Property (i.e., a
single family residence, a 2-4 family residence, a unit in a
condominium project or a unit in a planned unit development 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) 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) a code indicating the purpose of
the loan (i.e., purchase, rate and term refinance, equity take-out
refinance); (16) a code indicating the documentation style (i.e.,
full documentation, limited documentation or stated income); (17)
the loan credit classification (as described in the Underwriting
Guidelines); (18) whether such Mortgage Loan provides for a
Prepayment Premium; (19) the Prepayment Premium period of such
Mortgage Loan, if applicable; (20) a description of the Prepayment
Premium, if applicable; (21) the Mortgage Interest Rate as of
origination; (22) the credit risk score (FICO score) at
origination; (23) the date of origination; (24) a code indicating
whether the Mortgage Loan has been modified; (25) the payment
history; (26) the Due Date for the first Scheduled Payment; (27)
the original Scheduled Payment due; (28) with respect to the
related Mortgagor, the debt-to-income ratio; (29) the Appraised
Value of the Mortgaged Property; (30) the sales price of the
Mortgaged Property if the Mortgage Loan was originated in
connection with the purchase of the Mortgaged Property; (31) the
Mortgage Interest Rate calculation method (i.e., 30/360, simple
interest, other); (32) a code indicating whether the Mortgage Loan
is a Section 32 Mortgage Loan; (33) a code indicating whether the
Mortgage Loan is assumable; and (34) a code indicating if a
Mortgage Loan is or has had a 30 Day Delinquency. With respect to
the Mortgage Loans in the aggregate: (1) the number of
Mortgage Loans; (2) the current aggregate outstanding
principal balance of the Mortgage Loans; (3) the weighted
average Mortgage Interest Rate of the Mortgage Loans; and
(4) the weighted average maturity of the Mortgage
Loans.
Debt Service Reduction: With respect
to any Mortgage Loan, a reduction by a court of competent
jurisdiction in a proceeding under the United States Bankruptcy
Code in the Scheduled Payment for such Mortgage Loan which became
final and non appealable, except for such a reduction resulting
from a Deficient Valuation or any reduction that results in a
permanent forgiveness of principal.
Deficient Valuation: With respect to
any Mortgage Loan, a valuation of the related Mortgaged Property by
a court of competent jurisdiction in an amount less than the then
outstanding principal balance of the Mortgage Loan, which valuation
results from a proceeding initiated under the United States
Bankruptcy Code.
Definitive Certificates: Any
Certificate evidenced by a Physical Certificate and any Certificate
issued in lieu of a Book-Entry Certificate pursuant to
Section 5.02(e).
Delay Certificates: As specified in
the Preliminary Statement.
Deleted Mortgage Loan: Any Mortgage
Loan permitted to be removed from the Trust Fund under the
circumstances set forth in the Assignment and Recognition
Agreement.
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,
to the extent they are Rating Agencies hereunder.
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 FFMLT Trust
2005-FFA Mortgage Pass-Through Certificates,
Series 2005-FFA.” 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 August 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 and
“P-1” by Moody’s (and a comparable rating if
another Rating Agency is specified by the Depositor by written
notice to the Servicer) at the time any amounts are held on deposit
therein, (ii) a trust account or accounts maintained with a
federal or state chartered depository institution or trust company
acting in its fiduciary capacity or (iii) any other account
acceptable to each Rating Agency. Eligible Accounts may bear
interest, and may include, if otherwise qualified under this
definition, accounts maintained with the Trustee.
ERISA: The Employee Retirement
Income Security Act of 1974, as amended.
ERISA-Restricted Certificate: As
specified in the Preliminary Statement.
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 FFMLT Trust 2005-FFA, Mortgage Pass-Through
Certificates, Series 2005-FFA.” Funds in the Excess Reserve
Fund Account shall be held in trust for the Regular
Certificateholders for the uses and purposes set forth in this
Agreement. Amounts on deposit in the Excess Reserve Fund Account
shall not be invested.
Exchange Act: The Securities
Exchange Act of 1934, as amended.
Expense Fee Rate: As to each
Mortgage Loan, a per annum rate equal to the sum of the Servicing
Fee Rate and the Trustee Fee Rate.
Expense Fees: As to each Mortgage
Loan, the sum of the Servicing Fee and the Trustee Fee.
Extra Principal Distribution Amount:
As of any Distribution Date, the lesser of (x) the related
Total Monthly Excess Spread for such Distribution Date and
(y) the related Overcollateralization Deficiency for such
Distribution Date.
Fair Value: The fair market value of
all of the property of the Trust, as agreed upon between the
Servicer and a majority of the Class R-1 Certificateholders;
provided, however, that if the Servicer and a majority of the Class
R-1 Certificateholders do not agree upon the fair market value of
all the property of the Trust, then the Depositor shall solicit
competitive bids to prospective purchasers that are recognized
broker dealers. The Fair Value shall be the highest bid received by
the Trustee from the closed bids solicited by the Depositor or its
designee, provided that the Depositor shall certify to the Trustee
that it received bids from no fewer than three prospective
purchasers, and provided further that the Majority Class
X
Certificateholder may only bid if a
Person not affiliated with the Depositor holds at least a 10%
Percentage Interest in the Class X Certificates.
Fannie Mae: The Federal National
Mortgage Association and its successors in interest.
Fannie Mae Guides: The Fannie Mae
Seller’s Guide and the Fannie Mae Servicer’s Guide and
all amendments or additions thereto.
FDIC: The Federal Deposit Insurance
Corporation, and its successors in interest.
Final Recovery Determination: With
respect to any defaulted Mortgage Loan or any REO Property (other
than a Mortgage Loan or REO Property purchased by the Responsible
Party or the Purchaser as contemplated by this Agreement), a
determination made by the Servicer that all Insurance Proceeds
(including any proceeds under the Mortgage Pool Insurance Policy),
Condemnation Proceeds, Liquidation Proceeds and other payments or
recoveries which the Servicer, in its reasonable good faith
judgment, expects to be finally recoverable in respect thereof have
been so recovered. The Servicer shall maintain records, prepared by
a Servicing Officer, of each Final Recovery Determination made
thereby.
Final Scheduled Distribution Date:
The Final Scheduled Distribution Date for each Class of
Certificates is the Distribution Date occurring in March
2025.
First Lien Mortgage Loan: With
respect to each Mortgage Loan, any mortgage loan secured by a first
lien Mortgage on the related Mortgaged Property.
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
– FFMLT Trust 2005-FFA, or such other address as Fitch may
hereafter furnish to the Depositor, the Servicer and the
Trustee.
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.
Freddie Mac Guides: The Freddie Mac
Seller’s & Servicer’s Guide and all amendments or
additions thereto.
Home Loan: A Mortgage Loan
categorized as “Home Loan” pursuant to Appendix E of
Standard & Poor’s Glossary.
Insurance Proceeds: With respect to
each Mortgage Loan, proceeds of insurance policies insuring the
Mortgage Loan or the related Mortgaged Property and any proceeds
from the Mortgage Pool Insurance Policy.
Interest Accrual Period: With
respect to each Class of Non-Delay Certificates and any
Distribution Date, the period commencing on the preceding
Distribution Date (or, for the initial Distribution Date, the
Closing Date) and ending on the day preceding the current
Distribution Date, and with respect to the Delay Certificates and
the REMIC I Regular Interests and any Distribution Date, the
calendar month preceding the month in which such Distribution Date
occurs. For purposes of computing interest accruals on each Class
of Non-Delay Certificates, each Interest Accrual Period has the
actual number of days in such period and each year is assumed to
have 360 days. For purposes of computing interest accruals on each
Class of Delay Certificates, each Interest Accrual Period has 30
days in such period and each year is assumed to have 360
days.
Interest Remittance Amount: With
respect to any Distribution, that portion of Available Funds
attributable to interest relating to the 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.
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
(including any proceeds under the Mortgage Pool Insurance Policy),
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.
Liquidated Mortgage Loan: With
respect to any Distribution Date, (i) a defaulted Mortgage Loan
(including any REO Property) which was liquidated in the calendar
month preceding the month of such Distribution Date and as to which
the Servicer has certified (in accordance with this Agreement) that
it has made a Final Recovery Determination and (ii) any Charged Off
Loan.
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; (iii) such
Mortgage Loan is removed from coverage under this Agreement by
reason of its being purchased, sold, transferred or replaced
pursuant to or as contemplated by this Agreement or (iv) such
Mortgage Loan becomes a Charged Off Loan pursuant to Section
3.15(b). 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,
including Insurance Proceeds (including any proceeds under the
Mortgage Pool Insurance Policy), 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 in each case, which
are remaining after, or not otherwise required to be applied to,
the satisfaction of any related First Lien Mortgage
Loan.
London Business Day: Any day on
which dealings in deposits of United States dollars are transacted
in the London interbank market.
Majority Class X
Certificateholder: The Holder or Holders of a majority of the
Percentage Interests in the Class X Certificates.
Marker Rate: With respect to the
Class X Certificates and any Distribution Date, a per annum rate
equal to two (2) times the weighted average of the REMIC I
Remittance Rate for each of REMIC I Regular Interest I-LTA1, REMIC
I Regular Interest I-LTA2A, REMIC I Regular Interest I-LTA2B, REMIC
I Regular I-LTM1, REMIC I Regular Interest I-LTM2, REMIC I Regular
I-LTM3, REMIC I Regular Interest I-LTM4, REMIC I Regular Interest
I-LTB1, REMIC I Regular Interest I-LTB2, REMIC I Regular Interest
I-LTB3, REMIC I Regular Interest I-LTB-4, REMIC I Regular Interest
I-LTB5 and REMIC I Regular Interest I-LTZZ, with the rate on each
such REMIC I Regular Interest (other than REMIC I Regular Interest
I-LTZZ) subject to a cap equal to the related Pass-Through Rate for
the Corresponding Certificate for the purpose of this calculation
for such Distribution Date and with the rate on REMIC I Regular
Interest I-LTZZ subject to a cap of zero for the purpose of this
calculation; provided however, each such cap for REMIC I Regular
Interest I-LTA1, REMIC I Regular Interest I-LTA2A, REMIC I Regular
Interest I-LTA2B and REMIC I Regular Interest I-LTM1 shall be
multiplied by a fraction the numerator of which is the actual
number of days in the related Interest Accrual Period and the
denominator of which is 30.
MERS Designated Mortgage Loan:
Mortgage Loans for which (a) the Responsible Party has designated
or will designate MERS as, and has taken or will take such action
as is necessary to cause MERS to be, the mortgagee of record, as
nominee for the
Responsible Party, in accordance
with MERS Procedure Manual and (b) the Responsible Party has
designated or will designate the Trust as the Investor on the
MERS® System.
MERS Procedure Manual: The MERS
Procedures Manual, as it may be amended, supplemented or otherwise
modified from time to time.
MERS® System: MERS mortgage
electronic registry system, as more particularly described in the
MERS Procedures Manual.
Maximum I-LTZZ Uncertificated
Interest Deferral Amount: With respect to any Distribution Date,
the excess of (i) accrued interest at the REMIC I Remittance Rate
applicable to REMIC I Regular Interest I-LTZZ for such Distribution
Date on a balance equal to the Uncertificated Balance of REMIC I
Regular Interest I-LTZZ minus the REMIC I Overcollateralization
Amount, in each case for such Distribution Date, over (ii)
Uncertificated Interest on REMIC I Regular Interest I-LTA1, REMIC I
Regular Interest I-LTA2A, REMIC I Regular Interest I-LTA2B, REMIC I
Regular Interest I-LTM1, REMIC I Regular Interest I-LTM2, REMIC I
Regular Interest I-LTM3, REMIC I Regular Interest I-LTM4, REMIC I
Regular Interest I-LTB1, REMIC I Regular Interest I-LTB2, REMIC I
Regular Interest I-LTB3, REMIC I Regular Interest I-LTB4 and REMIC
I Regular Interest I-LTB5 with the rate on each such REMIC I
Regular Interest subject to a cap equal to the related Pass-Through
Rate for the corresponding Certificate for the purpose of this
calculation for such Distribution Date; provided however, each such
cap for REMIC I Regular Interest I-LTA1, REMIC I Regular Interest
I-LTA2A, REMIC I Regular Interest I-LTA2B and REMIC I Regular
Interest I-LTM1 shall be multiplied by a fraction the numerator of
which is the actual number of days in the related Interest Accrual
Period and the denominator of which is 30.
Monthly Statement: The statement
made available to the Certificateholders pursuant to
Section 4.03.
Moody’s: Moody’s
Investors Service, Inc. and its successor 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 Servicer
and the Trustee.
Mortgage: The mortgage, deed of
trust or other instrument identified on the Mortgage Loan Schedule
as securing a Mortgage Note.
Mortgage File: The items pertaining
to a particular Mortgage Loan contained in either the Servicing
File or Custodial File.
Mortgage Interest Rate: The annual
rate of interest borne on a Mortgage Note with respect to each
Mortgage Loan.
Mortgage Loan: An individual
Mortgage Loan which is the subject of this Agreement, each Mortgage
Loan originally sold and subject to this Agreement being
identified
on the Mortgage Loan Schedule, which
Mortgage Loan includes, without limitation, the Mortgage File, the
Custodial File, the Servicing File, the Scheduled Payments,
Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds (including any proceeds under the Mortgage Pool
Insurance Policy), 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
Responsible Party 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) 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) a
code indicating the purpose of the loan (i.e., purchase, rate and
term refinance, equity take-out refinance); (16) a code indicating
the documentation style (i.e., full documentation, limited
documentation or stated income); (17) the loan credit
classification (as described in the Underwriting Guidelines); (18)
whether such Mortgage Loan provides for a Prepayment Premium; (19)
the Prepayment Premium period of such Mortgage Loan, if applicable;
(20) a description of the Prepayment Premium, if applicable; (21)
the Mortgage Interest Rate as of origination; (22) the credit risk
score (FICO score) at origination; (23) the date of origination;
(24) a code indicating whether the Mortgage Loan has been modified;
(25) the payment history; (26) the Due Date for the first Scheduled
Payment; (27) the original Scheduled Payment due; (28) with respect
to the related Mortgagor, the debt-to-income ratio; (29) the
Appraised Value of the Mortgaged Property; (30) the sales price of
the Mortgaged Property if the Mortgage Loan was originated in
connection with the purchase of the Mortgaged Property; (31) the
Mortgage Interest Rate calculation method (i.e., 30/360, simple
interest, other); (32) a code indicating whether the Mortgage Loan
is a Section 32 Mortgage Loan; (33) a code indicating whether the
Mortgage Loan is assumable; (34) a code indicating if a Mortgage
Loan is or has had a 30 Day Delinquency; (35) with respect to each
MERS Designated Mortgage Loan, the MERS identification number and
(36) the Original Purchase Date. With respect to the Mortgage Loans
in the aggregate: (1) the number of Mortgage Loans;
(2) the
current aggregate outstanding
principal balance of the Mortgage Loans; (3) the weighted
average Mortgage Interest Rate of the Mortgage Loans; and
(4) the weighted average maturity of the Mortgage
Loans.
Mortgage Note: The note or other
evidence of the indebtedness of a Mortgagor under a Mortgage Loan,
including all riders thereto.
Mortgage Pool Insurance Policy: The
mortgage pool insurance policy number R0146011 provided by the
Mortgage Pool Insurer for the Covered Loans, having an initial
amount of coverage equal to $28,461,345, and including any and all
related endorsements, a copy of which is attached hereto as Exhibit
P.
Mortgage Pool Insurance Trigger:
With respect to any date of determination, the satisfaction of the
Deductible (as defined in the Mortgage Pool Insurance Policy),
subject to the Maximum Aggregate Liability (as defined in the
Mortgage Pool Insurance Policy).
Mortgage Pool Insurer: Radian
Insurance Inc., or any successor thereto.
Mortgage Pool Insurer Fee: The
one-time up-front amount payable to the Mortgage Pool Insurer on or
prior to the Closing Date by the Co-Trustee in order to obtain
coverage provided under the Mortgage Pool Insurance
Policy.
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.
National City: National City Home
Loan Services, Inc., a Delaware corporation, and its successors in
interest.
Net Monthly Excess Cash Flow: For
any Distribution Date the amount remaining for distribution
pursuant to subsection 4.02(a)(iii) (before giving effect to
distributions pursuant to such subsection).
Net Prepayment Interest Shortfall:
For any Distribution Date, the amount by which the sum of the
Prepayment Interest Shortfalls exceeds the sum of the Compensating
Interest payments made with respect to such Distribution
Date.
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), each Mortgage Loan in foreclosure, all REO
Property and each Mortgage Loan for which the Mortgagor has filed
for bankruptcy.
Non-Delay Certificates: As specified
in the Preliminary Statement.
Nonrecoverable P&I Advance: Any
P&I Advance previously made or proposed to be made in respect
of a Mortgage Loan or REO Property that, in the good faith business
judgment of the Servicer, will not or, in the case of a proposed
P&I Advance, would not be ultimately recoverable from related
late payments, Insurance Proceeds (including any proceeds under the
Mortgage Pool Insurance Policy), Condemnation Proceeds or
Liquidation Proceeds on such Mortgage Loan or REO Property as
provided herein.
Nonrecoverable Servicing Advance:
Any Servicing Advances previously made or proposed to be made in
respect of a Mortgage Loan or REO Property, which, in the good
faith business judgment of the Servicer, will not or, in the case
of a proposed Servicing Advance, would not, be ultimately
recoverable from related Insurance Proceeds (including any proceeds
under the Mortgage Pool Insurance Policy), 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.
Notional Amount: With respect to the
Class X Certificates and any Distribution Date, the Uncertificated
Balance of the REMIC I Regular Interests for such Distribution
Date. As of the Closing Date, the Notional Amount of the Class X
Certificates is equal to $740,622,811.95.
Notional Balance: With respect to
the Class X Certificates for purposes solely of the face thereof,
the aggregate Stated Principal Balance of the Mortgage
Loans.
Offered Certificates: As specified
in the Preliminary Statement.
Officer’s Certificate: A
certificate signed by an officer of the Servicer with
responsibility for the servicing of the Mortgage Loans required to
be serviced by the Servicer and listed on a list delivered to the
Trustee pursuant to this Agreement.
Opinion of Counsel: A written
opinion of counsel, who may be in-house counsel for the Servicer or
a Subservicer, reasonably acceptable to the Trustee; provided, that
any Opinion of Counsel relating to (a) qualification of either
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 the Servicer of the Mortgage Loans, (ii) does
not have any material direct or indirect financial interest in the
Servicer of the Mortgage Loans or in an affiliate of the Servicer
and (iii) is not connected with the Servicer of the Mortgage
Loans as an officer, employee, director or person performing
similar functions.
Optional Termination Date: The date
on which the Terminating Entity, 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.
Original Purchase Date: December 1,
2004, December 29, 2004, or January 28, 2005, as
applicable.
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.
Notwithstanding the foregoing, on and after any Distribution Date
following the reduction of the aggregate Class Certificate Balance
of the Class A Certificates, Class M Certificates and Class B
Certificates to zero, the Overcollateralization Floor shall be
zero.
Overcollateralization Reduction
Amount: With respect to any Distribution Date, an amount equal to
the lesser of (a) the Excess Overcollateralized Amount and
(b) the Net Monthly Excess Cash Flow.
Ownership Interest: As to any
Residual Certificate, any ownership interest in such Certificate
including any interest in such Certificate as the Holder thereof
and any other interest therein, whether direct or indirect, legal
or beneficial.
P&I Advance: As to any Mortgage
Loan or REO Property, any advance made by the Servicer in respect
of any Remittance Date representing the aggregate of all payments
of principal and interest, net of the Servicing Fee, that were due
during the related Due Period on the Mortgage Loans and that were
delinquent on the related Remittance Date, plus certain amounts
representing assumed payments not covered by any current net income
on the Mortgaged Properties acquired by foreclosure or deed in lieu
of foreclosure as determined pursuant to
Section 4.01.
Par Value: The sum of (i) 100% of
the unpaid principal balance of each Mortgage Loan (other than in
respect of REO Property) plus accrued and unpaid interest thereon
at the applicable Mortgage Interest Rate, and (ii) the lesser of
(x) the appraised value of any REO Property as determined by the
higher of two appraisals completed by two independent appraisers
selected by the Majority Class X Certificateholder, at the expense
of the Majority Class X Certificateholder, plus accrued and unpaid
interest on the related Mortgage Loan at the applicable Mortgage
Interest Rates and (y) the unpaid principal balance of each
Mortgage Loan related to any REO Property, in each case plus
accrued and unpaid interest thereon at the applicable Mortgage
Interest Rate.
Pass-Through Margin: With respect to
each Class of LIBOR Certificates, the following percentages:
Class A-1, 0.200%; Class A-2A, 0.110%; Class A-2B,
0.270%; and Class M-1, 0.550%. On the first Distribution Date
after the Optional Termination Date, the Pass-Through Margins shall
increase to: Class A-1, 0.400%; Class A-2A, 0.220%;
Class A-2B, 0.540%; and Class M-1, 0.825%.
Pass-Through Rate: With respect to
the Class A-1, Class A-2A, Class A-2B and Class M-1 Certificates, a
rate per annum equal to the lesser of (i) LIBOR plus the related
Pass-Through Margin and (ii) the WAC Cap.
With respect to the Class M-2, Class
M-3, Class M-4, Class B-1, Class B-2, Class B-3, Class B-4 and
Class B-5 Certificates, a rate per annum equal to (a) on or prior
to the first possible Optional Termination Date, 5.475%, 5.517%,
5.614%, 5.961%, 6.110%, 6.507%, 6.000% and 6.000%, respectively or
(b) after the first possible Optional Termination Date, 5.975%,
6.017%, 6.114%, 6.461%, 6.610%, 7.007%, 6.500% and 6.500%,
respectively.
With respect to the Class X
Certificates and any Distribution Date, a rate per annum equal to
the percentage equivalent of a fraction, the numerator of which is
the sum of the amounts calculated pursuant to clauses (a) through
(n) below, and the denominator of which is the aggregate
Uncertificated Balances of REMIC I Regular Interest I-LTAA, REMIC I
Regular Interest I-LTA1, REMIC I Regular Interest I-LTA2A, REMIC I
Regular Interest I-LTA2B, REMIC I Regular Interest I-LTM1, REMIC I
Regular Interest I-LTM2, REMIC I Regular Interest I-LTM3, REMIC I
Regular Interest I-LTM4, REMIC I Regular Interest I-LTB1, REMIC I
Regular Interest I-LTB2, REMIC I Regular Interest I-LTB3, REMIC I
Regular Interest I-LTB4, REMIC I Regular Interest I-LTB5 and REMIC
I Regular Interest I-LTZZ. For purposes of calculating the
Pass-Through Rate for the Class X Certificates, the numerator is
equal to the sum of the following components:
(a) the
REMIC I Remittance Rate for REMIC I Regular Interest I-LTAA minus
the Marker Rate, applied to an amount equal to the Uncertificated
Balance of REMIC I Regular Interest I-LTAA;
(b) the
REMIC I Remittance Rate for REMIC I Regular Interest I-LTA1 minus
the Marker Rate, applied to an amount equal to the Uncertificated
Balance of REMIC I Regular Interest I-LTA1;
(c) the
REMIC I Remittance Rate for REMIC I Regular Interest I-LTA2A minus
the Marker Rate, applied to an amount equal to the Uncertificated
Balance of REMIC I Regular Interest I-LTA2A;
(d) the
REMIC I Remittance Rate for REMIC I Regular Interest I-LTA2B minus
the Marker Rate, applied to an amount equal to the Uncertificated
Balance of REMIC I Regular Interest I-LTA2B;
(e) the
REMIC I Remittance Rate for REMIC I Regular Interest I-LTM1 minus
the Marker Rate, applied to an amount equal to the Uncertificated
Balance of REMIC I Regular Interest I-LTM1;
(f) the
REMIC I Remittance Rate for REMIC I Regular Interest I-LTM2 minus
the Marker Rate, applied to an amount equal to the Uncertificated
Balance of REMIC I Regular Interest I-LTM2;
(g) the
REMIC I Remittance Rate for REMIC I Regular Interest I-LTM3 minus
the Marker Rate, applied to an amount equal to the Uncertificated
Balance of REMIC I Regular Interest I-LTM3;
(h) the
REMIC I Remittance Rate for REMIC I Regular Interest I-LTM4 minus
the Marker Rate, applied to an amount equal to the Uncertificated
Balance of REMIC I Regular Interest I-LTM4;
(i) the
REMIC I Remittance Rate for REMIC I Regular Interest I-LTB1 minus
the Marker Rate, applied to an amount equal to the Uncertificated
Balance of REMIC I Regular Interest I-LTB1;
(j) the
REMIC I Remittance Rate for REMIC I Regular Interest I-LTB2 minus
the Marker Rate, applied to an amount equal to the Uncertificated
Balance of REMIC I Regular Interest I-LTB2;
(k) the
REMIC I Remittance Rate for REMIC I Regular Interest I-LTB3 minus
the Marker Rate, applied to an amount equal to the Uncertificated
Balance of REMIC I Regular Interest I-LTB3;
(l) the
REMIC I Remittance Rate for REMIC I Regular Interest I-LTB4 minus
the Marker Rate, applied to an amount equal to the Uncertificated
Balance of REMIC I Regular Interest I-LTB4;
(m) the
REMIC I Remittance Rate for REMIC I Regular Interest I-LTB5 minus
the Marker Rate, applied to an amount equal to the Uncertificated
Balance of REMIC I Regular Interest I-LTB5; and
(n) the
REMIC I Remittance Rate for REMIC I Regular Interest I-LTZZ minus
the Marker Rate, applied to an amount equal to the Uncertificated
Balance of REMIC I Regular Interest I-LTZZ.
Percentage Interest: As to any
Certificate, the percentage interest evidenced thereby in
distributions required to be made on the related Class, such
percentage interest being set forth on the face thereof or equal to
the percentage obtained by dividing the Denomination of such
Certificate by the aggregate of the Denominations of all
Certificates of the same Class.
Permitted Investments: Any one or
more of the following obligations or securities acquired at a
purchase price of not greater than par, regardless of whether
issued by the Servicer, the Trustee or any of their respective
Affiliates:
(i) direct
obligations of, or obligations fully guaranteed as to timely
payment of principal and interest by, the United States or any
agency or instrumentality thereof, provided such obligations are
backed by the full faith and credit of the United
States;
(ii) demand
and time deposits in, certificates of deposit of, or bankers’
acceptances (which shall each have an original maturity of not more
than 90 days and, in the case of bankers’ acceptances, shall
in no event have an original maturity of more than 365 days or a
remaining maturity of more than 30 days) denominated in United
States dollars and issued by any Depository Institution and rated
P-1 by Moody’s, F-1 by Fitch and A-1+ by S&P (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 either
Trust REMIC to fail to qualify as a REMIC at any time that the
Certificates are outstanding. The terms “United
States,” “State” and “international
organization” shall have the meanings set forth in
Section 7701 of the Code or successor provisions. A
corporation will not be treated as an instrumentality of the United
States or of any State or political subdivision thereof for these
purposes if all of its activities are subject to tax and, with the
exception of the Freddie Mac, a majority of its board of directors
is not selected by such government unit.
Person: Any individual, corporation,
partnership, joint venture, association, limited liability company,
joint-stock company, trust, unincorporated organization or
government, or any agency or political subdivision
thereof.
Physical Certificates: As specified
in the Preliminary Statement.
Pool Stated Principal Balance: As to
any Distribution Date, the aggregate of the Stated Principal
Balances of the Mortgage Loans for such Distribution Date that were
Outstanding Mortgage Loans on the Due Date in the related Due
Period.
Prepayment Interest Shortfall: With
respect to any Remittance Date, the sum of, for each Mortgage Loan
that was, during the related Prepayment Period, the subject of
a
Principal Prepayment that was
applied by the Servicer to reduce the outstanding principal balance
of such Mortgage Loan on a date preceding the Due Date in the
succeding 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
lesser of (i) 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 and (ii) 30.
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 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 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 of principal on a Mortgage Loan which is received
in advance of its scheduled Due Date, excluding any Prepayment
Premium and which is not accompanied by an amount of interest
representing scheduled interest due on any date or dates in any
month or months subsequent to the month of prepayment.
Principal Prepayment in Full: Any
Principal Prepayment made by a Mortgagor of the entire principal
balance of a Mortgage Loan.
Principal Remittance Amount: With
respect to any Distribution Date, the amount equal to the sum of
the following amounts (without duplication) with respect to the
related Due Period: (i) each scheduled payment of principal on
a Mortgage Loan due during such Due Period and received by the
Servicer on or prior to the related Determination Date or advanced
by the Servicer 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 Servicer 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
Determination Date through the Determination 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, (vi) any proceeds
under the Mortgage Pool Insurance Policy and (vii) 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 July 14, 2005, relating to the Offered
Certificates.
PTCE 95-60: As defined in
Section 5.02(b).
PUD: A planned unit
development.
Purchase Agreement: The Flow
Mortgage Loan Purchase and Warranties Agreement, dated as of
February 27, 2004, by and between the Responsible Party and the
Purchaser, as amended by Amendment No. 1 to Purchase Agreement,
dated November 29, 2004, by and between the Responsible Party and
the Purchaser, solely insofar as such agreement relates to the
Mortgage Loans.
Purchaser: Goldman Sachs Mortgage
Company, a New York limited partnership, and its successors in
interest, as purchaser of the Mortgage Loans under the Purchase
Agreement.
Radian Guidelines: The current 2nd
lien servicing guidelines of the Mortgage Pool Insurer, referred to
in the Mortgage Pool Insurance Policy.
Rating Agency: Each of the Rating
Agencies specified in the Preliminary Statement. If such
organization or a successor is no longer in existence,
“Rating Agency” shall be such nationally recognized
statistical rating organization, or other comparable Person, as is
designated by the Depositor, notice of which designation shall be
given to the Trustee. References herein to a given rating or rating
category of a Rating Agency shall mean such rating category without
giving effect to any modifiers. For purposes of
Section 10.05(b), the addresses for notices to each Rating
Agency shall be the address specified therefor in the definition
corresponding to the name of such Rating Agency, or such other
address as either such Rating Agency may hereafter furnish to the
Depositor and the Servicer.
Realized Losses: With respect to any
date of determination and any Liquidated Mortgage Loan, the amount,
if any, by which (a) the unpaid principal balance of such
Liquidated Mortgage Loan together with accrued and unpaid interest
thereon exceeds (b) the Liquidation Proceeds (including any
proceeds under the Mortgage Pool Insurance Policy) with respect
thereto net of the expenses incurred by the Servicer in connection
with the liquidation of such Liquidated Mortgage Loan and net of
the amount of unreimbursed Servicing Advances with respect to such
Liquidated Mortgage Loan. Any Charged Off Loan will give rise to a
Realized Loss (calculated as if clause (b) of the previous sentence
is equal to zero) at the time it is charged off, as described in
Section 3.15(b) hereof.
Record Date: With respect to any
Distribution Date, the close of business on the last day of the
related Interest Accrual Period; provided, however, that for any
Certificate issued in definitive form, the Record Date shall be the
close of business on the last Business Day of the month preceding
the month in which such applicable Distribution Date
occurs.
Reference Bank: As defined in
Section 4.04.
Regular Certificates: As specified
in the Preliminary Statement.
Released Loan: Any Charged Off Loan
that is released by the Servicer to the Class X-1 Certificateholder
pursuant to Section 3.15(b). Any Released Loan will no longer be an
asset of any REMIC or the Trust Fund.
Relief Act Interest Shortfall: With
respect to any Distribution Date and any Mortgage Loan, any
reduction in the amount of interest or principal 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 I: As specified in the
Preliminary Statement.
REMIC I Interest Loss Allocation
Amount: With respect to any Distribution Date, an amount equal to
(a) the product of (i) the aggregate Stated Principal Balance of
the Mortgage Loans and REO Properties then outstanding and (ii) the
REMIC I Remittance Rate for REMIC I Regular Interest I-LTAA minus
the Marker Rate, divided by (b) 12.
REMIC I Overcollateralization
Amount: With respect to any date of determination, (i) 1.00% of the
aggregate Uncertificated Balances of the REMIC I Regular Interests
minus (ii) the aggregate of the Uncertificated Balances of REMIC I
Regular Interest I-LTA1, REMIC I Regular Interest I-LTA2A, REMIC I
Regular Interest I-LTA2B, REMIC I Regular Interest I-LTM1, REMIC I
Regular Interest I-LTM2, REMIC I Regular Interest I-LTM3, REMIC I
Regular Interest I-LTM4, REMIC I Regular Interest I-LTB1, REMIC I
Regular Interest I-LTB2, REMIC I Regular Interest I-LTB3, REMIC I
Regular Interest I-LTB4 and REMIC I Regular Interest I-LTB5, in
each case as of such date of determination.
REMIC I Principal Loss Allocation
Amount: With respect to any Distribution Date, an amount equal to
(a) the product of (i) 1.00% of the aggregate Stated Principal
Balance of the Mortgage Loans and REO Properties then outstanding
and (ii) 1 minus a fraction, the numerator of which is two times
the aggregate of the Uncertificated Balances of REMIC I Regular
Interest I-LTA1, REMIC I Regular Interest I-LTA2A, REMIC I Regular
Interest I-LTA2B, REMIC I Regular Interest I-LTM1, REMIC I Regular
Interest I-LTM2, REMIC I Regular Interest I-LTM3, REMIC I Regular
Interest I-LTM4, REMIC I Regular Interest I-LTB1, REMIC I Regular
Interest I-LTB2, REMIC I Regular Interest I-LTB3, REMIC I Regular
Interest I-LTB4 and REMIC I Regular Interest I-LTB5 and the
denominator of which is the aggregate of the Uncertificated
Balances of REMIC I Regular Interest I-LTA1, REMIC I Regular
Interest I-LTA2A, REMIC I Regular Interest I-LTA2B, REMIC I Regular
Interest I-LTM1, REMIC I Regular Interest I-LTM2, REMIC I Regular
Interest I-LTM3, REMIC I Regular Interest I-LTM4, REMIC I Regular
Interest I-LTB1, REMIC I Regular Interest I-LTB2, REMIC I Regular
Interest I-LTB3, REMIC I Regular Interest I-LTB4, REMIC I Regular
Interest I-LTB5 and REMIC I Regular Interest I-LTZZ.
REMIC I Regular Interest: Any of the
separate non-certificated beneficial ownership interests in REMIC I
issued hereunder and designated as a “regular interest”
in REMIC I. Each REMIC I Regular Interest shall accrue interest at
the related REMIC I Remittance Rate in effect from time to time,
and shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its
initial Uncertificated Balance as set forth in the Preliminary
Statement hereto. The designations for the respective REMIC I
Regular Interests are set forth in the Preliminary Statement
hereto.
REMIC I Regular Interest I-LTAA: One
of the separate non-certificated beneficial ownership interests in
REMIC I issued hereunder and designated as a Regular Interest in
REMIC I. REMIC I Regular Interest I-LTAA shall accrue interest at
the related REMIC I Remittance Rate in effect from time to time,
and shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its
initial Uncertificated Balance as set forth in the Preliminary
Statement hereto.
REMIC I Regular Interest I-LTA1: One
of the separate non-certificated beneficial ownership interests in
REMIC I issued hereunder and designated as a Regular Interest in
REMIC I. REMIC I Regular Interest I-LTA1 shall accrue interest at
the related REMIC I Remittance Rate in effect from time to time,
and shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its
initial Uncertificated Balance as set forth in the Preliminary
Statement hereto.
REMIC I Regular Interest I-LTA2A:
One of the separate non-certificated beneficial ownership interests
in REMIC I issued hereunder and designated as a Regular Interest in
REMIC I. REMIC I Regular Interest I-LTA2A shall accrue interest at
the related REMIC I Remittance Rate in effect from time to time,
and shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its
initial Uncertificated Balance as set forth in the Preliminary
Statement hereto.
REMIC I Regular Interest I-LTA2B:
One of the separate non-certificated beneficial ownership interests
in REMIC I issued hereunder and designated as a Regular Interest in
REMIC I. REMIC I Regular Interest I-LTA2B shall accrue interest at
the related REMIC I Remittance Rate in effect from time to time,
and shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its
initial Uncertificated Balance as set forth in the Preliminary
Statement hereto.
REMIC I Regular Interest I-LTM1: One
of the separate non-certificated beneficial ownership interests in
REMIC I issued hereunder and designated as a Regular Interest in
REMIC I. REMIC I Regular Interest I-LTM1 shall accrue interest at
the related REMIC I Remittance Rate in effect from time to time,
and shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its
initial Uncertificated Balance as set forth in the Preliminary
Statement hereto.
REMIC I Regular Interest I-LTM2: One
of the separate non-certificated beneficial ownership interests in
REMIC I issued hereunder and designated as a Regular Interest in
REMIC I. REMIC I Regular Interest I-LTM2 shall accrue interest at
the related REMIC I Remittance Rate in effect from time to time,
and shall be entitled to distributions of principal,
subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated
Balance as set forth in the Preliminary Statement
hereto.
REMIC I Regular Interest I-LTM3: One
of the separate non-certificated beneficial ownership interests in
REMIC I issued hereunder and designated as a Regular Interest in
REMIC I. REMIC I Regular Interest I-LTM3 shall accrue interest at
the related REMIC I Remittance Rate in effect from time to time,
and shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its
initial Uncertificated Balance as set forth in the Preliminary
Statement hereto.
REMIC I Regular Interest I-LTM4: One
of the separate non-certificated beneficial ownership interests in
REMIC I issued hereunder and designated as a Regular Interest in
REMIC I. REMIC I Regular Interest I-LTM4 shall accrue interest at
the related REMIC I Remittance Rate in effect from time to time,
and shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its
initial Uncertificated Balance as set forth in the Preliminary
Statement hereto.
REMIC I Regular Interest I-LTB1: One
of the separate non-certificated beneficial ownership interests in
REMIC I issued hereunder and designated as a Regular Interest in
REMIC I. REMIC I Regular Interest I-LTB1 shall accrue interest at
the related REMIC I Remittance Rate in effect from time to time,
and shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its
initial Uncertificated Balance as set forth in the Preliminary
Statement hereto.
REMIC I Regular Interest I-LTB2: One
of the separate non-certificated beneficial ownership interests in
REMIC I issued hereunder and designated as a Regular Interest in
REMIC I. REMIC I Regular Interest I-LTB2 shall accrue interest at
the related REMIC I Remittance Rate in effect from time to time,
and shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its
initial Uncertificated Balance as set forth in the Preliminary
Statement hereto.
REMIC I Regular Interest I-LTB3: One
of the separate non-certificated beneficial ownership interests in
REMIC I issued hereunder and designated as a Regular Interest in
REMIC I. REMIC I Regular Interest I-LTB3 shall accrue interest at
the related REMIC I Remittance Rate in effect from time to time,
and shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its
initial Uncertificated Balance as set forth in the Preliminary
Statement hereto.
REMIC I Regular Interest I-LTB4: One
of the separate non-certificated beneficial ownership interests in
REMIC I issued hereunder and designated as a Regular Interest in
REMIC I. REMIC I Regular Interest I-LTB4 shall accrue interest at
the related REMIC I Remittance Rate in effect from time to time,
and shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its
initial Uncertificated Balance as set forth in the Preliminary
Statement hereto.
REMIC I Regular Interest I-LTB5: One
of the separate non-certificated beneficial ownership interests in
REMIC I issued hereunder and designated as a Regular
Interest
in REMIC I. REMIC I Regular Interest
I-LTB5 shall accrue interest at the related REMIC I Remittance Rate
in effect from time to time, and shall be entitled to distributions
of principal, subject to the terms and conditions hereof, in an
aggregate amount equal to its initial Uncertificated Balance as set
forth in the Preliminary Statement hereto.
REMIC I Regular Interest I-LTZZ: One
of the separate non-certificated beneficial ownership interests in
REMIC I issued hereunder and designated as a Regular Interest in
REMIC I. REMIC I Regular Interest I-LTZZ shall accrue interest at
the related REMIC I Remittance Rate in effect from time to time,
and shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its
initial Uncertificated Balance as set forth in the Preliminary
Statement hereto.
REMIC I Remittance Rate: With
respect to each REMIC I Regular Interest, a per annum rate equal to
(i) the weighted average of the Adjusted Net Mortgage Interest
Rates then in effect on the beginning of the related Due Period on
the Mortgage Loans.
REMIC I Required
Overcollateralization Amount: 1% of the Overcollateralization
Floor.
REMIC II: The segregated pool of
assets consisting of all of the REMIC I Regular Interests conveyed
in trust to the Trustee, for the benefit of the REMIC II
Certificateholders pursuant to Section 2.07, and all amounts
deposited therein, with respect to which a separate REMIC election
is to be made.
REMIC II Certificate: Any Regular
Certificate or Class R-2 Certificate.
REMIC II Certificateholder: The
Holder of any REMIC II Certificate.
REMIC Opinion: As defined in Section
9.03.
REMIC Provisions: Provisions of the
federal income tax law relating to real estate mortgage investment
conduits, which appear at Sections 860A through 860G of
Subchapter M of Chapter 1 of the Code, and related provisions, and
regulations promulgated thereunder, as the foregoing may be in
effect from time to time as well as provisions of applicable state
laws.
Remittance Date: With respect to any
Distribution Date, no later than 1:00 PM, New York Time on the
Business Day immediately preceding such Distribution
Date.
REO Disposition: The final sale by
the Servicer of any REO Property.
REO Imputed Interest: As to any REO
Property, for any period, an amount equivalent to interest (at the
Mortgage Interest Rate net of the Servicing Fee Rate that would
have been applicable to the related Mortgage Loan had it been
outstanding) on the unpaid principal balance of the Mortgage Loan
as of the date of acquisition thereof (as such balance is reduced
pursuant to Section 3.15 by any income from the REO Property
treated as a recovery of principal).
REO Property: A Mortgaged Property
acquired by the Trust Fund through foreclosure or deed-in-lieu of
foreclosure in connection with a defaulted Mortgage
Loan.
Reporting Date: The 18th day of each
calendar month or the immediately following Business Day if the 18
th is not a Business Day.
Repurchase Price: With respect to
any Mortgage Loan, (a) 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 and (iv) all expenses
incurred by the Servicer, the Trust or the Trustee, as the case may
be, in respect of a breach or defect, including, without
limitation, (A) expenses arising out of the Servicer’s or
Trustee’s, as the case may be, enforcement of the
Purchaser’s repurchase obligation, to the extent not included
in clause (iii), and (B) any costs and damages incurred by the
Trust in connection with any violation by such Mortgage Loan of any
predatory lending law or abusive lending law, and (b) in the case
of any Mortgage Loan repurchased by the Responsible Party, the
“Repurchase Price” as defined in the Purchase
Agreement.
Request for Release: The Request for
Release submitted by the Servicer to the Trustee, substantially in
the form of Exhibit J.
Residual Certificates: As specified
in the Preliminary Statement.
Residual Interest: The sole class of
“residual interests” in a REMIC within the meaning of
Section 860G(a)(2) of the Code.
Responsible Officer: When used with
respect to the Trustee, any vice president, any assistant vice
president, any assistant secretary, any assistant treasurer, any
associate or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above
designated officers who at such time shall be officers to whom,
with respect to a particular matter, such matter is referred
because of such officer’s knowledge of and familiarity with
the particular subject and who shall have direct responsibility for
the administration of this Agreement.
Responsible Party: First Franklin
Financial Corporation, a Delaware corporation, and its successors
in interest.
Responsible Party Agreements: The
Purchase Agreement and the Assignment and Recognition Agreement, as
the case may be, copies of which are attached hereto as Exhibit
R.
Rule 144A Letter: As defined in
Section 5.02(b).
Scheduled Payment: The scheduled
monthly payment on a Mortgage Loan due on any Due Date allocable to
principal and/or interest on such Mortgage Loan which,
unless
otherwise specified herein, shall
give effect to any related Debt Service Reduction and any Deficient
Valuation that affects the amount of the monthly payment due on
such Mortgage Loan.
Securities Act: The Securities Act
of 1933, as amended.
Senior Enhancement Percentage: With
respect to any Distribution Date, the percentage obtained by
dividing (x) the sum of (i) the aggregate Class
Certificate Balance of the Subordinated Certificates and
(ii) the Overcollateralized Amount (in each case after taking
into account the distributions of the Principal Distribution Amount
for such Distribution Date) by (y) the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution
Date.
Senior Specified Enhancement
Percentage: As of any date of determination, 62.50%.
Servicer: National City, or any
successor servicer appointed as herein provided, in its capacity as
Servicer hereunder.
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
Servicer in the performance of its servicing obligations in
connection with a default, delinquency or other unanticipated
event, including, but not limited to, the cost of (i) the
preservation, restoration, inspection and protection of a Mortgaged
Property, (ii) any enforcement or judicial proceedings,
including foreclosures and litigation, in respect of a particular
Mortgage Loan, (iii) the management (including reasonable fees
in connection therewith) and liquidation of any REO Property and
(iv) the performance of its obligations under
Sections 3.01, 3.09, 3.13 and 3.15 (including the cost of
obtaining any broker’s price opinion pursuant thereto).
Servicing Advances also include any reasonable
“out-of-pocket” costs and expenses (including legal
fees) incurred by the Servicer in connection with executing and
recording instruments of satisfaction, deeds of reconveyance or
Assignments of Mortgage in connection with any satisfaction or
foreclosures in respect of any Mortgage Loan to the extent not
recovered from the Mortgagor or otherwise payable under this
Agreement and obtaining or correcting any legal documentation
required to be included in the Mortgage Files and necessary for the
Servicer to perform its obligations under this Agreement. The
Servicer shall not be required to make any Nonrecoverable Servicing
Advances.
Servicing Fee: With respect to each
Mortgage Loan and any Distribution Date, an amount equal to the
product of (i) one-twelfth of the Servicing Fee Rate and
(ii) the applicable Stated Principal Balance of such Mortgage
Loan as of the first day of the calendar month preceding the month
in which such Distribution Date occurs. Such fee shall be payable
monthly, and shall be pro rated for any portion of a month during
which the Mortgage Loan is serviced by the Servicer under this
Agreement. The Servicing Fee is payable solely from the interest
portion (including recoveries with respect to interest from
Liquidation Proceeds, Insurance Proceeds (including any proceeds
under the Mortgage Pool Insurance Policy), Condemnation Proceeds
and proceeds received with respect to REO Properties, to the extent
permitted by Section 3.11)
of such Scheduled Payment collected
by the Servicer or as otherwise provided under
Section 3.11.
Servicing Fee Rate: With respect to
each Mortgage Loan, 0.50% per annum.
Servicing File: With respect to each
Mortgage Loan, the file retained by the Servicer consisting of
originals or copies of all documents in the Mortgage File which are
not delivered to the Trustee in the Custodial File and copies of
the Mortgage Loan Documents set forth in Exhibit K
hereto.
Servicing Officer: Any officer of
the Servicer involved in, or responsible for, the administration
and servicing of the Mortgage Loans whose name and facsimile
signature appear on a list of servicing officers furnished to the
Trustee by the Servicer on the Closing Date pursuant to this
Agreement, as such list may from time to time be
amended.
Servicing Transfer Costs: All
reasonable out-of-pocket costs and expenses incurred by the Trustee
in connection with the transfer of servicing from a terminated
Servicer, including, without limitation, any such costs or expenses
associated with the complete transfer of all servicing data and the
completion, correction or manipulation of such servicing data as
may be required by the Trustee to correct any errors or
insufficiencies in the servicing data or otherwise to enable the
Trustee (or any successor Servicer appointed pursuant to Section
7.02) to service the Mortgage Loans properly and
effectively.
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 4.05% of the Cut-off
Date Pool Principal Balance. On and after the Stepdown Date, an
amount equal to 8.10% of the aggregate Stated Principal Balance of
the Mortgage Loans for such Distribution Date, subject, until the
Class Certificate Balance of each Class of Offered Certificates and
the Class B-4 Certificates and Class B-5 Certificates has been
reduced to zero, to a minimum amount equal to the
Overcollateralization Floor; provided, however, that if, on any
Distribution Date, a Trigger Event has occurred, the Specified
Overcollateralized Amount shall not be reduced to the applicable
percentage of the then current aggregate Stated Principal Balance
of the Mortgage Loans until the Distribution Date on which a
Trigger Event is no longer occurring.
Standard & Poor’s:
Standard & Poor’s Ratings Services, a division of The
McGraw-Hill Companies, Inc., and its successors in interest. If
Standard & Poor’s is designated as a Rating Agency in the
Preliminary Statement, for purposes of Section 10.05(b) the
address for notices to Standard & Poor’s shall be
Standard & Poor’s, 55 Water Street, New York, New York
10041, Attention: Residential Mortgage Surveillance Group –
FFMLT Trust 2005-FFA, or
such other address as Standard &
Poor’s may hereafter furnish to the Depositor, the Servicer
and the Trustee.
Standard & Poor’s
Glossary: Version 5.6 of the Standard & Poor’s
LEVELS® Glossary.
Start-up Day: As defined in Section
2.06.
Stated Principal Balance: As to each
Mortgage Loan and as of any date of determination, (i) the
principal balance of the Mortgage Loan at the Cut-off Date after
giving effect to payments of principal due on or before such date,
minus (ii) all amounts previously remitted to the Trustee with
respect to the related Mortgage Loan representing payments or
recoveries of principal including advances in respect of scheduled
payments of principal. For purposes of any Distribution Date, the
Stated Principal Balance of any Mortgage Loan will give effect to
any scheduled payments of principal received by the Servicer on or
prior to the related Determination Date or advanced by the Servicer
for the related Remittance Date and any unscheduled principal
payments and other unscheduled principal collections received
during the related Prepayment Period, and the Stated Principal
Balance of any Mortgage Loan that has prepaid in full or has become
a Liquidated Mortgage Loan during the related Prepayment Period
shall be zero.
Stepdown Date: The earlier to occur
of (a) the date on which the aggregate Class Certificate
Balance of the Class A Certificates has been reduced to zero,
and (b) the later to occur of (i) the Distribution Date
in August 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 and, in the case of a Charged Off
Loan, prior to such Liquidated Mortgage Loan becoming a Released
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: As defined
in the Assignment and Recognition Agreement.
Substitution Adjustment Amount: Any
amount to be paid in connection with a Substitute Mortgage Loan
pursuant to the third full paragraph of Section 9 of the Assignment
and Recognition Agreement, and any additional amounts required to
be paid by the Responsible Party or Purchaser in connection with
such a substitution.
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).
Terminating Entity: The Person that
exercises a Terminating Purchase pursuant to Section 9.01(a)
hereof.
Terminating Purchase: The purchase
of the Mortgage Loans and all other property of the Trust Fund
pursuant to Section 9.01(a) hereof.
Termination Price: The price paid by
the Terminating Entity for the Mortgage Loans and all other
property of the Trust Fund pursuant to Section 9.01(a)
hereof.
30 Day Delinquency: The failure of
the Mortgagor to make any Scheduled Payment due under the Mortgage
Note on a Due Date, which failure continues unremedied for a period
of one month after the following Due Date.
Total Monthly Excess Spread: As to
any Distribution Date, an amount equal to the excess if any, of
(i) the interest collected on the Mortgage Loans received by
the Servicer on or prior to the related Determination Date or
advanced by the Servicer for the related Remittance Date (net of
Expense Fees) over (ii) the sum of amounts payable to the
Offered Certificates and the Class B-4 Certificates and Class B-5
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 14.50% of the Senior
Enhancement Percentage as of the last day of the prior Due Period
or (ii) the quotient (expressed as a percentage) of
(x) the sum of (1) the aggregate amount of Realized Losses
incurred since the Cut-off Date through the last day of the related
Prepayment Period and (2) the amount by which the total available
coverage under the Mortgage Pool Insurance Policy has been reduced
as of such Distribution Date 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
|
|
August 2007 through July 2008
|
2.750% for the first month, plus an additional
1/12th of 3.400% for each month thereafter (e.g., approximately
3.033% in September 2007)
|
|
August 2008 through July 2009
|
6.150% for the first month, plus an additional
1/12th of 3.350% for each month thereafter (e.g., approximately
6.429% in September 2008)
|
|
August 2009 through July 2010
|
9.500% for the first month, plus an additional
1/12th of 1.000% for each month thereafter (e.g., approximately
9.583% in September 2009)
|
|
August 2010 through July 2011
|
10.500% for the first month, plus an additional
1/12th of 0.500% for each month thereafter (e.g., approximately
10.542% in September 2010)
|
|
August 2011 and thereafter
|
11.000%
|
|
|
|
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 Mortgage Pool Insurance Policy; (v) the Trust’s
rights under the Responsible Party Agreements; (vi) the
Depositor’s rights under the Representations and Warranties
Agreement; and (vii) all proceeds of the conversion, voluntary
or involuntary, of any of the foregoing.
Trust REMIC: Either REMIC I or REMIC
II, 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, 0.0035% 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.
Uncertificated Balance: The amount
of the REMIC I Regular Interests outstanding as of any date of
determination. As of the Closing Date, the Uncertificated Balance
of each REMIC I Regular Interest shall equal the amount set forth
in the Preliminary Statement hereto as its initial uncertificated
balance. On each Distribution Date, the Uncertificated Balance of
the REMIC I Regular Interest shall be reduced by all distributions
of principal made on such REMIC I Regular Interest on such
Distribution Date pursuant to Section 4.06 and, if and to the
extent necessary and appropriate, shall be further reduced on such
Distribution Date by Realized Losses as provided in Section 4.05
and the Uncertificated Balance of REMIC I Regular Interest I-LTZZ
shall be increased by interest deferrals as provided in Section
4.06. The Uncertificated Balance of each REMIC I Regular Interest
shall never be less than zero.
Uncertificated Interest: With
respect to any REMIC I Regular Interest for any Distribution Date,
one month’s interest at the REMIC I Remittance Rate
applicable to such REMIC I Regular Interest for such Distribution
Date, accrued on the Uncertificated Balance thereof immediately
prior to such Distribution Date. Uncertificated Interest in respect
of the REMIC I Regular Interests shall accrue on the basis of a
360-day year consisting of twelve 30-day months. Uncertificated
Interest with respect to each Distribution Date, as to any REMIC I
Regular Interest, shall be reduced by an amount equal to the sum of
(a) the aggregate Prepayment Interest Shortfall, if any, for such
Distribution Date to the extent not covered by payments pursuant to
Section 3.25 of this Agreement and (b) the aggregate amount of any
Relief Act Interest Shortfall, if any allocated, in each case, to
such REMIC I Regular Interest pursuant to Section 4.02. In
addition, Uncertificated Interest with respect to each Distribution
Date, as to any Uncertificated REMIC Regular Interest, shall be
reduced by Realized Losses, if any, allocated to such
Uncertificated REMIC Regular Interest pursuant to Section
4.05.
Underwriters’ Exemption: Any
exemption listed in footnote 1 of, and amended by, Prohibited
Transaction Exemption 2002-41, 67 Fed. Reg. 54487 (2002), or any
successor exemption.
Underwriting Guidelines: The
underwriting guidelines attached to the Purchase
Agreement.
Unpaid Interest Amounts: As of any
Distribution Date and any Class of Certificates, the sum of
(a) the portion of the Accrued Certificate Interest
Distribution Amount from prior Distribution Dates remaining unpaid
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).
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 (other than the
Class R-1, Class R-2 and Class X-1 Certificates) in proportion to
the Certificate Balances of their respective Certificates on such
date. The Class R-1, Class R-2 and Class X-1 Certificates shall
have no Voting Rights.
WAC Cap: With respect to the
Mortgage Loans as of any Distribution Date, a per annum rate equal
to (i) the weighted average of the Adjusted Net Mortgage
Interest Rates then in effect on the beginning of the related Due
Period on the Mortgage Loans and (ii) with respect to each
Class of LIBOR Certificates, multiplied by a fraction, the
numerator of which is 30 and the denominator of which is the actual
number of days in the Interest Accrual Period related to such
Distribution Date. For federal income tax purposes, the equivalent
of the foregoing shall be expressed as the weighted average of the
REMIC I Remittance Rates on each REMIC I Regular Interest, weighted
on the basis of the Uncertificated Balance of each such REMIC I
Regular Interest.
ARTICLE II
CONVEYANCE OF MORTGAGE
LOANS;
REPRESENTATIONS AND
WARRANTIES
Section
2.01 Conveyance of Mortgage
Loans . (a) The Depositor, concurrently with the
execution and delivery hereof, hereby sells, transfers, assigns,
sets over and otherwise conveys to the Trustee for the benefit of
the Certificateholders, without recourse, all the right, title and
interest of the Depositor in and to the Trust Fund, and the
Trustee, on behalf of the Trust, hereby accepts the Trust Fund. In
addition, on the Closing Date, the Co-Trustee shall pay the
Mortgage Pool Insurer Fee to the Mortgage Pool Insurer, to the
extent of funds on deposit in the Distribution Account, and the
Depositor shall cause the Mortgage Pool Insurer to deliver the
Mortgage Pool Insurance Policy to the Co-Trustee.
(b) In
connection with the transfer and assignment of each Mortgage Loan,
the Depositor has delivered or caused to be delivered to the
Trustee for the benefit of the Certificateholders the following
documents or instruments with respect to each Mortgage Loan so
assigned:
(i) the
original Mortgage Note (except for any Mortgage Notes for which
there is a lost note affidavit and the copy of the Mortgage Note)
bearing all intervening endorsements showing a complete chain of
endorsement from the originator to the last endorsee, endorsed
“Pay to the order of _____________, without recourse”
and signed in the name of the last endorsee. To the extent that
there is no room on the face any Mortgage Note for an endorsement,
the endorsement may be contained on an allonge, unless state law
does not so allow and the Trustee is advised by the Depositor that
state law does not so allow;
(ii) the
original of any guarantee executed in connection with the Mortgage
Note;
(iii) the
original Mortgage with evidence of recording thereon or a certified
true copy of such Mortgage submitted for recording. If in
connection with any Mortgage Loan, the Responsible Party cannot
deliver or cause to be delivered the original Mortgage with
evidence of recording thereon on or prior to the Closing Date
because of a delay caused by the public recording office where such
Mortgage has been delivered for recordation or because such
Mortgage has been lost or because such public recording office
retains the original recorded Mortgage, the Responsible Party (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 (A) in
the case of a delay caused by the public recording office, an
officer’s certificate of the Responsible Party, or evidence
of certification on the face of such photocopy of such Mortgage, or
certified by the title company, escrow agent, or closing attorney
stating that such Mortgage has been dispatched to the appropriate
public recording office for recordation and that the original
recorded Mortgage or a copy of such Mortgage certified by such
public recording office to be a true and complete copy of the
original recorded Mortgage will be promptly delivered to the
Trustee upon receipt thereof by the
Responsible Party; or (B) 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) the
originals of all intervening Assignments of Mortgage (if any)
evidencing a complete chain of assignment from the applicable
originator (or MERS with respect to each MERS Designated Mortgage
Loan) to the last endorsee with evidence of recording thereon, or
if any such intervening assignment has not been returned from the
applicable recording office or has been lost or if such public
recording office retains the original recorded Assignments of
Mortgage, the Responsible Party (to the extent that it has not
previously delivered the same to the Purchaser or the Trustee),
shall deliver or cause to be delivered to the Trustee, a photocopy
of such intervening assignment, together with (A) in the case of a
delay caused by the public recording office, an officer’s
certificate of the Responsible Party, or evidence of certification
on the face of such photocopy of such intervening assignment, or
certified by the title company, escrow agent, or closing attorney
stating that such intervening Assignment of Mortgage has been
dispatched to the appropriate public recording office for
recordation and that such original recorded intervening Assignment
of Mortgage or a copy of such intervening Assignment of Mortgage
certified by the appropriate public recording office to be a true
and complete copy of the original recorded intervening assignment
of mortgage will be promptly delivered to the Trustee upon receipt
thereof by the Responsible Party, or (B) in the case of an
intervening assignment where a public recording office retains the
original recorded intervening assignment or in the case where an
intervening assignment is lost after recordation in a public
recording office, a copy of such intervening assignment certified
by such public recording office to be a true and complete copy of
the original recorded intervening assignment;
(vii) the
original 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 Trustee and the Servicer in enforcing the
obligations of the Purchaser under the Responsible Party
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 Responsible Party to deliver to the Trustee
the applicable individual lost note affidavits within ten (10)
Business Days of the Closing Date. If the Responsible Party fails
to deliver the required individual lost note affidavits within the
specified period of time, the Trustee shall notify the Responsible
Party to take such remedial actions, including, without limitation,
the repurchase by the Responsible Party of such Mortgage Loan
within 60 days of the Closing Date.
The Depositor shall use reasonable
efforts to cause the Purchaser and the Responsible Party to deliver
to the Trustee the applicable recorded document promptly upon
receipt from the respective recording office but in no event later
than 150 days from the Closing Date.
If any Mortgage has been recorded in
the name of Mortgage Electronic Registration System, Inc.
(“MERS”) or its designee, no Assignment of Mortgage in
favor of the Trustee will be required to be prepared or delivered
and instead, the 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 and Responsible Party, as
applicable, to forward, with respect to the Mortgage Loans, to the
Trustee additional documents evidencing an assumption,
modification, consolidation or extension of a Mortgage Loan
approved by the Responsible Party in accordance with the terms of
the Responsible Party Agreements. All such mortgage documents held
by the Trustee as to each Mortgage Loan shall constitute the
“Custodial File.”
On or prior to the Closing Date, the
Depositor shall use reasonable efforts to cause the Purchaser or
Responsible Party to deliver to the Trustee 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 or Responsible Party
to cause the Assignments of Mortgage with completed recording
information to be provided to the Servicer in a reasonably
acceptable manner. No later than thirty (30) Business Days
following the later of the Closing Date and the date of receipt by
the Servicer of the fully completed Assignments of Mortgages in
recordable form, the Servicer shall promptly submit or cause to be
submitted for recording, at the expense of the Responsible Party
pursuant to the Purchase Agreement, at no expense to the Trust
Fund, the Depositor or the Trustee in the appropriate public office
for real property records, each Assignment of Mortgage referred to
in Section 2.01(b)(v). Notwithstanding the foregoing, however, for
administrative convenience and facilitation of servicing and to
reduce closing costs, the Assignments of Mortgage shall not be
required to be completed and submitted for recording with respect
to any Mortgage Loan if (i) the Trustee and each Rating Agency has
received an opinion of counsel, satisfactory in form and substance
to the Trustee and each Rating Agency, to the effect that the
recordation of such Assignments of Mortgage in any specific
jurisdiction is not necessary to protect the Trustee’s
interest in the related Mortgage Note or (ii) if such Mortgage Loan
is a MERS Designated
Mortgage Loan. If the Assignment of
Mortgage is to be recorded, the 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 July 1, 2005, FFMLT Trust 2005-FFA.” 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 Responsible Party
Agreements.
On or prior to the Closing Date, the
Depositor shall deliver to the Trustee and the Servicer a copy of
the Data Tape Information in electronic, machine readable medium in
a form mutually acceptable to the Depositor, the Servicer and the
Trustee. Within ten (10) Business Days of the Closing Date, the
Depositor shall deliver a copy of the complete Mortgage Loan
Schedule to the Trustee and the Servicer.
In the event, with respect to any
Mortgage Loan, that such original or copy of any document submitted
for recordation to the appropriate public recording office is not
so delivered to the Trustee within 180 days of the applicable
Original Purchase Date as specified in the Purchase Agreement, the
Trustee shall notify the Depositor and the Depositor shall take or
cause to be taken such remedial actions under the Purchase
Agreement as may be permitted to be taken thereunder, including
without limitation, if applicable, the repurchase by the
Responsible Party of such Mortgage Loan. The foregoing repurchase
remedy shall not apply in the event that the Responsible Party
cannot deliver such original or copy of any document submitted for
recordation to the appropriate public recording office within the
specified period due to a delay caused by the recording office in
the applicable jurisdiction; provided, that the Responsible Party
shall instead deliver a recording receipt of such recording office
or, if such recording receipt is not available, an officer’s
certificate of an officer of the Responsible Party confirming that
such document has been accepted for recording.
Notwithstanding anything to the
contrary contained in this Section 2.01, in those instances where
the public recording office retains or loses the original Mortgage
or assignment after it has been recorded, the obligations of the
Responsible Party shall be deemed to have been satisfied upon
delivery by the Responsible Party to the Trustee prior to the
Closing Date of a copy of such Mortgage or assignment, as the case
may be, certified (such certification to be an original thereof) by
the public recording office to be a true and complete copy of the
recorded original thereof.
(c) The
Depositor does hereby establish, pursuant to the further provisions
of this Agreement and the laws of the State of New York, an express
trust (the “Trust”) to be known, for convenience, as
“FFMLT Trust 2005-FFA” and Deutsche Bank National Trust
Company is hereby appointed as Trustee in accordance with the
provisions of this Agreement. The parties hereto acknowledge and
agree that it is the policy and intention of the Trust to acquire
only Mortgage Loans meeting the requirements set forth in this
Agreement.
(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 Responsible Party
Agreements) pursuant to Section 2.01(a).
Section
2.02 Acceptance by the Trustee of
the Mortgage Loans . The Trustee acknowledges
receipt of the documents identified in the Initial Certification in
the form annexed hereto as Exhibit E, and declares that it
holds and will hold such documents and the other documents
delivered to it pursuant to Section 2.01, and that it holds or
will hold such other assets as are included in the Trust Fund, in
trust for the exclusive use and benefit of all present and future
Certificateholders. The Trustee acknowledges that it will maintain
possession of the related Mortgage Notes in the State of California
unless otherwise permitted by the Rating Agencies.
Prior to and as a condition to the
Closing, the Trustee shall deliver via facsimile (with original to
follow the next Business Day) to the Depositor and the Servicer an
Initial Certification prior to the Closing Date, or as the
Depositor agrees to, on the Closing Date, certifying receipt of a
Mortgage Note and Assignment of Mortgage for each Mortgage Loan
with any exceptions thereon. The Trustee shall not be responsible
to verify the validity, sufficiency or genuineness of any document
in any Custodial File.
On the Closing Date, the Trustee
shall ascertain that all documents required to be reviewed by it
are in its possession, and shall deliver to the Depositor and the
Servicer an Initial Certification, in the form annexed hereto as
Exhibit E, and shall deliver to the Depositor and the Servicer
a Document Certification and Exception Report, in the form annexed
hereto as Exhibit F, within 90 days (or with respect to any
Substitute Mortgage Loan delivered to the Trustee, within 30 days
after the receipt of the mortgage file by the Trustee) 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 (2),
(3) and (13) of the Mortgage Loan Schedule and items (2), (3) and
(13) of the Data Tape Information respecting such Mortgage Loan is
correct; and (iv) each Mortgage Note has been endorsed as
provided in Section 2.01 of this Agreement. The Trustee shall
not be responsible to verify the validity, sufficiency or
genuineness of any document in any Custodial File.
The Trustee shall retain possession
and custody of each Custodial File in accordance with and subject
to the terms and conditions set forth herein. The Servicer shall
promptly deliver to the Trustee, upon the execution or receipt
thereof, the originals of such other documents or instruments
constituting the Custodial File as come into the possession of the
Servicer from time to time.
The Depositor shall use reasonable
efforts to cause the Responsible Party to deliver to the Servicer
copies of all trailing documents required to be included in the
Custodial File at the same time the original or certified copies
thereof are delivered to the Trustee, including but not limited to
such documents as the title insurance policy and any other Mortgage
Loan documents upon return from the public recording office. The
Depositor shall use
reasonable efforts to cause the
Responsible Party to deliver such documents at the Responsible
Party’s expense (pursuant to the Purchase Agreement) to the
Servicer and in no event shall the Servicer be responsible for any
expenses relating to such delivery obligation.
Section
2.03 Representations, Warranties
and Covenants of the Servicer . (a) The Servicer
hereby makes the representations and warranties set forth in
Schedule II hereto to the Depositor and the Trustee as of the
Closing Date.
(b) It
is understood and agreed by the Servicer 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 the
Depositor, the Trustee, or the Servicer of a breach of any of the
foregoing representations and warranties, the party discovering
such breach shall give prompt written notice to the
others.
(c) In
connection with any repurchase or substitution of a Mortgage Loan
pursuant to this Section 2.03 or the Responsible Party Agreements,
the 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 or Loans and the substitution of the Substitute Mortgage Loan
or Loans and the Servicer shall deliver the amended Mortgage Loan
Schedule to the Trustee. Upon any such repurchase or any
substitution and the deposit to the Collection Account of any
Substitution Adjustment Amount, the Trustee shall release the
Mortgage File held for the benefit of the Certificateholders
relating to such Deleted Mortgage Loan to the Purchaser or the
Responsible Party, as applicable, and shall execute and deliver at
the direction of the Purchaser or the Responsible Party, as
applicable, such instruments of transfer or assignment prepared by
the Purchaser or the Responsible Party, as applicable, in each case
without recourse, as shall be necessary to vest title in the
Purchaser or the Responsible Party, as applicable, or their
respective designees, the Trustee’s interest in any Deleted
Mortgage Loan substituted for pursuant to this Section
2.03.
(d) For
any month in which the Purchaser or the Responsible Party, as
applicable, substitutes one or more Substitute Mortgage Loans for
one or more Deleted Mortgage Loans, the Servicer will determine the
amount (if any) by which the aggregate unpaid principal balance of
all such Substitute Mortgage Loans as of the date of substitution
is less than the aggregate Stated Principal Balance of all such
Deleted Mortgage Loans (after application of the scheduled
principal portion of the Scheduled Payments due in the Due Period
of substitution). The Depositor shall use reasonable efforts to
cause the Purchaser or the Responsible Party, as applicable, to
remit to the Servicer for deposit into the Collection Account on or
before the next Remittance Date any Substitution Adjustment
Amount.
(e) In
the event that a Mortgage Loan shall have been repurchased pursuant
to the Responsible Party Agremeents, the proceeds from such
repurchase shall be deposited in the Collection Account by the
Servicer, pursuant to Section 3.10 on or before the next
Remittance Date and upon such deposit of the Repurchase Price, and
receipt of a Request for Release in the form of Exhibit J
hereto, the Trustee shall release the related Custodial File held
for the benefit of the Certificateholders to such Person as
directed by the Servicer, and the Trustee shall execute
and deliver at such Person’s
direction such instruments of transfer or assignment prepared by
such Person, in each case without recourse, as shall be necessary
to transfer title from the Trustee. It is understood and agreed
that the obligation under this Agreement of any Person to cure,
repurchase or replace any Mortgage Loan as to which a breach has
occurred and is continuing, together with any related
indemnification obligations, shall constitute the sole remedy
against such Persons respecting such breach available to
Certificateholders, the Depositor, the Servicer or the Trustee on
their behalf.
The representations and warranties
made pursuant to this Section 2.03 shall survive delivery of
the respective Custodial Files to the Trustee for the benefit of
the Certificateholders.
Section 2.05
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 2025, which is the
Distribution Date following the latest Mortgage Loan maturity
date.
Section
2.07 Representations and
Warranties of the Depositor . The Depositor hereby represents,
warrants and covenants to the Trustee and the 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 Servicer, the Co-Trustee and the Trustee,
constitutes or will constitute the legal, valid and binding
agreement of the Depositor, enforceable against the Depositor in
accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting the rights of creditors
generally, and by general equity principles (regardless of whether
such enforcement is considered in a proceeding in equity or at
law);
(d) No
consent, approval, authorization or order of or registration or
filing with, or notice to, any governmental authority or court is
required for the execution, delivery and performance of or
compliance by the Depositor with this Agreement or the consummation
by the Depositor of any of the transactions contemplated hereby,
except as have been made on or prior to the Closing
Date;
(e) None
of the execution and delivery of this Agreement, the consummation
of the transactions contemplated hereby or thereby, or the
fulfillment of or compliance with the terms and conditions of this
Agreement, (i) conflicts or will conflict with or results or
will result in a breach of, or constitutes or will constitute a
default or results or will result in an acceleration under
(A) the charter or bylaws of the Depositor, or (B) of any
term, condition or provision of any material indenture, deed of
trust, contract or other agreement or instrument to which the
Depositor or any of its subsidiaries is a party or by which it or
any of its subsidiaries is bound; (ii) results or will result
in a violation of any law, rule, regulation, order, judgment or
decree applicable to the Depositor of any court or governmental
authority having jurisdiction over the Depositor or its
subsidiaries; or (iii) results in the creation or imposition
of any lien, charge or encumbrance which would have a material
adverse effect upon the Mortgage Loans or any documents or
instruments evidencing or securing the Mortgage Loans;
(f) There
are no actions, suits or proceedings before or against or
investigations of, the Depositor pending, or to the knowledge of
the Depositor, threatened, before any court, administrative agency
or other tribunal, and no notice of any such action, which, in the
Depositor’s reasonable judgment, might materially and
adversely affect the performance by the Depositor of its
obligations under this Agreement, or the validity or enforceability
of this Agreement;
(g) The
Depositor is not in default with respect to any order or decree of
any court or any order, regulation or demand of any federal, state,
municipal or governmental agency that may materially and adversely
affect its performance hereunder; and
(h) Immediately
prior to the transfer and assignment by the Depositor to the
Trustee on the Closing Date, the Depositor had good title to, and
was the sole owner of each Mortgage Loan, free of any interest of
any other Person, and the Depositor has transferred all right,
title and interest in each Mortgage Loan to the Trustee. The
transfer of each Mortgage Note and each Mortgage as and in the
manner contemplated by this Agreement is sufficient either
(i) fully to transfer to the Trustee, for the benefit of the
Certificateholders, all right, title, and interest of the Depositor
thereto as note holder and mortgagee or (ii) to grant to the
Trustee, for the benefit of the Certificateholders, the security
interest referred to in Section 10.04.
It is understood and agreed that the
representations, warranties and covenants set forth in this
Section 2.07 shall survive delivery of the respective
Custodial Files to the Trustee or to a custodian, as the case may
be, and shall inure to the benefit of the Trustee.
Section
2.08 Enforcement of Purchaser and
Responsible Party Obligations . Upon discovery by any of the
parties hereto of a breach of a representation or warranty made by
the Purchaser or Responsible Party pursuant to the Responsible
Party Agreements, the party discovering such breach shall give
prompt written notice thereof to the other parties to
this
Agreement and the Purchaser or the
Responsible Party, as applicable. The Trustee shall take such
action, with the Depositor’s consent, with respect to such
breach under Responsible Party Agreements 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 Servicer to Service Mortgage
Loans . (a) For and on behalf of the
Certificateholders, the Servicer shall service and administer the
Mortgage Loans in accordance with the terms of this Agreement, in
accordance with the Radian Guidelines (to the extent such Radian
Guidelines are not inconsistent with the terms of this Agreement)
and in accordance with the respective Mortgage Loans and, to the
extent consistent with such terms, in compliance with all
applicable federal, state and local laws, and in the same manner in
which it services and administers similar mortgage loans for its
own portfolio, giving due consideration to customary and usual
standards of practice of mortgage lenders and loan servicers
administering similar mortgage loans but without regard
to:
(i) any
relationship that the Servicer, any Subservicer or any Affiliate of
the Servicer or any Subservicer may have with the related
Mortgagor;
(ii) the
ownership or non-ownership of any Certificate by the Servicer or
any Affiliate of the Servicer;
(iii) the
Servicer’s obligation to make P&I Advances or Servicing
Advances; or
(iv) the
Servicer’s or any Subservicer’s right to receive
compensation for its services hereunder or with respect to any
particular transaction.
To the extent consistent with the
foregoing, the Servicer shall seek to maximize the timely and
complete recovery of principal and interest on the related Mortgage
Notes. Subject only to the above-described servicing standards and
the terms of this Agreement and of the respective Mortgage Loans,
the Servicer shall have full power and authority, acting alone or
through Subservicers as provided in Section 3.02, to do or
cause to be done any and all things in connection with such
servicing and administration which it may deem necessary or
desirable. Without limiting the generality of the foregoing, the
Servicer in its own name or in the name of a Subservicer is hereby
authorized and empowered by the Trustee when the Servicer believes
it appropriate in its best judgment in accordance with 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. The Servicer shall
service and administer the Mortgage Loans in accordance with
applicable state and federal law and shall provide to the
Mortgagors any reports required to be provided to them thereby.
Subject to Section 3.16, the Trustee shall execute, at the
written request of the Servicer, and furnish to the Servicer and
any Subservicer such documents as are necessary or appropriate to
enable the Servicer or any Subservicer to carry out their servicing
and administrative duties hereunder, and the Trustee hereby grants
to the Servicer and each Subservicer, and this Agreement
shall
constitute, a power of attorney to
carry out such duties including a power of attorney to take title
to Mortgaged Properties after foreclosure on behalf of the Trustee
and in the name of the Trust. The Trustee shall execute a power of
attorney in the form attached hereto as Exhibit Q in favor of the
Servicer and/or each Subservicer for the purposes described herein
to the extent necessary or desirable to enable the Servicer to
perform its duties hereunder. The Trustee shall not be liable for
the actions of the Servicer or any Subservicers under such powers
of attorney. If the Servicer receives any notice of suit,
litigation or proceeding in the name of Deutsche Bank National
Trust Company, then the Servicer shall promptly forward a copy of
same to the Trustee unless the notice of said suit, litigation or
proceeding was provided by the Trustee to the Servicer.
(b) In
accordance with the standards of the preceding paragraph, the
Servicer shall advance or cause to be advanced funds as necessary
for the purpose of effecting the timely payment of taxes and
assessments on the Mortgaged Properties (to the extent the Servicer
has received reasonable timely notice that such taxes or
assessments have not been paid by the related Mortgagor or the
owner or the servicer of the related First Lien Mortgage Loan),
which advances shall be Servicing Advances reimbursable in the
first instance from related collections from the Mortgagors, and
further as provided in Section 3.11. Any cost incurred by the
Servicer or by Subservicers in effecting the timely payment of
taxes and assessments on a Mortgaged Property shall not be added to
the unpaid principal balance of the related Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit.
Notwithstanding anything in this Agreement to the contrary,
however, the Servicer need not make any future advances with
respect to a Mortgage Loan if the Servicer makes a good faith
determination that such advance would, if made, constitute a
Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance,
as set forth in Section 4.01.
(c) The
Servicer shall not (i) permit any modification with respect to
any Mortgage Loan that would change the Mortgage Interest Rate,
reduce or increase the principal balance (except for reductions
resulting from actual payments of principal) or change the final
maturity date on such Mortgage Loan (except for (A) a
reduction of interest or principal payments resulting from the
application of the Servicemembers Civil Relief Act or any similar
state statutes or (B) as provided in Section 3.07, if the
Mortgagor is in default with respect to the Mortgage Loan or such
default is, in the judgment of the Servicer, reasonably
foreseeable) or (ii) permit any modification, waiver or
amendment of any term of any Mortgage Loan that would both
(A) effect an exchange or reissuance of such Mortgage Loan
under Section 1001 of the Code (or final, temporary or
proposed Treasury regulations promulgated thereunder) and
(B) cause either Trust REMIC to fail to qualify as a REMIC
under the Code or the imposition of any tax on “prohibited
transactions” or “contributions after the start-up
day” under the REMIC Provisions, or (iii) except as
provided in Section 3.07(a), waive any Prepayment
Premiums.
(d) The
Servicer may delegate its responsibilities under this Agreement;
provided , however , that no such delegation shall
release the Servicer from the responsibilities or liabilities
arising under this Agreement.
(e) If
the Mortgage relating to a Mortgage Loan had a related First Lien
Mortgage Loan on the related Mortgaged Property as of the Cut-off
Date, then the Servicer, in such capacity, may consent to the
refinancing of the related First Lien Mortgage Loan, provided that
the such refinancing is consistent with the Radian Guidelines or,
if the Mortgage Pool
Insurer has denied a claim with
respect to the related Mortgage Loan or if such Mortgage Loan is
not a Covered Loan, the following requirements are met:
(i) the
resulting Combined Loan-to-Value Ratio of such Mortgage Loan is no
higher than the Combined Loan-to-Value Ratio prior to such
refinancing;
(ii) the
interest rate, or, in the case of an adjustable rate related First
Lien Mortgage Loan, the maximum interest rate, for the loan
evidencing the refinanced senior lien is no more than 2.0% higher
than the interest rate or the maximum interest rate, as the case
may be, on the existing First Lien Mortgage Loan immediately prior
to the date of such refinancing; and
(iii) the
loan evidencing the refinanced senior lien is not subject to
negative amortization..
Section
3.02 Subservicing Agreements
between the Servicer and Subservicers . (a) The
Servicer may enter into subservicing agreements with subservicers
(each, a “Subservicer”), for the servicing and
administration of the Mortgage Loans (“Subservicing
Agreements”).
(b) Each
Subservicer shall be (i) authorized to transact business in
the state or states in which the related Mortgaged Properties it is
to service are situated, if and to the extent required by
applicable law to enable the Subservicer to perform its obligations
hereunder and under the Subservicing Agreement, (ii) an
institution approved as a mortgage loan originator by the Federal
Housing Administration or an institution that has deposit accounts
insured by the FDIC and (iii) a Freddie Mac or Fannie Mae
approved mortgage servicer. Each Subservicing Agreement must impose
on the Subservicer requirements conforming to the provisions set
forth in Section 3.08 and provide for servicing of the
Mortgage Loans consistent with the terms of this Agreement. The
Servicer will examine each Subservicing Agreement and will be
familiar with the terms thereof. The terms of any Subservicing
Agreement will not be inconsistent with any of the provisions of
this Agreement. The Servicer and the Subservicers may enter into
and make amendments to the Subservicing Agreements or enter into
different forms of Subservicing Agreements; provided, however, that
any such amendments or different forms shall be consistent with and
not violate the provisions of this Agreement, and that no such
amendment or different form shall be made or entered into which
could be reasonably expected to be materially adverse to the
interests of the Trustee, without the consent of the Trustee. Any
variation without the consent of the Trustee from the provisions
set forth in Section 3.08 relating to insurance or priority
requirements of Subservicing Accounts, or credits and charges to
the Subservicing Accounts or the timing and amount of remittances
by the Subservicers to the Servicer, are conclusively deemed to be
inconsistent with this Agreement and therefore prohibited. The
Servicer shall deliver to the Trustee and the Depositor copies of
all Subservicing Agreements, and any amendments or modifications
thereof, promptly upon the Servicer’s execution and delivery
of such instruments.
(c) As
part of its servicing activities hereunder, the Servicer (except as
otherwise provided in the last sentence of this paragraph), for the
benefit of the Trustee, shall
enforce the obligations of each
Subservicer under the related Subservicing Agreement, including,
without limitation, any obligation to make advances in respect of
delinquent payments as required by a Subservicing Agreement. Such
enforcement, including, without limitation, the legal prosecution
of claims, termination of Subservicing Agreements, and the pursuit
of other appropriate remedies, shall be in such form and carried
out to such an extent and at such time as the Servicer, in its good
faith business judgment, would require were it the owner of the
related Mortgage Loans. The Servicer shall pay the costs of such
enforcement at its own expense, and shall be reimbursed therefor
only (i) from a general recovery resulting from such
enforcement, to the extent, if any, that such recovery exceeds all
amounts due in respect of the related Mortgage Loans or
(ii) from a specific recovery of costs, expenses or
attorneys’ fees against the party against whom such
enforcement is directed.
Section
3.03 Successor Subservicers
. The Servicer shall be entitled to terminate any
Subservicing Agreement and the rights and obligations of any
Subservicer pursuant to any Subservicing Agreement in accordance
with the terms and conditions of such Subservicing Agreement. In
the event of termination of any Subservicer, all servicing
obligations of such Subservicer shall be assumed simultaneously by
the Servicer without any act or deed on the part of such
Subservicer or the Servicer, and the Servicer either shall service
directly the related Mortgage Loans or shall enter into a
Subservicing Agreement with a successor Subservicer which qualifies
under Section 3.02.
Any Subservicing Agreement shall
include the provision that such agreement may be immediately
terminated by the Depositor or the Trustee without fee, in
accordance with the terms of this Agreement, in the event that the
Servicer shall, for any reason, no longer be the Servicer
(including termination due to an Event of Default).
Section 3.04
Liability of the Servicer . Notwithstanding
any Subservicing Agreement, any of the provisions of this Agreement
relating to agreements or arrangements between the Servicer and a
Subservicer or reference to actions taken through a Subservicer or
otherwise, the Servicer shall remain obligated and primarily liable
to the Trustee for the servicing and administering of the Mortgage
Loans in accordance with the provisions of Section 3.01
without diminution of such obligation or liability by virtue of
such Subservicing Agreements or arrangements or by virtue of
indemnification from the Subservicer and to the same extent and
under the same terms and conditions as if the Servicer alone were
servicing and administering such Mortgage Loans. The Servicer shall
be entitled to enter into any agreement with a Subservicer for
indemnification of the Servicer by such Subservicer and nothing
contained in this Agreement shall be deemed to limit or modify such
indemnification.
Section
3.05 No Contractual Relationship
between Subservicers and the Trustee . Any
Subservicing Agreement that may be entered into and any
transactions or services relating to the Mortgage Loans involving a
Subservicer in its capacity as such shall be deemed to be between
the Subservicer and the Servicer alone, and the Trustee (or any
successor Servicer) shall not be deemed a party thereto and shall
have no claims, rights, obligations, duties or liabilities with
respect to the Subservicer except as set forth in
Section 3.06. The Servicer shall be solely liable for all fees
owed by it to any Subservicer, irrespective of whether the
Servicer’s compensation pursuant to this Agreement is
sufficient to pay such fees.
Section
3.06 Assumption or Termination of
Subservicing Agreements by Trustee . In the event
the Servicer at any time shall for any reason no longer be the
Servicer (including by reason of the occurrence of an Event of
Default), the Trustee, or its designee, or the successor Servicer
if the successor Servicer is not the Trustee, shall thereupon
assume all of the rights and obligations of the Servicer under each
Subservicing Agreement that the Servicer may have entered into,
with copies thereof provided to the Trustee prior to the Trustee
assuming such rights and obligations, unless the Trustee elects to
terminate any Subservicing Agreement in accordance with its terms
as provided in Section 3.03.
Upon such assumption, the Trustee,
its designee or the successor servicer shall be deemed, subject to
Section 3.03, to have assumed all of the Servicer’s
interest therein and to have replaced the Servicer as a party to
each Subservicing Agreement to 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) the Servicer
shall not thereby be relieved of any liability or obligations under
any Subservicing Agreement that arose before it ceased to be the
Servicer and (ii) none of the Depositor, the Trustee, their
designees or any successor to the Servicer shall be deemed to have
assumed any liability or obligation of the Servicer that arose
before it ceased to be the Servicer.
The Servicer at its expense shall,
upon request of the Trustee, deliver to the assuming party all
documents and records relating to each Subservicing Agreement and
the Mortgage Loans then being serviced by it and an accounting of
amounts collected and held by or on behalf of it, and otherwise use
its best efforts to effect the orderly and efficient transfer of
the Subservicing Agreements to the assuming party.
Section
3.07 Collection of Certain
Mortgage Loan Payments . (a) The Servicer shall
make reasonable efforts to collect all payments called for under
the terms and provisions of the Mortgage Loans and shall, to the
extent such procedures shall be consistent with this Agreement and
the terms and provisions of any applicable insurance policies,
follow such collection procedures as it would follow with respect
to mortgage loans comparable to the Mortgage Loans and held for its
own account. Consistent with the foregoing and Accepted Servicing
Practices, the Servicer may (i) waive any late payment charge
or, if applicable, any penalty interest, or (ii) extend the
due dates for the Scheduled Payments due on a Mortgage Note for a
period of not greater than 180 days; provided, that any
extension pursuant to clause (ii) above shall not affect the
amortization schedule of any Mortgage Loan for purposes of any
computation hereunder, except as provided below. In the event of
any such arrangement pursuant to clause (ii) above, the
Servicer shall make timely advances on such Mortgage Loan during
such extension to the extent required by Section 4.01 and in
accordance with the amortization schedule of such Mortgage Loan
without modification thereof by reason of such arrangements,
subject to Section 4.01(d) pursuant to which the Servicer
shall not be required to make any such advances that are
Nonrecoverable P&I Advances. Notwithstanding the foregoing, in
the event that any Mortgage Loan is in default or in the judgment
of the Servicer, such default is reasonably foreseeable, the
Servicer, consistent with the standards set forth in
Section 3.01, may also waive, modify or vary any term of such
Mortgage Loan (including modifications that would change the
Mortgage Interest Rate, forgive the payment of principal or
interest, extend the final maturity date of such Mortgage Loan or
waive, in whole or in part, a Prepayment Premium), accept payment
from the related Mortgagor of an amount less than the Stated
Principal Balance
in final satisfaction of such
Mortgage Loan, or consent to the postponement of strict compliance
with any such term or otherwise grant indulgence to any Mortgagor
(any and all such waivers, modifications, variances, forgiveness of
principal or interest, postponements, or indulgences collectively
referred to herein as “Forbearance”); provided,
however, that the final maturity date of any Mortgage Loan may not
be extended beyond the Final Scheduled Distribution Date for the
Offered Certificates and the Class B-4 Certificates and Class B-5
Certificates and no such modification will be granted without the
prior consent of the Mortgage Pool Insurer if so required in the
Mortgage Pool Insurance Policy. The Servicer’s analysis
supporting any Forbearance and the conclusion that any Forbearance
meets the standards of Section 3.01 shall be reflected in writing
in the applicable Servicing File or on the Servicer’s
servicing records. In addition, notwithstanding the foregoing, the
Servicer may also waive (or permit a Subservicer to waive), in
whole or in part, a Prepayment Premium if such waiver would, in the
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 Servicer is required to pay
the amount of such waived Prepayment Premium, for the benefit of
the Holders of the Class P Certificates, by depositing such
amount into the Collection Account together with and at the time
that the amount prepaid on the related Mortgage Loan is required to
be deposited into the Collection Account; provided, however, that
the Servicer shall not have an obligation to pay the amount of any
uncollected Prepayment Premium if the failure to collect such
amount is the direct result of inaccurate or incomplete information
on the Mortgage Loan Schedule in effect at such time.
(b) The
Servicer shall give notice to the Trustee, each Rating Agency and
the Depositor of any proposed change of the location of the
Collection Account within a reasonable period of time prior to any
change thereof.
Section
3.08 Subservicing Accounts
. In those cases where a Subservicer is servicing a
Mortgage Loan pursuant to a Subservicing Agreement, the Subservicer
will be required to establish and maintain one or more accounts
(collectively, the “Subservicing Account”). The
Subservicing Account shall be an Eligible Account and shall
otherwise be acceptable to the Servicer. The Subservicer shall
deposit in the clearing account (which account must be an Eligible
Account) in which it customarily deposits payments and collections
on mortgage loans in connection with its mortgage loan servicing
activities on a daily basis, and in no event more than one Business
Day after the Subservicer’s receipt thereof, all proceeds of
Mortgage Loans received by the Subservicer less its servicing
compensation to the extent permitted by the Subservicing Agreement,
and shall thereafter deposit such amounts in the Subservicing
Account, in no event more than two Business Days after the deposit
of such funds into the clearing account. The Subservicer shall
thereafter deposit such proceeds in the Collection Account of the
Servicer or remit such proceeds to the Servicer for deposit in the
Collection Account not later than two Business Days after the
deposit of such amounts in the
Subservicing Account. For purposes
of this Agreement, the Servicer shall be deemed to have received
payments on the Mortgage Loans when the Subservicer receives such
payments.
Section 3.10
Collection Account . (a) On behalf of the
Trustee, the Servicer shall establish and maintain, or cause to be
established and maintained, one or more 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 Servicer. On behalf of the Trustee, the Servicer
shall deposit or cause to be deposited in the clearing account
(which account must be an Eligible Account) in which it customarily
deposits payments and collections on mortgage loans in connection
with its mortgage loan servicing activities on a daily basis, and
in no event more than one Business Day after the Servicer’s
receipt thereof, and shall thereafter deposit in the Collection
Account, in no event more than two Business Days after the deposit
of such funds into the clearing account, as and when received or as
otherwise required hereunder, the following payments and
collections received or made by it subsequent to the Cut-off Date
(other than in respect of principal or interest on the related
Mortgage Loans due on or before the Cut-off Date), or payments
(other than Principal Prepayments) received by it on or prior to
the related Cut-off Date but allocable to a Due Period subsequent
thereto:
(i) all
payments on account of principal, including Principal Prepayments,
on the Mortgage Loans;
(ii) all
payments on account of interest (net of the Servicing Fee) on each
Mortgage Loan;
(iii) all
Insurance Proceeds (other than any proceeds under the Mortgage Pool
Insurance Policy) and Condemnation Proceeds (to the extent such
Insurance Proceeds and Condemnation Proceeds are not to be applied
to the restoration of the related Mortgaged Property or released to
the related Mortgagor in accordance with the express requirements
of law or in accordance with prudent and customary servicing
practices) and all Liquidation Proceeds;
(iv) any
amounts required to be deposited pursuant to Section 3.12 in
connection with any losses realized on Permitted Investments with
respect to funds held in the Collection Account;
(v) any
amounts required to be deposited by the Servicer pursuant to the
second paragraph of Section 3.13(a) in respect of any blanket
policy deductibles;
(vi) all
proceeds of any Mortgage Loan repurchased or purchased in
accordance with this Agreement and any Substitution Adjustment
Amount; and
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(vii)
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all Prepayment Premiums collected by
the Servicer.
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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, any payments in the nature of late payment charges, NSF
fees, reconveyance fees, assumption fees and other similar fees and
charges need not be deposited by the Servicer in the Collection
Account and shall, upon collection, belong to the Servicer as
additional compensation for its servicing activities. In the event
the Servicer shall deposit in the Collection Account any amount not
required to be deposited therein, it may at any time withdraw such
amount from the Collection Account, any provision herein to the
contrary notwithstanding.
(b) Funds
in the Collection Account may be invested in Permitted Investments
in accordance with the provisions set forth in Section 3.12.
The Servicer shall give notice to the Trustee and the Depositor of
the location of the Collection Account maintained by it when
established and prior to any change thereof.
Section
3.11 Withdrawals from the
Collection Account . (a) The Servicer shall, from
time to time, make withdrawals from the Collection Account for any
of the following purposes or as described in
Section 4.01:
(i) on
or prior to the Remittance Date, to remit to the Trustee
(A) the Trustee Fee with respect to such Distribution Date and
(B) all Available Funds in respect of the related Distribution
Date together with all amounts representing Prepayment Premiums
from the Mortgage Loans received during the related Prepayment
Period;
(ii) to
reimburse the Servicer for P&I Advances, but only to the extent
of amounts received which represent Late Collections (net of the
related Servicing Fees) of Scheduled Payments on Mortgage Loans
with respect to which such P&I Advances were made in accordance
with the provisions of Section 4.01;
(iii) to
pay the Servicer or any Subservicer (A) any unpaid Servicing
Fees (including such unpaid Servicing Fees as provided in Section
3.15) or (B) any unreimbursed Servicing Advances with respect
to each Mortgage Loan serviced by the Servicer, but only to the
extent of any Late Collections, Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds (including any proceeds under the
Mortgage Pool Insurance Policy) or other amounts as may be
collected by the Servicer from a Mortgagor, or otherwise received
with respect to such Mortgage Loan (or the related REO
Property);
(iv) to
pay to the Servicer as servicing compensation (in addition to the
Servicing Fee) on the Remittance Date any interest or investment
income earned on funds deposited in the Collection
Account;
(v) to
pay the Responsible Party or the Purchaser, 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 the Servicer for (A) any P&I Advance or
Servicing Advance previously made which the Servicer has determined
to be a Nonrecoverable P&I Advance or Nonrecoverable Servicing
Advance in accordance with the provisions of Section 4.01 and
(B) any unpaid Servicing Fees to the extent not recoverable
from Liquidation Proceeds, Insurance Proceeds (including any
proceeds under the Mortgage Pool Insurance Policy) or other amounts
received with respect to the related Mortgage Loan under Section
3.11(a)(iii);
(vii) to
pay, or to reimburse the Servicer for advances in respect of,
expenses incurred in connection with any Mortgage Loan serviced by
the Servicer pursuant to Section 3.15;
(viii) to
reimburse the Servicer, the Depositor or the Trustee for expenses
incurred by or reimbursable to the Servicer, the Depositor or the
Trustee, as the case may be, pursuant to Section 6.03, Section
7.02 or Section 8.05;
(ix) to
reimburse the Servicer or the Trustee, as the case may be, for
expenses reasonably incurred in respect of the breach or defect
giving rise to the repurchase obligation under Section 2.03 of
this Agreement that were included in the Repurchase Price of the
Mortgage Loan, including any expenses arising out of the
enforcement of the repurchase obligation, to the extent not
otherwise paid pursuant to the terms hereof;
(x) to
withdraw any amounts deposited in the Collection Account in error
or for which amounts previously deposited are returned due to a
“not sufficient funds” or other denial of payment by
the related Mortgagor’s banking institution;
(xi) to
withdraw any amounts held in the Collection Account and not
required to be remitted to the Trustee on the Remittance Date
occurring in the month in which such amounts are deposited into the
Collection Account, to reimburse the Servicer for unreimbursed
P&I Advances;
(xii) to
invest funds in Permitted Investments in accordance with
Section 3.12; and
(xiii) to
clear and terminate the Collection Account upon termination of this
Agreement.
To the extent that the Servicer does
not timely make the remittance referred to in clause (i)
above, the Servicer shall pay the Trustee for the account of the
Trustee interest on any amount not timely remitted at the prime
rate, from and including the applicable Remittance Date to but
excluding the date such remittance is actually made.
(b) the
Servicer shall keep and maintain separate accounting, on a Mortgage
Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Collection Account, to the extent held by or on
behalf of it, pursuant to subclauses (a)(ii), (iii), (v),
(vi), (vii), (viii) and (ix) above. The Servicer shall provide
written notification to the Depositor, on or
prior to the next succeeding
Remittance Date, upon making any withdrawals from the Collection
Account pursuant to subclauses (a)(vi) and (viii)
above.
Section
3.12 Investment of Funds in the
Collection Account and the Distribution Account . (a) The
Servicer may invest the funds in the Collection Account and the
Trustee may invest funds in the Distribution Account during the
Trustee Float Period, and shall (except during the Trustee Float
Period), invest such funds in the Distribution Account at the
direction of the Depositor (for purposes of this Section 3.12,
each of the Collection Account and 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 Collection 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:
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(x)
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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
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(y)
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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.
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(b) All
income and gain realized from the investment of funds deposited in
the Collection Account held by or on behalf of the Servicer, shall
be for the benefit of the Servicer and shall be subject to its
withdrawal in the manner set forth in Section 3.11. Any other
benefit derived from the Collection Account associated with the
receipt, disbursement and accumulation of principal, interest,
hazard insurance, mortgage blanket insurance, and like sources,
shall accrue to the benefit of the Servicer, except that the
Servicer shall not realize any economic benefit from any forced
charging of services except as permitted by applicable law. The
Servicer shall deposit in the Collection Account the amount of any
loss of principal incurred in respect of any such Permitted
Investment made with funds in such accounts immediately upon
realization of such loss.
(c) All
income and gain realized from the investment of funds deposited in
the Distribution Account held by the Trustee, shall be for the
benefit of the Depositor (except for any income or gain realized
from the investment of funds on deposit in the Distribution
Account
during the Trustee Float Period,
which shall be for the benefit of the Trustee). The Depositor shall
deposit in the Distribution Account (except with respect to the
Trustee Float Period, in which case the Trustee shall deposit) the
amount of any loss of principal incurred in respect of any such
Permitted Investment made with funds in such accounts immediately
upon realization of such loss.
(d) Except
as otherwise expressly provided in this Agreement, if any default
occurs in the making of a payment due under any Permitted
Investment, or if a default occurs in any other performance
required under any Permitted Investment, the Trustee shall take
such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of
appropriate proceedings.
(e) The
Trustee or its Affiliates are permitted to receive additional
compensation that could be deemed to be in the Trustee’s
economic self-interest for (i) serving as investment adviser,
administrator, shareholder, servicing agent, custodian or
sub-custodian with respect to certain of the Permitted Investments,
(ii) using Affiliates to effect transactions in certain
Permitted Investments and (iii) effecting transactions in
certain Permitted Investments.
(f) The
Trustee shall not be liable for the amount of any loss incurred
with respect of any investment (except that during the Trustee
Float Period, it will be responsible for reimbursing the Trust for
such loss) or lack of investment of funds held in any Investment
Account or the Distribution Account if made in accordance with this
Section 3.12.
Section
3.13 Maintenance of Hazard
Insurance, Errors and Omissions and Fidelity Coverage . (a) The
Servicer shall obtain and maintain a blanket policy insuring
against losses arising from fire and hazards on all of the Mortgage
Loans, which policy shall provide coverage 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. Any amounts to be collected by the
Servicer under any such policy (other than amounts to be applied to
the restoration or repair of the property subject to the related
Mortgage or amounts to be released to the Mortgagor in accordance
with the procedures that the Servicer would follow in servicing
loans held for its own account, subject to the terms and conditions
of the related Mortgage and Mortgage Note) shall be deposited in
the Collection Account, subject to withdrawal pursuant to
Section 3.11.
In the event that such policy
contains a deductible clause, the Servicer shall, in the event that
there shall not have been maintained on the related Mortgaged
Property or REO Property a standard hazard insurance policy and
there shall have been one or more losses which would have been
covered by such policy, the Servicer shall deposit to the
Collection Account from its own funds the amount that is not
otherwise payable under the blanket policy because of such
deductible clause. In connection with its activities as
administrator and servicer of the Mortgage Loans, the Servicer
agrees to prepare and present, on behalf of itself, and the
Trustee
claims under any such blanket policy
in a timely fashion in accordance with the terms of such
policy.
(b) The
Servicer shall keep in force during the term of this Agreement a
policy or policies of insurance covering errors and omissions for
failure in the performance of the Servicer’s obligations
under this Agreement, which policy or policies shall be in such
form and amount that would meet the requirements of Fannie Mae or
Freddie Mac if it were the purchaser of the Mortgage Loans, unless
the Servicer has obtained a waiver of such requirements from Fannie
Mae or Freddie Mac. The Servicer shall also maintain a fidelity
bond in the form and amount that would meet the requirements of
Fannie Mae or Freddie Mac, unless the Servicer has obtained a
waiver of such requirements from Fannie Mae or Freddie Mac. The
Servicer shall provide the Trustee upon request with copies of any
such insurance policies and fidelity bond. The Servicer shall be
deemed to have complied with this provision if an Affiliate of the
Servicer has such errors and omissions and fidelity bond coverage
and, by the terms of such insurance policy or fidelity bond, the
coverage afforded thereunder extends to the Servicer. Any such
errors and omissions policy and fidelity bond shall by its terms
not be cancelable without thirty days’ prior written notice
to the Trustee. The Servicer shall also cause each Subservicer to
maintain a policy of insurance covering errors and omissions and a
fidelity bond which would meet such requirements.
Section
3.14 Enforcement of Due-on-Sale
Clauses; Assumption Agreements . The Servicer
will, to the extent it has knowledge of any conveyance or
prospective conveyance of any Mortgaged Property by any Mortgagor
(whether by absolute conveyance or by contract of sale, and whether
or not the Mortgagor remains or is to remain liable under the
Mortgage Note and/or the Mortgage), exercise its rights to
accelerate the maturity of such Mortgage Loan under the
“due-on-sale” clause, if any, applicable thereto;
provided, however, that the Servicer shall not be required to take
such action if, in its sole business judgment, the Servicer
believes it is not in the best interests of the Trust Fund and
shall not exercise any such rights if prohibited by law from doing
so. If the Servicer reasonably believes it is unable under
applicable law to enforce such “due-on-sale” clause or
if any of the other conditions set forth in the proviso to the
preceding sentence apply, the Servicer will, with the prior written
consent of the Mortgage Pool Insurer, enter into an assumption and
modification agreement from or with the person to whom such
property has been conveyed or is proposed to be conveyed, pursuant
to which such person becomes liable under the Mortgage Note, and,
to the extent permitted by applicable state law, the Mortgagor
remains liable thereon. The Servicer is also authorized to enter
into a substitution of liability agreement with such person,
pursuant to which the original Mortgagor is released from liability
and such person is substituted as the Mortgagor and becomes liable
under the Mortgage Note; provided, that no such substitution shall
be effective unless such person satisfies the underwriting criteria
of the Servicer and such substitution is in the best interest of
the Certificateholders as determined by the Servicer. In connection
with any assumption, modification or substitution, the Servicer
shall apply such underwriting standards and follow such practices
and procedures as shall be normal and usual in its general mortgage
servicing activities and as it applies to other mortgage loans
owned solely by it. The Servicer shall not take or enter into any
assumption and modification agreement, however, unless (to the
extent practicable in the circumstances) it shall have received
confirmation, in writing, of the continued effectiveness of any
applicable hazard insurance policy, or a new policy meeting
the
requirements of this Section is
obtained. Any fee collected by the Servicer in respect of an
assumption, modification or substitution of liability agreement
will be retained by the Servicer as additional servicing
compensation. In connection with any such assumption, no material
term of the Mortgage Note (including but not limited to the related
Mortgage Interest Rate and the amount of the Scheduled Payment) may
be amended or modified, except as otherwise required pursuant to
the terms thereof or as otherwise permitted by this Agreement. The
Servicer shall notify the Trustee that any such substitution,
modification or assumption agreement has been completed by
forwarding to the Trustee the executed original of such
substitution, modification or assumption agreement, which document
shall be added to the related Mortgage File and shall, for all
purposes, be considered a part of such Mortgage File to the same
extent as all other documents and instruments constituting a part
thereof.
Notwithstanding the foregoing
paragraph or any other provision of this Agreement, the Servicer
shall not be deemed to be in default, breach or any other violation
of its obligations hereunder by reason of any assumption of a
Mortgage Loan by operation of law or by the terms of the Mortgage
Note or any assumption which the Servicer may be restricted by law
from preventing, for any reason whatsoever. For purposes of this
Section 3.14, the term “assumption” is deemed to
also include a sale (of the Mortgaged Property) subject to the
Mortgage that is not accompanied by an assumption or substitution
of liability agreement.
Section
3.15 Realization upon Defaulted
Mortgage Loans . (a) The Servicer shall use its
best efforts, consistent with Accepted Servicing Practices and the
requirements under the Mortgage Pool Insurance Policy, to foreclose
upon or otherwise comparably convert (which may include an
acquisition of REO Property) the ownership of properties
securing such of the Mortgage Loans as come into and continue in
default and as to which no satisfactory arrangements can be made
for collection of delinquent payments pursuant to
Section 3.07, and which are not released from this Agreement
pursuant to any other provision hereof. The Servicer shall use
reasonable efforts to realize upon such defaulted Mortgage Loans in
such manner as will maximize the receipt of principal and interest
by the Trustee, taking into account, among other things, the timing
of foreclosure proceedings. The foregoing is subject to the
provisions that, in any case in which a Mortgaged Property shall
have suffered damage from an uninsured cause, the Servicer shall
not be required to expend its own funds toward the restoration of
such property unless it shall determine in its sole discretion
(i) that such restoration will increase the net proceeds of
liquidation of the related Mortgage Loan to the Trustee, after
reimbursement to itself for such expenses, and (ii) that such
expenses will be recoverable by the Servicer through Insurance
Proceeds (including any proceeds under the Mortgage Pool Insurance
Policy), Condemnation Proceeds or Liquidation Proceeds from the
related Mortgaged Property, as contemplated in Section 3.11.
The Servicer shall be responsible for all other costs and expenses
incurred by it in any such proceedings; provided, however, that it
shall be entitled to reimbursement thereof from the related
property, as contemplated in Section 3.11.
In the event that the related First
Lien Mortgage Loan is not being serviced by the Servicer, the
Servicer shall have no liability for any losses resulting from a
foreclosure on a Mortgage Loan in connection with the foreclosure
on the related First Lien Mortgage Loan where the 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 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 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 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 Mortgage Loan
and in no event in an amount that is greater than the then
outstanding principal balance of the related 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
Servicer or any Subservicer for any related unreimbursed Servicing
Advances, pursuant to Section 3.11 or 3.17; second, to
reimburse the Servicer for any related unreimbursed P&I
Advances, pursuant to Section 3.11; third, to accrued and
unpaid interest on the Mortgage Loan or REO Imputed Interest, at
the Mortgage Interest Rate, to the date of the liquidation or REO
Disposition, or to the Due Date prior to the Remittance Date on
which such amounts are to be distributed if not in connection with
a Liquidation Event or REO Disposition; and fourth, as a recovery
of principal of the Mortgage Loan. If the amount of the recovery so
allocated to interest is less than a full recovery thereof, that
amount will be allocated as follows: first, to unpaid Servicing
Fees; and second, as interest at the Mortgage Interest Rate (net of
the Servicing Fee Rate). The portion of the recovery so allocated
to unpaid Servicing Fees shall be reimbursed to the Servicer or any
Subservicer pursuant to Section 3.11 or 3.17. The portions of
any recovery so allocated to interest at the Mortgage Interest Rate
(net of the Servicing Fee Rate) and to principal of the Mortgage
Loan shall be applied as follows: first, to reimburse the Servicer
or any Subservicer for any related unreimbursed Servicing Advances
in accordance with Section 3.11 or 3.17, and second, to the
Trustee in accordance with the provisions of Section 4.02,
subject to the last paragraph of Section 3.17 with respect to
certain excess recoveries from an REO Disposition.
(b) Notwithstanding
anything to the contrary contained in this Agreement, with respect
to any Mortgage Loan that is not a Covered Loan or for which
coverage is not available under the Mortgage Pool Insurance Policy
that is 180 days delinquent, the Servicer shall charge off such
delinquent Mortgage Loan. Once a Mortgage Loan has been charged
off, the Servicer will discontinue making P&I Advances, the
Servicer will not be entitled to any additional servicing
compensation and the Charged Off Loan will give rise to a Realized
Loss. Any such Charged Off Loan will be released from the Trust
Fund on the date such Charged Off Loan becomes 210 days delinquent
(a “Released Loan”), will no longer be an asset of any
REMIC, and will be transferred to the Class X-1 Certificateholders,
without recourse, and thereafter (i) the Class X-1
Certificateholder will be entitled to any amounts subsequently
received in respect of any such Released Loans, (ii) the Class X-1
Certificateholder may designate any servicer to service any such
Released Loan and (iii) the Class X-1
Certificateholder may sell any such
Released Loan to a third party. Once a Mortgage Loan is charged off
pursuant to this Section 3.15(b), the Servicer shall not be
obligated to service such Mortgage Loan. The Servicer may cease any
collection efforts with respect to such Mortgage Loan.
(c) Notwithstanding
anything to the contrary contained herein, in connection with a
foreclosure or acceptance of a deed in lieu of foreclosure, in the
event the Servicer has received actual notice of, or has actual
knowledge of the presence of, hazardous or toxic substances or
wastes on the related Mortgaged Property, or if the Depositor or
the Trustee otherwise requests, the Servicer shall cause an
environmental inspection or review of such Mortgaged Property to be
conducted by a qualified inspector. Upon completion of the
inspection, the Servicer shall promptly provide the Trustee and the
Depositor, with a written report of the environmental
inspection.
After reviewing the environmental
inspection report, the Servicer shall determine consistent with
Accepted Servicing Practices, to proceed with respect to the
Mortgaged Property. In the event (a) the environmental
inspection report indicates that the Mortgaged Property is
contaminated by hazardous or toxic substances or wastes and
(b) the Servicer determines, consistent with Accepted
Servicing Practices, to proceed with foreclosure or acceptance of a
deed in lieu of foreclosure, the Servicer shall be reimbursed for
all reasonable costs associated with such foreclosure or acceptance
of a deed in lieu of foreclosure and any related environmental
clean-up costs, as applicable, from the related Liquidation
Proceeds, or if the Liquidation Proceeds are insufficient to fully
reimburse the Servicer, the Servicer shall be entitled to be
reimbursed from amounts in the Collection Account pursuant to
Section 3.11. In the event the Servicer determines not to
proceed with foreclosure or acceptance of a deed in lieu of
foreclosure, the Servicer shall be reimbursed from general
collections for all Servicing Advances made with respect to the
related Mortgaged Property from the Collection Account pursuant to
Section 3.11. The Trustee shall not be responsible for any
determination made by the Servicer pursuant to this paragraph or
otherwise.
Section
3.16 Release of Mortgage Files
. (a) Upon the payment in full of any Mortgage Loan,
or the receipt by the Servicer of a notification that payment in
full shall be escrowed in a manner customary for such purposes, the
Servicer will, within five (5) Business Days of the payment in
full, notify the Trustee by a certification (which certification
shall include a statement to the effect that all amounts received
or to be received in connection with such payment which are
required to be deposited in the Collection Account pursuant to
Section 3.10 have been or will be so deposited) of a Servicing
Officer and shall request delivery to it of the Custodial File by
completing a Request for Release. Upon receipt of such
certification and Request for Release, the Trustee shall promptly
release the related Custodial File to the Servicer within three (3)
Business Days. No expenses incurred in connection with any
instrument of satisfaction or deed of reconveyance shall be
chargeable to or reimbursed by the Collection Account.
(b) From
time to time and as appropriate for the servicing or foreclosure of
any Mortgage Loan, including, for this purpose, collection under
any insurance policy relating to the Mortgage Loans, the Trustee
shall, upon request of the Servicer and delivery to the Trustee, of
a Request for Release, release the related Custodial File to the
Servicer, and the Trustee shall,
at the direction of the Servicer,
execute such documents provided to it as shall be necessary to the
prosecution of any such proceedings and the Servicer shall retain
the Mortgage File in trust for the benefit of the Trustee. Such
Request for Release shall obligate the Servicer to return each and
every document previously requested from the Custodial File to the
Trustee when the need therefor by the Servicer no longer exists,
unless the Mortgage Loan has been liquidated and the Liquidation
Proceeds relating to the Mortgage Loan have been deposited in the
Collection Account or the Mortgage File or such document has been
delivered to an attorney, or to a public trustee or other public
official as required by law, for purposes of initiating or pursuing
legal action or other proceedings for the foreclosure of the
Mortgaged Property either judicially or non-judicially, and the
Servicer has delivered to the Trustee a certificate of a Servicing
Officer certifying as to the name and address of the Person to
which such Mortgage File or such document was delivered and the
purpose or purposes of such delivery. Upon receipt of a certificate
of a Servicing Officer stating that such Mortgage Loan was
liquidated and that all amounts received or to be received in
connection with such liquidation that are required to be deposited
into the Collection Account have been so deposited, or that such
Mortgage Loan has become an REO Property, a copy of the Request for
Release shall be released by the Trustee to the Servicer or its
designee. Upon receipt of a Request for Release under this
Section 3.16, the Trustee shall deliver the related Custodial
File to the requesting Servicer by overnight courier (at the
Servicer’s expense, which expense shall be reimbursable as a
Servicing Advance.
Upon written certification of a
Servicing Officer, the Trustee shall execute and deliver to the
Servicer copies of any court pleadings, requests for
trustee’s sale or other documents reasonably necessary to the
foreclosure or trustee’s sale in respect of a Mortgaged
Property or to any legal action brought to obtain judgment against
any Mortgagor on the Mortgage Note or Mortgage or to obtain a
deficiency judgment, or to enforce any other remedies or rights
provided by the Mortgage Note or Mortgage or otherwise available at
law or in equity, or shall execute and deliver to the Servicer a
power of attorney sufficient to authorize the Servicer to execute
such documents on its behalf. Each such certification shall include
a request that such pleadings or documents be executed by the
Trustee and a statement as to the reason such documents or
pleadings are required and that the execution and delivery thereof
by the Trustee will not invalidate or otherwise affect the lien of
the Mortgage, except for the termination of such a lien upon
completion of the foreclosure or trustee’s sale.
Section
3.17 Title, Conservation and
Disposition of REO Property . (a) This Section
shall apply only to REO Properties acquired for the account of the
Trustee and shall not apply to any REO Property relating to a
Mortgage Loan which was purchased or repurchased from the Trustee
pursuant to any provision hereof. In the event that title to any
such REO Property is acquired, the Servicer shall cause the
deed or certificate of sale to be issued in the name of the Trustee
on behalf of the Certificateholders, or the Trustee’s
nominee.
(b) The
Servicer shall manage, conserve, protect and operate each
REO Property for the Trustee solely for the purpose of its
prompt disposition and sale. The Servicer, either itself or through
an agent selected by the Servicer, shall manage, conserve, protect
and operate the REO Property in the same manner that it manages,
conserves, protects and operates other foreclosed property for its
own account, and in the same manner that similar property in the
same locality as the REO Property is managed. The Servicer shall
attempt to sell the same (and may temporarily rent the same for a
period not greater than one year, except as
otherwise provided below) on such
terms and conditions as the Servicer deems to be in the best
interest of the Trustee.
(c) The
Servicer shall use Accepted Servicing Practices to dispose of the
REO Property as soon as possible and shall sell such REO Property
in any event within three years after title has been taken to such
REO Property, unless the Servicer determines, and gives an
appropriate notice to the Trustee to such effect, that a longer
period is necessary for the orderly liquidation of such REO
Property, 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) The
Servicer shall segregate and hold all funds collected and received
in connection with the operation of any REO Property separate and
apart from its own funds and general assets and shall deposit such
funds in the Collection Account.
(e) The
Servicer shall deposit net of reimbursement to the Servicer for any
related outstanding Servicing Advances and unpaid Servicing Fees as
provided in Section 3.11, or cause to be deposited, on a daily
basis in the Collection Account all revenues received with respect
to the related REO Property and shall withdraw therefrom funds
necessary for the proper operation, management and maintenance of
the REO Property.
(f) The
Servicer, upon an REO Disposition, shall be entitled to
reimbursement for any related unreimbursed Servicing Advances as
well as any unpaid Servicing Fees from proceeds received in
connection with the REO Disposition, as further provided in
Section 3.11.
(g) Any
net proceeds from an REO Disposition which are in excess of the
unpaid principal balance of the related Mortgage Loan plus all
unpaid REO Imputed Interest thereon through the date of the REO
Disposition shall be retained by the Servicer as additional
servicing compensation.
(h) The
Servicer shall use Accepted Servicing Practices to sell, or cause
the Subservicer to sell, in accordance with Accepted Servicing
Practices, any REO Property as soon as possible, but in no event
later than the conclusion of the third calendar year beginning
after the year of its acquisition by the REMIC unless (i) the
Servicer applies for an extension of such period from the Internal
Revenue Service pursuant to the REMIC Provisions and Code
Section 856(e)(3), in which event such REO Property shall
be sold within the applicable extension period pursuant to the
requirements of Section 3.17(c), or (ii) the Servicer obtains
for the Trustee an Opinion of Counsel, addressed to the Depositor,
the Trustee and the Servicer, to the effect that the holding by the
Lower-Tier REMIC of such REO Property subsequent to such period
will not result in the imposition of taxes on “prohibited
transactions” as defined in Section 860F of the Code or
cause either Trust REMIC to fail to qualify as a REMIC under the
REMIC Provisions or comparable provisions of relevant state laws at
any time. The Servicer shall manage, conserve, protect and operate
each REO Property serviced by the 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 Lower-Tier
REMIC of any “income from non-permitted assets” within
the meaning of Section 860F(a)(2)(B) of the Code or any
“net income from foreclosure property” which is subject
to taxation under Section 860G(a)(1) of the Code. Pursuant to
its efforts to sell such REO Property, the Servicer shall either
itself or through an agent selected by the Servicer protect and
conserve such REO Property in the same manner and to such
extent as is customary in the locality where such REO Property
is located and may, incident to its conservation and protection of
the interests of the Trustee on behalf of the Certificateholders,
rent the same, or any part thereof, as the Servicer deems to be in
the best interest of the Trustee on behalf of the
Certificateholders for the period prior to the sale of such REO
Property; provided, however, that any rent received or accrued with
respect to such REO Property qualifies as “rents from real
property” as defined in Section 856(d) of the
Code.
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Section 3.18
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[RESERVED]
.
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Section
3.19 Access to Certain
Documentation and Information Regarding the Mortgage Loans .
The Servicer shall provide, or cause the applicable Subservicer to
provide, to the Depositor, the Trustee, the Mortgage Pool Insurer,
the OTS or the FDIC and the examiners and supervisory agents
thereof, access to the documentation regarding the Mortgage Loans
in its possession required by applicable regulations of the OTS.
Such access shall be afforded without charge, but only upon 15
days’ (or, if an Event of Default has occurred and is
continuing, 3 Business Days’) prior written request and
during normal business hours at the offices of the Servicer.
Nothing in this Section shall derogate from the obligation of 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 the Servicer to collect, create, collate or otherwise
generate any information that it does not generate in its usual
course of business. The Servicer shall not be required to make
copies of or to ship documents to any Person who is not a party to
this Agreement, and then only if provisions have been made for the
reimbursement of the costs thereof.
Section
3.20 Documents, Records and Funds
in Possession of the Servicer to Be Held for the Trustee . The
Servicer shall account fully to the Trustee for any funds received
by the Servicer or which otherwise are collected by the Servicer as
Liquidation Proceeds, Condemnation Proceeds or Insurance Proceeds
(including any proceeds under the Mortgage Pool Insurance Policy)
in respect of any Mortgage Loan. All Mortgage Files and funds
collected or held by, or under the control of, the Servicer in
respect of any Mortgage Loans, whether from the collection of
principal and interest payments or from Liquidation Proceeds,
including, but not limited to, any funds on deposit in the
Collection Account, shall be held by the Servicer for and on behalf
of the Trustee and shall be and remain the sole and exclusive
property of the Trustee, subject to the applicable provisions of
this Agreement. The Servicer also agrees that it shall not create,
incur or subject any Mortgage File or any funds that are deposited
in the Collection Account, the Distribution Account or any funds
that otherwise are or may become due or payable to the Trustee for
the benefit of the Certificateholders, to any claim, lien, security
interest, judgment, levy, writ of attachment or other encumbrance,
or assert by legal action or otherwise
any claim or right of setoff against
any Mortgage File or any funds collected on, or in connection with,
a Mortgage Loan, except, however, that the Servicer shall be
entitled to set off against and deduct from any such funds any
amounts that are properly due and payable to the Servicer under
this Agreement.
Section
3.21 Servicing Compensation
. (a) As compensation for its activities hereunder,
the Servicer shall, with respect to each Mortgage Loan, be entitled
to retain from deposits to the Collection Account and from
Liquidation Proceeds, Insurance Proceeds (including any proceeds
under the Mortgage Pool Insurance Policy), and Condemnation
Proceeds related to such Mortgage Loan, the Servicing Fee with
respect to each Mortgage Loan (less any portion of such amounts
retained by any Subservicer). In addition, the Servicer shall be
entitled to recover unpaid Servicing Fees out of related Late
Collections and o 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 Servicer’s responsibilities
and obligations under this Agreement; provided, however, that the
Servicer may pay from the Servicing Fee any amounts due to a
Subservicer pursuant to a Subservicing Agreement entered into under
Section 3.02.
(b) Additional
servicing compensation in the form of assumption or modification
fees, late payment charges, NSF fees, reconveyance fees and other
similar fees and charges (other than Prepayment Premiums) shall be
retained by the Servicer only to the extent such fees or charges
are received by the Servicer. The Servicer shall also be entitled
pursuant to Section 3.11(a)(iv) to withdraw from the
Collection Account, as additional servicing compensation, interest
or other income earned on deposits therein.
(c) Except
as otherwise provided in this Agreement, the Servicer shall be
required to pay all expenses incurred by it in connection with its
servicing activities hereunder (including payment of premiums for
any blanket policy insuring against hazard losses pursuant to
Section 3.13, servicing compensation of the Subservicer to the
extent not retained by it and the fees and expenses of independent
accountants and any agents appointed by the Servicer), and shall
not be entitled to reimbursement therefor except as specifically
provided in Section 3.11.
Section
3.22 Annual Statement as to
Compliance . The Servicer will deliver or cause
to be delivered to the Depositor, the Rating Agencies, and the
Trustee on or before March 15th of each calendar year
commencing in 2006, an Officer’s Certificate stating, as to
each signatory thereof, that (i) a review of the activities of
the Servicer during the preceding calendar year and of performance
under this Agreement or a similar agreement has been made under
such officers’ supervision, and (ii) to the best of such
officers’ knowledge, based on such review, the Servicer has
fulfilled all of its obligations under this Agreement throughout
such year, or, if there has been a default in the fulfillment of
any such obligation, specifying each such default known to such
officers and the nature and status thereof. Promptly after receipt
of such Officer’s Certificate, the Depositor shall review
such Officer’s Certificate and, if applicable, consult with
the Servicer as to the nature of any defaults by the Servicer in
the fulfillment of any of the Servicer’s obligations. The
obligations of the Servicer under this Section apply to each
Servicer that serviced during the applicable period, whether or not
the 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,
the Servicer, at its expense, shall cause a nationally recognized
firm of independent certified public accountants to furnish to the
Depositor, the Rating Agencies, and the Trustee a report stating
that (i) it has obtained a letter of representation regarding
certain matters from the management of the Servicer which includes
an assertion that the Servicer has complied with certain minimum
residential mortgage loan servicing standards, identified in the
Uniform Single Attestation Program for Mortgage Bankers established
by the Mortgage Bankers Association of America, with respect to the
servicing of residential mortgage loans during the most recently
completed calendar year and (ii) on the basis of an
examination conducted by such firm in accordance with standards
established by the American Institute of Certified Public
Accountants, such representation is fairly stated in all material
respects, subject to such exceptions and other qualifications that
may be appropriate. In rendering its report such firm may rely, as
to matters relating to the direct servicing of residential mortgage
loans by Subservicers, upon comparable reports of firms of
independent certified public accountants rendered on the basis of
examinations conducted in accordance with the same standards
(rendered within one year of such report) with respect to those
Subservicers. Promptly after receipt of such report, the Depositor
shall review such report and, if applicable, consult with the
Servicer as to the nature of any defaults by the Servicer in the
fulfillment of any of the Servicer’s obligations. The
obligations of the Servicer under this Section apply to each
Servicer that serviced during the applicable period, whether or not
the 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 the Servicer
shall for any reason no longer be the Servicer hereunder (including
by reason of an Event of Default), the Trustee or its successor
shall, thereupon assume all of the rights and obligations of the
Servicer hereunder arising thereafter (except that the Trustee
shall not be (i) liable for losses of the predecessor Servicer
pursuant to Section 3.10 or any acts or omissions of the
predecessor Servicer hereunder, (ii) obligated to make
Advances if it is prohibited from doing so by applicable law,
(iii) obligated to effectuate repurchases or substitutions of
Mortgage Loans hereunder, including but not limited to repurchases
or substitutions pursuant to Section 2.03,
(iv) responsible for expenses of the Servicer pursuant to
Section 2.03 or (v) deemed to have made any
representations and warranties of the Servicer hereunder). Any such
assumption shall be subject to Section 7.02.
(b) Every
Subservicing Agreement entered into by the Servicer shall contain a
provision giving the successor Servicer the option to terminate
such agreement in the event a successor Servicer is
appointed.
(c) If
the Servicer shall for any reason no longer be the Servicer
(including by reason of any Event of Default), the Trustee (or any
other successor Servicer) may, at its option, succeed to any rights
and obligations of the Servicer under any Subservicing Agreement in
accordance with the terms thereof; provided, that the Trustee (or
any other successor Servicer) shall not incur any liability or have
any obligations in its capacity as successor Servicer under a
Subservicing Agreement arising prior to the date of such succession
unless it expressly elects to succeed to the rights and obligations
of the Servicer thereunder; and the Servicer shall not
thereby be relieved of any liability
or obligations under the Subservicing Agreement arising prior to
the date of such succession.
(d) The
Servicer shall, upon request of the Trustee, but at the expense of
the Servicer, deliver to the assuming party all documents and
records relating to each Subservicing Agreement (if any) 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
. The Servicer shall remit to the Trustee on each
Remittance Date an amount from its own funds equal to Compensating
Interest payable by the Servicer for such Remittance
Date.
Section
3.26 Credit Reporting;
Gramm-Leach-Bliley Act . (a) With respect to each
Mortgage Loan, the Servicer shall fully furnish, in accordance with
the Fair Credit Reporting Act and its implementing regulations,
accurate and complete information (e.g., favorable and unfavorable)
on the related Mortgagor credit files to Equifax, Experian and
TransUnion 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 any Basis Risk
Payment and to pay to the LIBOR Certificateholders any Basis Risk
Carry Forward Amounts.
On each Distribution Date on which
there exists a Basis Risk Carry Forward Amount on any Class of
LIBOR 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)(J), the lesser
of the Class X Distributable Amount (to the extent remaining
after the distributions specified in
Sections 4.02(a)(iii)(A)-(I)) 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
LIBOR Certificates the applicable Basis Risk Carry Forward Amounts.
Such payments shall be allocated to those Classes based upon the
amount of Basis Risk Carry Forward Amount owed to each such Class
and shall be paid in the priority set forth in
Sections 4.02(a)(iii)(K). 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 outside reserve fund within the
meaning of Treasury Regulations Section 1.860G-2(h) and not as
an asset of either Trust REMIC created pursuant to this Agreement.
The beneficial owners of the Excess Reserve Fund Account are the
Class X Certificateholders. For all federal income tax
purposes, amounts transferred by the Upper-Tier REMIC to the Excess
Reserve Fund Account shall be treated as first distributed by the
Trustee to the Class X Certificateholders in respect of the
Class X Interest, and then contributed by the Class X
Certificateholders to the Excess Reserve Fund Account.
Any Basis Risk Carry Forward Amounts
paid by the Trustee to the LIBOR Certificateholders shall be
accounted for by the Trustee as amounts paid first to the Holders
of the Class X Certificates and then to the respective Class
or Classes of LIBOR Certificates. In addition, the Trustee shall
account for the rights of Holders of each Class of LIBOR
Certificates to receive payments of Basis Risk Carry Forward
Amounts as rights in a separate limited recourse interest rate cap
contract written by the Class X Certificateholders in favor of
Holders of each such Class.
Notwithstanding any provision
contained in this Agreement, the Trustee shall not be required to
make any payments from the Excess Reserve Fund Account except as
expressly set forth in this Section 3.27(a).
(b) The
Trustee shall establish and maintain the Distribution Account on
behalf of the Certificateholders. The Trustee shall, promptly upon
receipt on the Business Day received, deposit in the Distribution
Account and retain therein the following:
(i) the
aggregate amount remitted by the Servicer to the Trustee pursuant
to Section 3.11;
(ii) any
amount deposited by the Servicer pursuant to Section 3.12(b)
in connection with any losses on Permitted Investments;
(iii) amounts
received from the Mortgage Pool Insurer under the Mortgage Pool
Insurance Policy; 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
Distr
