EXECUTION COPY
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GMAC MORTGAGE CORPORATION
as Servicer,
GMACM HOME LOAN TRUST 2006-HLTV1,
as Issuer
and
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
as Indenture Trustee
_________________________
SERVICING AGREEMENT
Dated as of March 30, 2006
_________________________
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TABLE OF CONTENTS
Page
ARTICLE I Definitions.......................................................2
Section 1.01 Definitions.......................................................2
Section 1.02 Other Definitional Provisions.....................................2
Section 1.03 Interest Calculations.............................................3
ARTICLE II Representations and Warranties....................................3
Section 2.01 Representations and Warranties Regarding the Servicer.............3
Section 2.02 Representations and Warranties of the Issuer......................4
Section 2.03 Enforcement of Representations and Warranties.....................4
ARTICLE III Administration and Servicing of Home Loans........................6
Section 3.01 The Servicer......................................................6
Section 3.02 Collection of Certain Home Loan Payments..........................8
Section 3.03 Withdrawals from the Custodial Account...........................11
Section 3.04 Maintenance of Hazard Insurance; Property Protection Expenses....12
Section 3.05 Modification Agreements; Release or Substitution of Lien.........13
Section 3.06 Trust Estate; Related Documents..................................15
Section 3.07 Realization Upon Defaulted Home Loans; Loss Mitigation...........15
Section 3.08 Issuer and Indenture Trustee to Cooperate........................17
Section 3.09 Servicing Compensation; Payment of Certain Expenses by
Servicer.........................................................18
Section 3.10 Annual Statement as to Compliance................................18
Section 3.11 Annual Independent Public Accountants' Servicing Report..........19
Section 3.12 Access to Certain Documentation and Information Regarding
the Home Loans...................................................19
Section 3.13 Maintenance of Certain Servicing Insurance Policies..............19
Section 3.14 Information Required by the Internal Revenue Service and
Reports of Foreclosures and Abandonments of Mortgaged
Property.........................................................19
Section 3.15 Optional Repurchase or Transfer of Home Loans....................20
Section 3.16 [Reserved].......................................................21
Section 3.17 [Reserved].......................................................21
Section 3.18 [Reserved].......................................................21
Section 3.19 Enforcement of Due-on-Sale Clauses; Assumption and
Modification Agreements; Certain Assignments.....................21
Section 3.20 Advance Facility.................................................22
ARTICLE IV Servicing Certificate............................................24
Section 4.01 Statements to Securityholders....................................24
Section 4.02 Exchange Act Reporting...........................................27
ARTICLE V Note Payment Account.............................................28
Section 5.01 Note Payment Account.............................................28
ARTICLE VI The Servicer.....................................................29
Section 6.01 Liability of the Servicer........................................29
Section 6.02 Merger or Consolidation of, or Assumption of the Obligations
of, the Servicer.................................................29
Section 6.03 Limitation on Liability of the Servicer and Others...............29
Section 6.04 Servicer Not to Resign...........................................30
Section 6.05 Delegation of Duties.............................................30
Section 6.06 Payment of Indenture Trustee's and Owner Trustee's Fees and
Expenses; Indemnification........................................31
ARTICLE VII Default..........................................................33
Section 7.01 Servicing Default................................................33
Section 7.02 Indenture Trustee to Act; Appointment of Successor...............34
Section 7.03 Notification to Securityholders..................................36
ARTICLE VIII Miscellaneous Provisions.........................................37
Section 8.01 Amendment........................................................37
Section 8.02 GOVERNING LAW....................................................37
Section 8.03 Notices..........................................................37
Section 8.04 Severability of Provisions.......................................37
Section 8.05 Third-Party Beneficiaries........................................38
Section 8.06 Counterparts.....................................................38
Section 8.07 Effect of Headings and Table of Contents.........................38
Section 8.08 Termination Upon Purchase by the Servicer or Liquidation of
All Home Loans; Partial Redemption...............................38
Section 8.09 Certain Matters Affecting the Indenture Trustee..................39
Section 8.10 Owner Trustee Not Liable for Related Documents...................39
ARTICLE IX Compliance With Regulation AB....................................40
Section 9.01 Intent of the Parties; Reasonableness............................40
Section 9.02 Additional Representations and Warranties of the Indenture
Trustee..........................................................40
Section 9.03 Information to Be Provided by the Indenture Trustee..............41
Section 9.04 Report on Assessment of Compliance and Attestation...............41
Section 9.05 Indemnification; Remedies........................................42
TABLE OF CONTENTS
(CONTINUED)
EXHIBIT A - HOME LOAN SCHEDULE A-1
EXHIBIT B - LIMITED POWER OF ATTORNEY B-1
EXHIBIT C - FORM OF REQUEST FOR RELEASE C-1
This Servicing Agreement, dated as of March 30, 2006 (the "Agreement"), is among GMAC
Mortgage Corporation, as servicer (the "Servicer"), the GMACM Home Loan Trust 2006-HLTV1, as
issuer (the "Issuer"), and JPMorgan Chase Bank, as indenture trustee (the "Indenture
Trustee").
WITNESSETH:
WHEREAS, pursuant to the terms of the Purchase Agreement (as defined herein), GMAC
Mortgage Corporation, as seller (in such capacity, "GMACM") and as servicer and Walnut Grove
Mortgage Loan Trust 2003-A, as seller ("WG Trust" and together with GMACM, the "Sellers"),
will sell to Residential Asset Mortgage Products, Inc. ("RAMP"), as purchaser (in such
capacity, the "Purchaser"), the Home Loans on the Closing Date, in each case together with
the Related Documents on the Closing Date;
WHEREAS, RAMP, as depositor (in such capacity, the "Depositor"), will sell the Home
Loans and assign all of its rights under the Purchase Agreement to the Issuer, together with
the Related Documents on the Closing Date;
WHEREAS, pursuant to the terms of the Trust Agreement, the Issuer will issue the
Certificates;
WHEREAS, pursuant to the terms of the Indenture, the Issuer will issue the Notes; and
WHEREAS, pursuant to the terms of this Agreement, the Servicer will service the Home
Loans directly or through one or more Subservicers.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
ARTICLE I
Definitions
Section 1.01 Definitions. For all purposes of this Agreement, except as otherwise
expressly provided herein or unless the context otherwise requires, capitalized terms not
otherwise defined herein shall have the meanings assigned to such terms in the Definitions
contained in Appendix A to the indenture dated as of March 30, 2006 (the "Indenture"),
between the Issuer and the Indenture Trustee, which is incorporated by reference herein.
All other capitalized terms used herein shall have the meanings specified herein.
Section 1.02 Other Definitional Provisions.
(a) All terms defined in this Agreement shall have the defined meanings when used in any
certificate or other document made or delivered pursuant hereto unless otherwise defined
therein.
(b) As used in this Agreement and in any certificate or other document made or delivered
pursuant hereto or thereto, accounting terms not defined in this Agreement or in any such
certificate or other document, and accounting terms partly defined in this Agreement or in
any such certificate or other document, to the extent not defined, shall have the respective
meanings given to them under generally accepted accounting principles. To the extent that
the definitions of accounting terms in this Agreement or in any such certificate or other
document are inconsistent with the meanings of such terms under generally accepted
accounting principles, the definitions contained in this Agreement or in any such
certificate or other document shall control.
(c) The words "hereof," "herein," "hereunder" and words of similar import when used in
this Agreement shall refer to this Agreement as a whole and not to any particular provision
of this Agreement; Section and Exhibit references contained in this Agreement are references
to Sections and Exhibits in or to this Agreement unless otherwise specified; the term
"including" shall mean "including without limitation"; "or" shall include "and/or"; and the
term "proceeds" shall have the meaning ascribed thereto in the UCC.
(d) The definitions contained in this Agreement are applicable to the singular as well as
the plural forms of such terms and to the masculine as well as the feminine and neuter
genders of such terms.
(e) Any agreement, instrument or statute defined or referred to herein or in any
instrument or certificate delivered in connection herewith means such agreement, instrument
or statute as from time to time amended, modified or supplemented and includes (in the case
of agreements or instruments) references to all attachments thereto and instruments
incorporated therein; references to a Person are also to its permitted successors and
assigns.
Section 1.03 Interest Calculations. All calculations of interest hereunder that are made
in respect of the Principal Balance of a Home Loan shall be made under an actuarial interest
method. All calculations of interest on the Notes, other then the Class A-1 Notes, shall be
made on the basis of a 30-day month and a year assumed to consist of 360 days. All
calculations of interest on the Class A-1 Notes shall be made on the basis of the actual
number of days in an Interest Period and a year assumed to consist of 360-days . The
calculation of the Servicing Fee shall be made on the basis of a 360-day year consisting of
twelve 30-day months. All dollar amounts calculated hereunder shall be rounded to the
nearest xxxxx with one-half of one xxxxx being rounded up.
ARTICLE II
Representations and Warranties
Section 2.01 Representations and Warranties Regarding the Servicer. The Servicer
represents and warrants to the Issuer and for the benefit of the Indenture Trustee, as
pledgee of the Home Loans, as of the Closing Date:
(a) the Servicer is a corporation duly organized, validly existing and in good standing
under the laws of the Commonwealth of Pennsylvania and has the corporate power to own its
assets and to transact the business in which it is currently engaged. The Servicer is duly
qualified to do business as a foreign corporation and is in good standing in each
jurisdiction in which the character of the business transacted by it or properties owned or
leased by it requires such qualification and in which the failure to so qualify would have a
material adverse effect (not in the ordinary course of business) on the business,
properties, assets, or condition (financial or other) of the Servicer;
(b) the Servicer has the power and authority to make, execute, deliver and perform this
Agreement and all of the transactions contemplated under this Agreement, and has taken all
necessary corporate action to authorize the execution, delivery and performance of this
Agreement. When executed and delivered, this Servicing Agreement will constitute the legal,
valid and binding obligation of the Servicer enforceable in accordance with its terms,
except as enforcement of such terms may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally and by the availability of
equitable remedies;
(c) the Servicer is not required to obtain the consent of any other Person or any
consent, license, approval or authorization from, or registration or declaration with, any
governmental authority, bureau or agency in connection with the execution, delivery,
performance, validity or enforceability of this Agreement, except for such consent, license,
approval or authorization, or registration or declaration, as shall have been obtained or
filed, as the case may be;
(d) the execution and delivery of this Agreement and the performance of the transactions
contemplated hereby by the Servicer will not violate any material provision of any existing
law or regulation or any order or decree of any court applicable to the Servicer or any
provision of the Articles of Incorporation or Bylaws of the Servicer, or constitute a
material breach of any material mortgage, indenture, contract or other agreement to which
the Servicer is a party or by which the Servicer may be bound;
(e) no litigation or administrative proceeding of or before any court, tribunal or
governmental body is currently pending, or to the knowledge of the Servicer threatened,
against the Servicer or any of its properties or with respect to this Agreement or the
Securities which in the opinion of the Servicer has a reasonable likelihood of resulting in
a material adverse effect on the transactions contemplated by this Agreement;
(f) the Servicer is a member of MERS in good standing, and will comply in all material
respects with the rules and procedures of MERS in connection with the servicing of the Home
Loans that are registered with MERS; and
(g) the servicing of the Home Loans has at all times been conducted in material
compliance with all applicable federal, state and local laws, rules and regulations and
there has been no material violation of any such laws, rules or regulations arising out of
the servicing of the Home Loans.
The foregoing representations and warranties shall survive any termination of the
Servicer hereunder.
Section 2.02 Representations and Warranties of the Issuer. The Issuer hereby represents
and warrants to the Servicer and for the benefit of the Indenture Trustee, as pledgee of the
Home Loans, as of the Closing Date:
(a) the Issuer is a statutory trust duly formed and in good standing under the laws of
the State of Delaware and has full power, authority and legal right to execute and deliver
this Agreement and to perform its obligations under this Agreement, and has taken all
necessary action to authorize the execution, delivery and performance by it of this
Agreement; and
(b) the execution and delivery by the Issuer of this Agreement and the performance by the
Issuer of its obligations under this Agreement will not violate any provision of any law or
regulation governing the Issuer or any order, writ, judgment or decree of any court,
arbitrator or governmental authority or agency applicable to the Issuer or any of its
assets. Such execution, delivery, authentication and performance will not require the
authorization, consent or approval of, the giving of notice to, the filing or registration
with, or the taking of any other action with respect to, any governmental authority or
agency regulating the activities of limited liability companies. Such execution, delivery,
authentication and performance will not conflict with, or result in a breach or violation
of, any mortgage, deed of trust, lease or other agreement or instrument to which the Issuer
is bound.
Section 2.03 Enforcement of Representations and Warranties. The Servicer, on behalf of and
subject to the direction of the Indenture Trustee, as pledgee of the Home Loans, or the
Issuer, shall enforce the representations and warranties of GMAC Mortgage Corporation or WG
Trust pursuant to the Purchase Agreement. Upon the discovery by the Sellers, the Depositor,
the Servicer, the Indenture Trustee, the Credit Enhancer, the Issuer, or the Custodian of a
breach of any of the representations and warranties made by either GMAC Mortgage Corporation
or WG Trust in the Purchase Agreement, in respect of any Home Loan which materially and
adversely affects the interests of the Securityholders or the Credit Enhancer, the party
discovering such breach shall give prompt written notice to the other parties (the Custodian
being so obligated under the Custodial Agreement). The Servicer shall promptly notify
either GMAC Mortgage Corporation or WG Trust, as applicable, of such breach and request
that, pursuant to the terms of the Purchase Agreement, the respective party either (i) cure
such breach in all material respects within 90 days from the date such party was notified of
such breach or (ii) purchase such Home Loan from the Issuer at the price and in the manner
set forth in Section 3.1(e) of the Purchase Agreement; provided, that either GMAC Mortgage
Corporation or WG Trust shall, subject to the conditions set forth in the Purchase
Agreement, have the option to substitute an Eligible Substitute Loan or Loans for such Home
Loan. In the event that either GMAC Mortgage Corporation or WG Trust elects to substitute
one or more Eligible Substitute Loans pursuant to Section 3.1(e) of the Purchase Agreement,
such party shall deliver to the Custodian or the Servicer, in accordance with the Purchase
Agreement, with respect to such Eligible Substitute Loans, the original Mortgage Note, the
Mortgage, and such other documents and agreements as are required by the Purchase
Agreement. Payments due with respect to Eligible Substitute Loans in the month of
substitution shall not be transferred to the Issuer and will be retained by the Servicer and
remitted by the Servicer to such party on the next succeeding Payment Date except to the
extent that a payment less than the applicable Monthly Payment has been received by the
Issuer for such month in respect of the Home Loan to be removed. The Servicer shall amend
or cause to be amended the Home Loan Schedule to reflect the removal of such Home Loan and
the substitution of the Eligible Substitute Loans and the Servicer shall promptly deliver
the amended Home Loan Schedule to the Owner Trustee and Indenture Trustee.
It is understood and agreed that the obligation of GMAC Mortgage Corporation and WG
Trust to cure such breach or purchase or substitute for such Home Loan as to which such a
breach has occurred and is continuing shall constitute the sole remedy respecting such
breach available to the Issuer and the Indenture Trustee, as pledgee of the Home Loans,
against either GMAC Mortgage Corporation or WG Trust. In connection with the purchase of or
substitution for any such Home Loan by either GMAC Mortgage Corporation or WG Trust, the
Issuer shall assign to such party all of its right, title and interest in respect of the
Purchase Agreement applicable to such Home Loan. Upon receipt of the Repurchase Price, or
upon completion of such substitution, the Servicer shall notify the Custodian, and the
Custodian shall deliver the Mortgage Notes to the Servicer, together with all relevant
endorsements and assignments prepared by the Servicer that the Indenture Trustee shall
execute.
ARTICLE III
Administration and Servicing of Home Loans
Section 3.01 The Servicer.
(a) The Servicer shall service and administer the Home Loans in a manner generally
consistent with the terms of the Program Guide and in a manner consistent with the terms of
this Agreement and that shall be normal and usual in its general mortgage servicing
activities, including but not limited to reporting of its borrower credit files to credit
repositories in a timely manner. The Servicer shall have full power and authority, acting
alone or through a Subservicer, to do any and all things in connection with such servicing
and administration which it may deem necessary or desirable, it being understood, however,
that the Servicer shall at all times remain responsible to the Issuer and the Indenture
Trustee, as pledgee of the Home Loans, for the performance of its duties and obligations
hereunder in accordance with the terms hereof and the Program Guide. Without limiting the
generality of the foregoing, the Servicer shall continue, and is hereby authorized and
empowered by the Issuer and the Indenture Trustee, as pledgee of the Home Loans, to execute
and deliver, on behalf of itself, the Issuer, the Indenture Trustee or any of them, 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 Home Loans and the Mortgaged
Properties. The Issuer, the Indenture Trustee and the Custodian, as applicable, shall
furnish the Servicer with any powers of attorney and other documents necessary or
appropriate to enable the Servicer to carry out its servicing and administrative duties
hereunder. In addition, the Servicer may, at its own discretion and on behalf of the
Indenture Trustee, obtain credit information in the form of a "credit score" from a credit
repository. On the Closing Date, the Indenture Trustee shall deliver to the Servicer a
limited power of attorney substantially in the form of Exhibit B hereto. The Servicer is
further authorized and empowered by the Issuer and the Indenture Trustee, on behalf of the
Noteholders and the Indenture Trustee, in its own name or in the name of the Subservicer,
when the Servicer or the Subservicer, as the case may be, believes it appropriate in its
best judgment to register any Home Loan on the MERS(R)System, or cause the removal from the
registration of any Home Loan on the MERS(R)System, to execute and deliver, on behalf of the
Indenture Trustee and the Noteholders or any of them, any and all instruments of assignment
and other comparable instruments with respect to such assignment or re-recording of a
Mortgage in the name of MERS, solely as nominee for the Indenture Trustee and its successors
and assigns. The Indenture Trustee shall have no ongoing responsibility to check the status
if the Home Loans or the Mortgages on the MERS(R)System. Any expenses incurred in connection
with the actions described in the preceding sentence shall be borne by the Servicer, with no
right of reimbursement.
If the Mortgage did not have a Lien senior to the related Home Loan on the
related Mortgaged Property as of the related Cut-Off Date, then the Servicer, in such
capacity, may not consent to the placing of a Lien senior to that of the Mortgage on the
related Mortgaged Property. If the Mortgage had a Lien senior to the related Home Loan on
the related Mortgaged Property as of the related Cut-Off Date, then the Servicer, in such
capacity, may consent to the refinancing of such prior senior Lien, provided that the
following requirements are met:
(i) (A) the Mortgagor's debt-to-income ratio resulting from such
refinancing is less than the original debt-to-income ratio as set forth on the Home Loan
Schedule and, in the event that the resulting CLTV of such Home Loan increases by more than
10% above the CLTV prior to such refinancing, the Servicer shall obtain the prior consent of
the Credit Enhancer, which consent shall not be unreasonably withheld; provided, however,
that in no instance shall the resulting CLTV of such Home Loan be higher than that permitted
by the Program Guide; or
(B) the resulting CLTV of such Home Loan is no higher than the greater of the CLTV prior
to such refinancing and 70% (or 80% for borrowers with a FICO "credit score" of 690 or
higher); provided, however, if such refinanced mortgage loan is a "rate and term" mortgage
loan (meaning, the Mortgagor does not receive any cash from the refinancing), the CLTV may
increase to the extent of either (a) the reasonable closing costs of such refinancing or (b)
any decrease in the value of the related Mortgaged Property, if the Mortgagor is in good
standing as defined by the Program Guide;
(ii) the interest rate, or, in the case of an adjustable rate existing senior Lien, the
maximum interest rate, for the loan evidencing the refinanced senior Lien is no higher than
the interest rate or the maximum interest rate, as the case may be, on the loan evidencing
the existing senior Lien immediately prior to the date of such refinancing; provided,
however (a) if the loan evidencing the existing senior Lien prior to the date of refinancing
has an adjustable rate and the loan evidencing the refinanced senior Lien has a fixed rate,
then the current interest rate on the loan evidencing the refinanced senior Lien may be up
to 2.0% higher than the then-current loan rate of the loan evidencing the existing senior
Lien and (b) if the loan evidencing the existing senior Lien prior to the date of
refinancing has a fixed rate and the loan evidencing the refinanced senior Lien has an
adjustable rate, then the maximum interest rate on the loan evidencing the refinanced senior
Lien shall be less than or equal to (x) the interest rate on the loan evidencing the
existing senior Lien prior to the date of refinancing plus (y) 2.0%; and
(iii) the loan evidencing the refinanced senior Lien is not subject to negative
amortization.
The relationship of the Servicer (and of any successor to the Servicer as servicer
under this Agreement) to the Issuer under this Agreement is intended by the parties to be
that of an independent contractor and not that of a joint venturer, partner or agent.
(b) The Servicer may enter into Subservicing Agreements with Subservicers for the
servicing and administration of certain of the Home Loans. References in this Agreement to
actions taken or to be taken by the Servicer in servicing the Home Loans include actions
taken or to be taken by a Subservicer on behalf of the Servicer and any amount actually
received by such Subservicer in respect of a Home Loan shall be deemed to have been received
by the Servicer whether or not actually received by the Servicer. Each Subservicing
Agreement will be upon such terms and conditions as are not inconsistent with this Agreement
and as the Servicer and the Subservicer have agreed. With the approval of the Servicer, a
Subservicer may delegate its servicing obligations to third-party servicers, but such
Subservicers will remain obligated under the related Subservicing Agreements. The Servicer
and the Subservicer may enter into amendments to the related Subservicing Agreements;
provided, however, that any such amendments shall not cause the Home Loans to be serviced in
a manner that would be materially inconsistent with the standards set forth in this
Agreement. The Servicer shall be entitled to terminate any Subservicing Agreement in
accordance with the terms and conditions thereof and without any limitation by virtue of
this Agreement; provided, however, that in the event of termination of any Subservicing
Agreement by the Servicer or the Subservicer, the Servicer shall either act as servicer of
the related Home Loan or enter into a Subservicing Agreement with a successor Subservicer
which will be bound by the terms of the related Subservicing Agreement. The Servicer shall
be entitled to enter into any agreement with a Subservicer for indemnification of the
Servicer and nothing contained in this Agreement shall be deemed to limit or modify such
indemnification.
In the event that the rights, duties and obligations of the Servicer are terminated
hereunder, any successor to the Servicer in its sole discretion may, to the extent permitted
by applicable law, terminate the existing Subservicing Agreement with any Subservicer in
accordance with the terms of the applicable Subservicing Agreement or assume the terminated
Servicer's rights and obligations under such subservicing arrangements which termination or
assumption will not violate the terms of such arrangements.
As part of its servicing activities hereunder, the Servicer, for the benefit of the
Indenture Trustee, the Credit Enhancer and the Securityholders, shall use reasonable efforts
to enforce the obligations of each Subservicer under the related Subservicing Agreement, to
the extent that the non-performance of any such obligation would have a material adverse
effect on a Home Loan. 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 Home 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 Home Loan or (ii) from a specific recovery of costs, expenses or
attorneys fees against the party against whom such enforcement is directed.
(c) All other documents contained in the Mortgage File and any original documents
relating to the Home Loans not contained in the Mortgage File or delivered to the Custodian,
if any, or the Indenture Trustee are and shall be held by the Servicer in trust as agent for
the Indenture Trustee on behalf of the Noteholders.
Section 3.02 Collection of Certain Home Loan Payments.
(a) The Servicer shall make reasonable efforts to collect all payments called for under
the terms and provisions of the Home Loans, and shall, to the extent such procedures shall
be consistent with this Agreement and generally consistent with the Program Guide, follow
such collection procedures as shall be normal and usual in its general mortgage servicing
activities. Consistent with the foregoing, and without limiting the generality of the
foregoing, the Servicer may in its discretion (i) waive any late payment charge, penalty
interest or other fees which may be collected in the ordinary course of servicing a Home
Loan and (ii) arrange with a Mortgagor a schedule for the payment of principal and interest
due and unpaid; provided, that such arrangement is consistent with the Servicer's policies
with respect to home equity mortgage loans; and provided further, that notwithstanding such
arrangement, such Home Loans will be included in the information regarding delinquent Home
Loans set forth in the Servicing Certificate. The Servicer may also extend the Due Date for
payment due on a Home Loan in accordance with the Program Guide; provided, however, that the
Servicer shall first determine that any such waiver or extension will not impair the
coverage of any related insurance policy or materially adversely affect the Lien of the
related Mortgage or the interests of the Securityholders or the Credit Enhancer. Consistent
with the terms of this Agreement, the Servicer may also:
(i) waive, modify or vary any term of any Home Loan;
(ii) consent to the postponement of strict compliance with any such term or in any manner
grant indulgence to any Mortgagor;
(iii) arrange with a Mortgagor a schedule for the payment of principal and interest due and
unpaid;
(iv) forgive any portion of the amounts contractually owed under the Home Loan;
(v) capitalize past due amounts owed under the Home Loan by adding any amounts in
arrearage to the existing principal balance of the Home Loan (a "Capitalization Workout")
which will result in an increased Monthly Payment amount, provided that: (A) the amount
added to the existing principal balance of the Home Loan (the "Capitalized Amount") shall be
no greater than five times the Mortgagor's current Monthly Payment amount; and (B) the
Servicer shall not enter into a Capitalization Workout unless the CLTV of the Home Loan
prior to the Capitalization Workout equals or exceeds 80% and the Mortgagor has qualified
for the Capitalization Workout under the Servicer's servicing guidelines; or
(vi) reset the due date for the Home Loan;
or any combination of the foregoing, if in the Servicer's determination such waiver,
modification, postponement or indulgence is not materially adverse to the interests of the
Securityholders or the Credit Enhancer; provided, however, that the Servicer may not modify
or permit any Subservicer to modify any Home Loan (including without limitation any
modification that would change the Loan Rate, forgive the payment of any principal or
interest (unless in connection with the liquidation of the related Home Loan) or extend the
final maturity date of such Home Loan) unless such Home Loan is in default or, in the
judgment of the Servicer, such default is reasonably foreseeable. Notwithstanding the
foregoing, any permitted extension of the final maturity date of a Home Loan shall not
exceed the end of the Collection Period preceding the Final Payment Date. The general terms
of any waiver, modification, postponement or indulgence with respect to any of the Home
Loans will be included in the Servicing Certificate, and such Home Loans will not be
considered "delinquent" for the purposes of the Basic Documents so long as the Mortgagor
complies with the terms of such waiver, modification, postponement or indulgence.
(b) The Servicer shall establish a Custodial Account, which shall be an Eligible Account,
titled "GMACM Home Loan Trust 2006-HLTV1," in which the Servicer shall deposit or cause to
be deposited any amounts representing payments and collections in respect of the Home Loans
received by it subsequent to or on the Cut-Off Date, including the following payments and
collections received or made by it (without duplication):
(i) all payments of principal of or interest on the Home Loans received or advanced by
the Servicer, net of any portion of the interest thereof retained by any Subservicer as
subservicing fees;
(ii) the aggregate Repurchase Price of the Home Loans purchased by the Servicer pursuant
to Section 3.15;
(iii) Net Liquidation Proceeds, net of any related Foreclosure Profit and all Recovery
Amounts;
(iv) all proceeds of any Home Loans repurchased by the Seller pursuant to the Purchase
Agreement, and all Substitution Adjustment Amounts required to be deposited in connection
with the substitution of an Eligible Substitute Loan pursuant to the Purchase Agreement;
(v) Insurance Proceeds, other than Net Liquidation Proceeds, resulting from any insurance
policy maintained on a Mortgaged Property; and
(vi) amounts required to be paid by the Servicer pursuant to Section 8.08;
provided, however, that with respect to each Collection Period, the Servicer shall be
permitted to retain from payments in respect of interest on the Home Loans, the Servicing
Fee for such Collection Period. The foregoing requirements respecting deposits to the
Custodial Account are exclusive, it being understood that, without limiting the generality
of the foregoing, the Servicer need not deposit in the Custodial Account amounts
representing Foreclosure Profits, fees (including annual fees) or late charge penalties,
payable by Mortgagors (such amounts to be retained as additional servicing compensation in
accordance with Section 3.09 hereof), or amounts received by the Servicer for the accounts
of Mortgagors for application towards the payment of taxes, insurance premiums, assessments
and similar items. In the event any amount not required to be deposited in the Custodial
Account is so deposited, the Servicer may at any time withdraw such amount from the
Custodial Account, any provision herein to the contrary notwithstanding. The Servicer shall
retain all Foreclosure Profits as additional servicing compensation.
The Servicer, in its sole discretion, may deposit into the Custodial Account amounts
representing installments of principal of or interest on Home Loans that were delinquent as
of the end of any Collection Period, provided that the Servicer reasonably believes that
such amounts will be recoverable from Collections on the related Home Loan. If the Servicer
makes any such advances of delinquent principal and/or interest, the Servicer shall be
entitled to reimburse itself by withdrawing from the Custodial Account, as provided herein,
any amounts so advanced.
The Servicer may cause the institution maintaining the Custodial Account to invest
any funds in the Custodial Account in Permitted Investments (including obligations of the
Servicer or any of its Affiliates, if such obligations otherwise qualify as Permitted
Investments), which investments shall mature not later than the Business Day preceding the
next succeeding Payment Date, and which investments shall not be sold or disposed of prior
to maturity. In addition, no such Permitted Investment shall be purchased at a price in
excess of par. Except as provided above, all income and gain realized from any such
investment shall inure to the benefit of the Servicer and shall be subject to its withdrawal
or order from time to time. The amount of any losses incurred in respect of the principal
amount of any such investments shall be deposited in the Custodial Account by the Servicer
out of its own funds immediately as realized.
(c) The Servicer shall require each Subservicer to hold all funds constituting
collections on the Home Loans, pending remittance thereof to the Servicer, in one or more
accounts meeting the requirements of an Eligible Account, and shall require all such funds
to be invested in Permitted Investments, unless all such collections are remitted on a daily
basis to the Servicer for deposit into the Custodial Account.
Section 3.03 Withdrawals from the Custodial Account. The Servicer shall, from time to time
as provided herein, make withdrawals from the Custodial Account of amounts on deposit
therein pursuant to Section 3.02 that are attributable to the Home Loans for the following
purposes:
(a) on each Determination Date, the Servicer shall determine the aggregate amounts to be
withdrawn from the Custodial Account and applied pursuant to Section 3.05(a) of the
Indenture and, prior to the close of business on the Business Day prior to the related
Payment Date (provided that the Indenture Trustee shall not be required to invest any
amounts deposited into the Note Payment Account after 1:00 p.m.), shall withdraw such
amounts from the Custodial Account and deposit such amounts into the Note Payment Account to
be distributed by the Paying Agent in accordance with and in the order or priority set forth
in Section 3.05(a) of the Indenture for such Payment Date, in accordance with the Servicing
Certificate;
(b) to pay to itself from any monthly payments received from the Mortgagors, the amount
of such payment that represents interest accrued on the related Home Loan for any period
prior to the Cut-Off Date;
(c) to the extent deposited to the Custodial Account, to reimburse itself or the related
Subservicer for previously unreimbursed expenses incurred in maintaining individual
insurance policies pursuant to Section 3.04, or Liquidation Expenses, paid pursuant to
Section 3.07 or otherwise reimbursable pursuant to the terms of this Agreement (to the
extent not payable pursuant to Section 3.09), such withdrawal right being limited to amounts
received on particular Home Loans (other than any Repurchase Price in respect thereof) that
represent late recoveries of the payments for which such advances were made, or from related
Net Liquidation Proceeds or the proceeds of the purchase of such Home Loan;
(d) to pay to itself out of each payment received on account of interest on a Home Loan
as contemplated by Section 3.09, an amount equal to the related Servicing Fee and the
Recovery Fee (to the extent not retained pursuant to Section 3.02), and to pay to any
Subservicer any subservicing fees not previously withheld by such Subservicer;
(e) to the extent deposited in the Custodial Account, to pay to itself as additional
servicing compensation any (i) interest or investment income earned on funds deposited in
the Custodial Account that it is entitled to withdraw pursuant to Sections 3.02(b) and 5.01,
and (ii) Foreclosure Profits (to the extent permitted by law);
(f) to pay to itself or the Seller, with respect to any Home Loan or property acquired in
respect thereof that has been purchased or otherwise transferred to such Seller, the
Servicer or other entity, all amounts received thereon and not required to be distributed to
Securityholders as of the date on which the related Purchase Price or Repurchase Price is
determined;
(g) to withdraw any other amount deposited in the Custodial Account that was not required
to be deposited therein pursuant to Section 3.02;
(h) to pay to itself, with respect to any Home Loan for which it has made an advance of
delinquent principal and/or interest, any previously unreimbursed advances of such amounts
theretofore made to the extent of receipts of late recoveries of such payments from the
related Mortgagors, out of related Net Liquidation Proceeds or the proceeds of the purchase
of such Home Loans;
(i) to reimburse itself for the amount of any investment earnings advanced prior to
maturity pursuant to Section 3.17(c) or Section 5.01, to the extent not reimbursed from
earnings received on the related investment at maturity;
(j) at its option, for so long as it is the sole Certificateholder, to pay to itself from
amounts otherwise required to be remitted to the Distribution Account in accordance with
Section 3.05(a)(ix) of the Indenture, all amounts payable to it as a Certificateholder on
the related Payment Date; and
(k) to reimburse itself for advances of delinquent principal and/or interest on a Home
Loan or other advances that are made pursuant to this Agreement that are not reimbursed
pursuant to clauses (c) and (h) of this Section 3.03.
Since, in connection with withdrawals pursuant to clauses (c), (d), (f) and (h), the
Servicer's entitlement thereto is limited to collections or other recoveries on the related
Home Loan, the Servicer shall keep and maintain separate accounting, on a Home Loan by Home
Loan basis, for the purpose of justifying any withdrawal from the Custodial Account pursuant
to such clauses. Notwithstanding any other provision of this Agreement, the Servicer shall
be entitled to reimburse itself for any previously unreimbursed expenses incurred pursuant
to Section 3.07 or otherwise reimbursable pursuant to the terms of this Agreement that the
Servicer determines to be otherwise nonrecoverable (except with respect to any Home Loan as
to which the Repurchase Price has been paid), by withdrawal from the Custodial Account of
amounts on deposit therein attributable to the Home Loans on any Business Day prior to the
Payment Date succeeding the date of such determination.
Section 3.04 Maintenance of Hazard Insurance; Property Protection Expenses. To the extent
permitted under the related Mortgage Note and Mortgage, and to the extent the Servicer
receives notice that a hazard insurance policy has been cancelled, the Servicer shall cause
to be maintained for each Home Loan hazard insurance naming the Servicer or related
Subservicer as loss payee thereunder providing extended coverage in an amount which is at
least equal to the lesser of (i) the maximum insurable value of the improvements securing
such Home Loan from time to time or (ii) the combined principal balance owing on such Home
Loan and any mortgage loan senior to such Home Loan from time to time; provided, however,
that such coverage may not be less than the minimum amount required to fully compensate for
any loss or damage on a replacement cost basis. The Servicer shall use its best efforts to
monitor that hazard insurance is maintained as described in the previous sentence in the
same manner as it would for mortgage loans in its own portfolio. The Servicer shall also
cause to be maintained on property acquired upon foreclosure, or deed in lieu of
foreclosure, of any Home Loan, fire insurance with extended coverage in an amount which is
at least equal to the amount necessary to avoid the application of any co-insurance clause
contained in the related hazard insurance policy. Amounts collected by the Servicer under
any such policies (other than amounts to be applied to the restoration or repair of the
related Mortgaged Property or property thus acquired or amounts released to the Mortgagor in
accordance with the Servicer's normal servicing procedures) shall be deposited in the
Custodial Account to the extent called for by Section 3.02. In cases in which any Mortgaged
Property is located at any time during the life of a Home Loan in a federally designated
flood area, to the extent permitted under the related Mortgage Note and Mortgage, and to the
extent the Servicer receives notice that the related flood insurance has been cancelled, the
hazard insurance to be maintained for the related Home Loan shall include flood insurance
(to the extent available). All such flood insurance shall be in amounts equal to the lesser
of (i) the amount required to compensate for any loss or damage to the related Mortgaged
Property on a replacement cost basis and (ii) the maximum amount of such insurance available
for such Mortgaged Property under the national flood insurance program (assuming that the
area in which such Mortgaged Property is located is participating in such program). The
Servicer shall use its best efforts to monitor such flood insurance as described in the
previous sentence in the same manner as it would for mortgage loans in its own portfolio.
The Servicer shall be under no obligation to require that any Mortgagor maintain earthquake
or other additional insurance and shall be under no obligation itself to maintain any such
additional insurance on property acquired in respect of a Home Loan, other than pursuant to
such applicable laws and regulations as shall at any time be in force and as shall require
such additional insurance. If the Servicer shall obtain and maintain a blanket policy
consistent with its general mortgage servicing activities insuring against hazard losses on
all of the Home Loans, it shall conclusively be deemed to have satisfied its obligations as
set forth in the first sentence of this Section 3.04, it being understood and agreed that
such policy may contain a deductible clause, in which case the Servicer shall, in the event
that there shall not have been maintained on the related Mortgaged Property a policy
complying with the first sentence of this Section 3.04 and there shall have been a loss
which would have been covered by such policy, deposit in the Custodial Account the amount
not otherwise payable under the blanket policy because of such deductible clause. Any such
deposit by the Servicer shall be made on the last Business Day of the Collection Period in
the month in which payments under any such policy would have been deposited in the Custodial
Account. In connection with its activities as servicer of the Home Loans, the Servicer
agrees to present, on behalf of itself, the Issuer and the Indenture Trustee, claims under
any such blanket policy.
Section 3.05 Modification Agreements; Release or Substitution of Lien.
(a) The Servicer or the related Subservicer, as the case may be, shall be entitled to (a)
execute assumption agreements, substitution agreements, and instruments of satisfaction or
cancellation or of partial or full release or discharge, or any other document contemplated
by this Agreement and other comparable instruments with respect to the Home Loans and with
respect to the related Mortgaged Properties (and the Issuer and the Indenture Trustee each
shall promptly execute any such documents on request of the Servicer) and (b) approve the
granting of an easement thereon in favor of another Person, any alteration or demolition of
such Mortgaged Properties or other similar matters, if it has determined, exercising its
good faith business judgment in the same manner as it would if it were the owner of the
related Home Loans, that the security for, and the timely and full collectability of, such
Home Loans would not be adversely affected thereby. A partial release pursuant to this
Section 3.05 shall be permitted only if the CLTV for the related Home Loan after such
partial release does not exceed the CLTV for such Home Loan as of the related Cut-Off Date.
Any fee collected by the Servicer or the related Subservicer for processing such request
will be retained by the Servicer or such Subservicer as additional servicing compensation.
(b) The Servicer may enter into an agreement with a Mortgagor to release the lien on the
Mortgaged Property relating to a Home Loan (the "Existing Lien"), if at the time of such
agreement the Home Loan is current in payment of principal and interest, under any of the
following circumstances:
(i) in any case in which, simultaneously with the release of the Existing Lien, the
Mortgagor executes and delivers to the Servicer a Mortgage on a substitute Mortgaged
Property, provided that the CLTV of the Home Loan (calculated based on the Appraised Value
of the substitute Mortgaged Property) is not greater than the CLTV prior to releasing the
Existing Lien;
(ii) in any case in which, simultaneously with the release of the Existing Lien, the
Mortgagor executes and delivers to the Servicer a Mortgage on a substitute Mortgaged
Property, provided that: (A) the CLTV of the Home Loan (calculated based on the Appraised
Value of the substitute Mortgaged Property) is not greater than the lesser of (1) 125% and
(2) 105% of the CLTV prior to releasing the Existing Lien; and (B) the Servicer determines
that at least two appropriate compensating factors are present (compensating factors may
include, without limitation, an increase in the Mortgagor's monthly cash flow after debt
service, the Mortgagor's debt-to-income ratio has not increased since origination, or an
increase in the Mortgagor's credit score); or
(iii) in any case in which, at the time of release of the Existing Lien, the Mortgagor does
not provide the Servicer with a Mortgage on a substitute Mortgaged Property (any Home Loan
that becomes and remains unsecured in accordance with this subsection, an "Unsecured Loan"),
provided that: (A) the Servicer shall not permit the release of an Existing Lien under this
clause (iii) as to more than 100 Home Loans in any calendar year; (B) at no time shall the
aggregate Principal Balance of Unsecured Loans exceed 5% of the then Pool Balance; (C) the
Mortgagor agrees to an automatic debit payment plan; and (D) the Servicer shall provide
notice to each Rating Agency and the Credit Enhancer that has requested notice of such
releases.
In connection with any Unsecured Loan, the Servicer may require the Mortgagor to enter into
an agreement under which: (i) the Loan Rate may be increased effective until a substitute
Mortgage meeting the criteria under (i) or (ii) above is provided; or (ii) any other
provision may be made which the Servicer considers to be appropriate. Thereafter, the
Servicer shall determine in its discretion whether to accept any proposed Mortgage on any
substitute Mortgaged Property as security for the Home Loan, and the Servicer may require
the Mortgagor to agree to any further conditions which the Servicer considers appropriate in
connection with such substitution, which may include a reduction of the Loan Rate (but not
below the Loan Rate in effect at the Closing Date). Any Home Loan as to which a Mortgage on
a substitute Mortgaged Property is provided in accordance with the preceding sentence shall
no longer be deemed to be an Unsecured Loan.
Section 3.06 Trust Estate; Related Documents.
(a) When required by the provisions of this Agreement, the Issuer or the Indenture
Trustee shall execute instruments to release property from the terms of the Trust Agreement,
Indenture or Custodial Agreement, as applicable, or convey the Issuer's or the Indenture
Trustee's interest in the same, in a manner and under circumstances that are not
inconsistent with the provisions of this Agreement. No party relying upon an instrument
executed by the Issuer or the Indenture Trustee as provided in this Section 3.06 shall be
bound to ascertain the Issuer's or the Indenture Trustee's authority, inquire into the
satisfaction of any conditions precedent or see to the application of any moneys.
(b) If from time to time any written assurance, assumption agreement or substitution
agreement or other similar agreement shall be executed pursuant to Section 3.05, the
Servicer shall check that each of such documents purports to be an original executed copy
(or a copy of the original executed document if the original executed copy has been
submitted for recording and has not yet been returned) and, if so, shall file such
documents, and upon receipt of the original executed copy from the applicable recording
office or receipt of a copy thereof certified by the applicable recording office shall file
such originals or certified copies with the Related Documents held by the Servicer.
(c) Upon receipt of a Request for Release from the Servicer, substantially in the form of
Exhibit C hereto, to the effect that a Home Loan has been the subject of a final payment or
a prepayment in full and such Home Loan has been terminated or that substantially all Net
Liquidation Proceeds that have been determined by the Servicer in its reasonable judgment to
be finally recoverable have been recovered, and upon deposit to the Custodial Account of
such final monthly payment, prepayment in full together with accrued and unpaid interest to
the date of such payment with respect to such Home Loan or, if applicable, Net Liquidation
Proceeds, the Custodian shall promptly release the Related Documents held by the Custodian
to the Servicer. The Indenture Trustee shall execute such Related Documents, along with
such documents as the Servicer or the related Mortgagor may request to evidence satisfaction
and discharge of such Home Loan, upon request of the Servicer. If from time to time and as
appropriate for the servicing or foreclosure of any Home Loan, the Servicer requests the
Custodian to release the Related Documents held by the Custodian and delivers to the
Custodian a trust receipt reasonably satisfactory to the Custodian and signed by a
Responsible Officer of the Servicer, the Custodian shall release such Related Documents to
the Servicer. If such Home Loans shall be liquidated and the Custodian receives a
certificate from the Servicer as provided above, then, upon request of the Servicer, the
Custodian shall release the trust receipt to the Servicer.
Section 3.07 Realization Upon Defaulted Home Loans; Loss Mitigation. With respect to any
Home Loan that comes into and continues in default, the Servicer shall decide whether to (i)
foreclose upon the related Mortgaged Property, (ii) write off the unpaid Principal Balance
thereof as bad debt, (iii) take a deed in lieu of foreclosure, (iv) accept a short sale (a
payoff of the Home Loan for an amount less than the total amount contractually owed in order
to facilitate a sale of the Mortgaged Property by the Mortgagor), (v) permit a short
refinancing (a payoff of the Home Loan for an amount less than the total amount
contractually owed in order to facilitate refinancing transactions by the Mortgagor not
involving a sale of the Mortgaged Property), (vi) arrange for a repayment plan, (vii) agree
to a modification in accordance with this Agreement or (viii) take an unsecured note in each
case subject to the rights of any related first Lien holder; provided, that in connection
with the foregoing, if the Servicer has actual knowledge that any Mortgaged Property is
affected by hazardous or toxic wastes or substances and that the acquisition of such
Mortgaged Property would not be commercially reasonable, then the Servicer shall not cause
the Issuer or the Indenture Trustee to acquire title to such Mortgaged Property in a
foreclosure or similar proceeding. In connection with such decision, the Servicer shall
follow such practices (including, in the case of any default on a related senior mortgage
loan, the advancing of funds to correct such default if deemed to be appropriate by the
Servicer) and procedures as it shall deem necessary or advisable and as shall be normal and
usual in its general mortgage servicing activities and as shall be required or permitted by
the Program Guide; provided, that the Servicer shall not be liable in any respect hereunder
if the Servicer is acting in connection with any such foreclosure or attempted foreclosure
which is not completed or other conversion in a manner that is consistent with the
provisions of this Agreement. The foregoing is subject to the proviso that the Servicer
shall not be required to expend its own funds in connection with any foreclosure or
attempted foreclosure which is not completed or towards the correction of any default on a
related senior mortgage loan or restoration of any property unless it shall determine that
such expenditure will increase the related Net Liquidation Proceeds. In the event of a
determination by the Servicer that any such expenditure previously made pursuant to this
Section 3.07 will not be reimbursable from Net Liquidation Proceeds, the Servicer shall be
entitled to reimbursement of its funds so expended pursuant to Section 3.03.
Notwithstanding any provision of this Agreement, a Home Loan may be deemed to be
finally liquidated if substantially all amounts expected by the Servicer to be received in
connection therewith have been received; provided, however, the Servicer may treat any Home
Loan that is 180 days or more delinquent as having been finally liquidated or may continue
to pursue recovery of such Home Loan. Any Recovery Amounts, with respect to any such Home
Loan shall be deposited into the Custodial Account. If the Servicer continues to pursue
recovery, the Servicer shall be entitled to the Recovery Fee with respect to that Home Loan
and to be reimbursed for any advances and expenses out of recoveries with respect to such
Home Loan as though such Home Loan continued to be an Outstanding Home Loan hereunder. For
purposes of determining the amount of any Net Liquidation Proceeds, Insurance Proceeds or
other unscheduled collections, the Servicer may take into account minimal amounts of
additional receipts expected to be received or any estimated additional liquidation expenses
expected to be incurred in connection with such Home Loan.
In the event that title to any Mortgaged Property is acquired in foreclosure or by
deed in lieu of foreclosure, the deed or certificate of sale shall be issued to the
Indenture Trustee, which shall hold the same on behalf of the Issuer in accordance with
Section 3.13 of the Indenture. Notwithstanding any such acquisition of title and
cancellation of the related Home Loan, such Mortgaged Property shall (except as otherwise
expressly provided herein) be considered to be an outstanding Home Loan held as an asset of
the Issuer until such time as such property shall be sold. Consistent with the foregoing
for purposes of all calculations hereunder, so long as the related Home Loan shall be
considered to be an outstanding Home Loan, it shall be assumed that, notwithstanding that
the indebtedness evidenced by the related Mortgage Note shall have been discharged, such
Mortgage Note in effect at the time of any such acquisition of title before any adjustment
thereto by reason of any bankruptcy or similar proceeding or any moratorium or similar
waiver or grace period will remain in effect.
Any proceeds from foreclosure proceedings or the purchase or repurchase of any Home
Loan pursuant to the terms of this Agreement, as well as any recovery resulting from a
collection of Net Liquidation Proceeds or Insurance Proceeds, shall be applied in the
following order of priority: first, to reimburse the Servicer or the related Subservicer in
accordance with this Section 3.07; second, to pay the Servicer or the related Subservicer
all Servicing Fees payable therefrom; third, to pay accrued and unpaid interest on such Home
Loan, at the Net Loan Rate to the Payment Date on which such amounts are to be deposited in
the Note Payment Account or Distribution Account; and fourth, as a recovery of principal on
such Home Loan. Any remaining amount shall constitute Foreclosure Profits.
Section 3.08 Issuer and Indenture Trustee to Cooperate. On or before each Payment Date,
the Servicer will notify the Indenture Trustee or the Custodian, with a copy to the Issuer,
of the termination of or the payment in full and the termination of any Home Loan during the
preceding Collection Period. Upon receipt of payment in full, the Servicer is authorized to
execute, pursuant to the authorization contained in Section 3.01, an instrument of
satisfaction regarding the related Mortgage, which instrument of satisfaction shall be
recorded by the Servicer if required by applicable law and be delivered to the Person
entitled thereto and to cause the removal from the registration on the MERS(R)System of such
Mortgage. It is understood and agreed that any expenses incurred in connection with such
instrument of satisfaction or transfer shall be reimbursed from amounts deposited in the
Custodial Account. From time to time and as appropriate for the servicing or foreclosure of
any Home Loan, the Custodian shall, upon request of the Servicer and delivery to the
Custodian, with a copy to the Issuer, of a Request for Release, in the form attached hereto
as Exhibit C, signed by a Servicing Officer, release or cause to be released the related
Mortgage Note to the Servicer. The Issuer or Indenture Trustee shall promptly execute such
documents, in the forms provided by the Servicer, as shall be necessary for the prosecution
of any such proceedings or the taking of other servicing actions. Such trust receipt shall
obligate the Servicer to return such Mortgage Note to the Custodian (as specified in such
receipt) when the need therefor by the Servicer no longer exists, unless the Home Loan shall
be liquidated, in which case, upon receipt of a certificate of a Servicing Officer similar
to that specified above, such trust receipt shall be released to the Servicer.
In order to facilitate the foreclosure of the Mortgage securing any Home Loan that is
in default following recordation of the related Assignment of Mortgage in accordance with
the provisions of the Purchase Agreement, the Indenture Trustee or the Issuer shall, if so
requested in writing by the Servicer, promptly execute an appropriate assignment in the form
provided by the Servicer to assign such Home Loan for the purpose of collection to the
Servicer (any such assignment shall unambiguously indicate that the assignment is for the
purpose of collection only), and, upon such assignment, such assignee for collection will
thereupon bring all required actions in its own name and otherwise enforce the terms of such
Home Loan and deposit or credit the Net Liquidation Proceeds, exclusive of Foreclosure
Profits, received with respect thereto into the Custodial Account. In the event that all
delinquent payments due under any such Home Loan are paid by the Mortgagor and any other
defaults are cured, then the assignee for collection shall promptly reassign such Home Loan
to the Indenture Trustee and return all Related Documents to the place where the related
Mortgage File was being maintained.
In connection with the Issuer's obligation to cooperate as provided in this Section
3.08 and all other provisions of this Agreement requiring the Issuer to authorize or permit
any actions to be taken with respect to the Home Loans, the Indenture Trustee, as pledgee of
the Home Loans and as assignee of record of the Home Loans on behalf of the Issuer pursuant
to Section 3.13 of the Indenture, expressly agrees, on behalf of the Issuer, to take all
such actions on behalf of the Issuer and to promptly execute and return all instruments
reasonably required by the Servicer in connection therewith; provided, that if the Servicer
requests a signature of the Indenture Trustee, on behalf of the Issuer, then the Servicer
shall deliver to the Indenture Trustee an Officer's Certificate stating that such signature
is necessary or appropriate to enable the Servicer to carry out its servicing and
administrative duties under this Agreement.
Section 3.09 Servicing Compensation; Payment of Certain Expenses by Servicer. The Servicer
shall be entitled to receive the Servicing Fee in accordance with Section 3.03 as
compensation for its services in connection with servicing the Home Loans. Moreover, late
payment charges and other receipts not required to be deposited in the Custodial Account as
specified in Section 3.02 shall be retained by the Servicer as additional servicing
compensation. The Servicer shall be required to pay all expenses incurred by it in
connection with its activities hereunder (including payment of all other fees and expenses
not expressly stated hereunder to be for the account of the Securityholders), including the
fees and expenses of the Owner Trustee, Indenture Trustee and the Custodian, and shall not
be entitled to reimbursement therefor.
Section 3.10 Annual Statement as to Compliance. (a) The Servicer will deliver to the
Depositor, the Credit Enhancer and the Indenture Trustee on or before the earlier of (a)
March 31 of each year or (b) with respect to any calendar year during which the Depositor's
annual report on Form 10-K is required to be filed in accordance with the Exchange Act and
the rules and regulations of the Commission, the date on which the annual report on Form
10-K is required to be filed in accordance with the Exchange Act and the rules and
regulations of the Commission, a servicer compliance certificate, signed by an authorized
officer of the Servicer, as described in Item 1123 of Regulation AB, to the effect that:
(i) A review of the Servicer's activities during the reporting period and
of its performance under this Servicing Agreement has been made under such officer's
supervision; and
(ii) To the best of such officer's knowledge, based on such review, the
Servicer has fulfilled all of its obligations under this Servicing Agreement in all
materials respects throughout the reporting period or, if there has been a failure to
fulfill any such obligation in any material respect, specifying each such failure known to
such officer and the nature and status thereof.
The Servicer shall use commercially reasonable efforts to obtain from all
other parties participating in the servicing function any additional certifications required
under Item 1123 of Regulation AB to the extent required to be included in a Report on Form
10-K; provided, however, that a failure to obtain such certifications shall not be a breach
of the Servicer's duties hereunder if any such party fails to deliver such a certification.
(b) The Servicer shall deliver to the Issuer and the Indenture Trustee,
with a copy to the Credit Enhancer, promptly after having obtained knowledge thereof, but in
no event later than five Business Days thereafter, written notice by means of an Officer's
Certificate of any event which with the giving of notice or the lapse of time or both, would
become a Servicing Default.
Section 3.11 Annual Independent Public Accountants' Servicing Report. On or before the
earlier of (a) March 31 of each year or (b) with respect to any calendar year during which
the Depositor's annual report on Form 10-K is required to be filed in accordance with the
Exchange Act and the rules and regulations of the Commission, the date on which the annual
report is required to be filed in accordance with the Exchange Act and the rules and
regulations of the Commission, the Servicer at its expense shall cause a firm of independent
public accountants, which shall be members of the American Institute of Certified Public
Accountants, to furnish a report to the Depositor and the Indenture Trustee the attestation
required under Item 1122(b) of Regulation AB. In rendering such statement, such firm may
rely, as to matters relating to the direct servicing of Home Loans by Subservicers, upon
comparable statements for examinations conducted by independent public accountants
substantially in accordance with standards established by the American Institute of
Certified Public Accountants (rendered within one year of such statement) with respect to
such Subservicers.
Section 3.12 Access to Certain Documentation and Information Regarding the Home Loans.
Whenever required by statute or regulation, the Servicer shall provide to the Credit
Enhancer, any Securityholder upon reasonable request (or a regulator for a Securityholder)
or the Indenture Trustee, reasonable access to the documentation regarding the Home Loans.
Such access shall be afforded without charge, but only upon reasonable request and during
normal business hours at the offices of the Servicer. Nothing in this Section 3.12 shall
derogate from the obligation of the Servicer to observe any applicable law prohibiting
disclosure of information regarding Mortgagors, and the failure of the Servicer to provide
access as provided in this Section 3.12 as a result of such obligation shall not constitute
a breach of this Section 3.12.
Section 3.13 Maintenance of Certain Servicing Insurance Policies. The Servicer shall,
during the term of its service as servicer, maintain in force and effect (i) a policy or
policies of insurance covering errors and omissions in the performance of its obligations as
Servicer hereunder and (ii) a fidelity bond in respect of its officers, employees or
agents. Each such policy or policies and fidelity bond shall be at least equal to the
coverage that would be required by Xxxxxx Xxx or Xxxxxxx Mac, whichever is greater, for
Persons performing servicing for mortgage loans purchased by such entity.
Section 3.14 Information Required by the Internal Revenue Service and Reports of
Foreclosures and Abandonments of Mortgaged Property. The Servicer shall prepare and deliver
all federal and state information reports with respect to the Home Loans when and as
required by all applicable state and federal income tax laws. In particular, with respect
to the requirement under Section 6050J of the Code to the effect that the Servicer or
Subservicer shall make reports of foreclosures and abandonments of any mortgaged property
for each year beginning in 2006, the Servicer or Subservicer shall file reports relating to
each instance occurring during the previous calendar year in which the Servicer (a) on
behalf of the Issuer, acquired an interest in any Mortgaged Property through foreclosure or
other comparable conversion in full or partial satisfaction of a Home Loan, or (b) knew or
had reason to know that any Mortgaged Property had been abandoned. The reports from the
Servicer or Subservicer shall be in form and substance sufficient to meet the reporting
requirements imposed by Section 6050J and Section 6050H (reports relating to mortgage
interest received) of the Code.
Section 3.15 Optional Repurchase or Transfer of Home Loans.
(a) Notwithstanding any provision in Section 3.07 to the contrary, the Servicer, at its
option and in its sole discretion, may repurchase any Home Loan delinquent in payment for a
period of ninety (90) days or longer for a price equal to the Repurchase Price, provided
that any such repurchase shall occur only during the 60 day period commencing on the first
day of the next calendar month.
(b) The Servicer, at its option and in its sole discretion, may repurchase any Home Loan
for a price equal to the Repurchase Price (i) if the related Mortgage did not have a Lien
senior to it as of the related Cut-Off Date, and at the request of the related Mortgagor,
the Servicer agrees to the placement of a Lien on the related Mortgaged Property senior to
that of such Mortgage or (ii) at the request of the Mortgagor, the Servicer agrees to the
refinancing of the Lien senior to that of the related Mortgage resulting in a CLTV above the
previous CLTV for such Home Loan.
(c) Subject to the conditions set forth below, the Servicer, upon receipt of written
notice and direction from the Issuer, shall cause the retransfer of Home Loans from the
Trust Estate to the Issuer on the Transfer Date. On the Transfer Notice Date prior to the
Transfer Date designated in such notice, the Servicer shall give the Indenture Trustee, the
Rating Agencies and the Credit Enhancer a written notice of the proposed retransfer that
contains a list of the Home Loans to be retransferred. Such retransfers of Home Loans shall
be permitted upon satisfaction of the following conditions:
(i) On the Transfer Date, the Overcollateralization Amount (after giving effect to the
removal from the Trust Estate of the Home Loans proposed to be retransferred) will equal or
exceed the Required Overcollateralization Amount;
(ii) On or before the Transfer Date, the Servicer shall have delivered to the Indenture
Trustee a revised Home Loan Schedule showing that the Home Loans transferred to the Issuer
are no longer owned by the Trust Estate;
(iii) The Servicer shall represent and warrant that the Home Loans to be removed from the
Trust Estate were selected at random and the Servicer shall have received the consent of the
Credit Enhancer as to the selection of the particular Home Loans to be removed; and
(iv) The Servicer shall have delivered to the Indenture Trustee and the Credit Enhancer an
officer's certificate certifying that the items set forth in subparagraphs (i) through
(iii), inclusive, have been performed or are true and correct, as the case may be. The
Indenture Trustee may conclusively rely on such officer's certificate, shall have no duty to
make inquiries with regard to the matters set forth therein and shall incur no liability in
so relying.
The Servicer shall not be permitted to effect the retransfer of any Home Loan except
under the conditions specified above. Upon receiving the requisite notice and direction
from the Issuer, the Servicer shall perform in a timely manner those acts required of it, as
specified above. Upon satisfaction of the above conditions, on the Transfer Date the
Indenture Trustee shall deliver, or cause to be delivered, to the Issuer a written
itemization of each Home Loan being transferred, together with the Mortgage File for each
such Home Loan, and the Indenture Trustee shall execute and deliver to the Issuer or its
designee such other documents prepared by the Servicer as shall be reasonably necessary to
transfer such Home Loans to the Certificateholders. Any such transfer of the Trust Estate's
right, title and interest in and to Home Loans shall be without recourse, representation or
warranty by or of the Indenture Trustee or the Trust Estate to the Issuer or its designee.
Section 3.16 [Reserved].
Section 3.17 [Reserved].
Section 3.18 [Reserved].
Section 3.19 Enforcement of Due-on-Sale Clauses; Assumption and Modification Agreements;
Certain Assignments.
(a) When any Mortgaged Property is conveyed by the Mortgagor, the Servicer or
Subservicer, to the extent it has knowledge of such conveyance, shall enforce any
due-on-sale clause contained in any Mortgage Note or Mortgage, to the extent permitted under
applicable law and governmental regulations, but only to the extent that such enforcement
will not adversely affect or jeopardize coverage under any Required Insurance Policy.
Notwithstanding the foregoing:
(i) the Servicer shall not be deemed to be in default under this Section 3.19(a) by
reason of any transfer or assumption which the Servicer is restricted by law from
preventing; and
(ii) if the Servicer determines that it is reasonably likely that any Mortgagor will bring
, or if any Mortgagor does bring, legal action to declare invalid or otherwise avoid
enforcement of a due-on-sale clause contained in any Mortgage Note or Mortgage, the Servicer
shall not be required to enforce the due-on-sale clause or to contest such action.
(b) Subject to the Servicer's duty to enforce any due-on-sale clause to the extent set
forth in Section 3.19(a), in any case in which a Mortgaged Property is to be conveyed to a
Person by a Mortgagor, and such Person is to enter into an assumption or modification
agreement or supplement to the Mortgage Note or Mortgage which requires the signature of the
Indenture Trustee, or if an instrument of release signed by the Indenture Trustee is
required releasing the Mortgagor from liability on the Home Loan, the Servicer is
authorized, subject to the requirements of the sentence next following, to execute and
deliver, on behalf of the Indenture Trustee, the assumption agreement with the Person to
whom the Mortgaged Property is to be conveyed and such modification agreement or supplement
to the Mortgage Note or Mortgage or other instruments as are reasonable or necessary to
carry out the terms of the Mortgage Note or Mortgage or otherwise to comply with any
applicable laws regarding assumptions or the transfer of the Mortgaged Property to such
Person. The Servicer shall execute and deliver such documents only if it reasonably
determines that (i) its execution and delivery thereof will not conflict with or violate any
terms of this Agreement or cause the unpaid balance and interest on the Home Loan to be
uncollectible in whole or in part, (ii) any required consents of insurers under any Required
Insurance Policies have been obtained and (iii) subsequent to the closing of the transaction
involving the assumption or transfer (A) such transaction will not adversely affect the
coverage under any Required Insurance Policies, (B) the Home Loan will fully amortize over
the remaining term thereof, (C) no material term of the Home Loan (including the interest
rate on the Home Loan) will be altered nor will the term of the Home Loan be changed and (D)
if the seller/transferor of the Mortgaged Property is to be released from liability on the
Home Loan, such release will not (based on the Servicer's or Subservicer's good faith
determination) adversely affect the collectability of the Home Loan. Upon receipt of
appropriate instructions from the Servicer in accordance with the foregoing, the Indenture
Trustee shall execute any necessary instruments delivered to it for such assumption or
substitution of liability as directed in writing by the Servicer. Upon the closing of the
transactions contemplated by such documents, the Servicer shall cause the originals or true
and correct copies of the assumption agreement, the release (if any), or the modification or
supplement to the Mortgage Note or Mortgage to be delivered to the Indenture Trustee or the
Custodian and deposited with the Mortgage File for such Home Loan. Any fee collected by the
Servicer or such related Subservicer for entering into an assumption or substitution of
liability agreement will be retained by the Servicer or such Subservicer as additional
servicing compensation.
Section 3.20 Advance Facility.
(a) The Servicer is hereby authorized to enter into any facility (an "Advance Facility")
with any Person (any such Person, an "Advance Facility Counterparty"), without the consent
of any party to this Agreement or the Credit Enhancer, which provides that the Servicer may
pledge or sell its rights to receive reimbursement of any advances ("Servicer Advances")
made by the Servicer pursuant to this Agreement ("Advance Reimbursement Rights") pursuant to
credit facilities, repurchase facilities, or similar facilities providing liquidity for the
funding of the Servicer Advances.
(b) If the Servicer enters into an Advance Facility, and for so long as an Advance
Facility Counterparty remains entitled to receive reimbursement for any Servicer Advances
("Advance Reimbursement Amount"), then the Servicer shall identify such Advance Reimbursement
Amount as received, consistently with the reimbursement rights set forth in Section 3.03 of
this Agreement, and shall remit such Advance Reimbursement Amount in accordance with the
documentation establishing the Advance Facility to such Advance Facility Counterparty or to
a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advance
Facility Counterparty. Notwithstanding the foregoing, if so required pursuant to the terms
of the Advance Facility, the Servicer may withdraw from the Custodial Account or direct the
Indenture Trustee in writing to withdraw, as applicable, and the Servicer shall, or if so
directed, the Indenture Trustee is hereby authorized to and shall pay to the Advance
Facility Counterparty or the Advance Facility Trustee (in each case identified to it in
writing by the Servicer) the Advance Reimbursement Amount identified pursuant to the
preceding sentence.
(c) The Advance Reimbursement Amount shall consist solely of amounts in respect of
Servicer Advances made with respect to the Home Loans for which the Servicer would be
permitted to reimburse itself in accordance with this Agreement, assuming the Servicer had
made the related Servicer Advances. Any Advance Reimbursement Amount that the Servicer, in
its capacity as Servicer, is entitled to be paid shall not be included in distributions to
Noteholders. An Advance Facility Counterparty whose obligations are limited to the making
of Servicer Advances will not be deemed to be a Subservicer under this Agreement or be
required to meet the criteria for qualification as a Subservicer under this Agreement.
(d) Any Advance Reimbursement Amount allocated to reimburse Servicer Advances made with
respect to any particular Mortgage Loan shall be allocated to the reimbursement of the
unreimbursed Servicer Advances made with respect to that Mortgage Loan on a "first-in, first
out" ("FIFO") basis, such that the Advance Reimbursement Amount shall be applied to
reimburse the Servicer Advance for that Mortgage Loan that was disbursed earliest in time
first, and to reimburse the Servicer Advance for that Mortgage Loan that was disbursed
latest in time, last. The Servicer shall provide to the related Advance Facility
Counterparty or Advance Facility Trustee loan-by-loan information with respect to each
Advance Reimbursement Amount remitted to such Advance Facility Counterparty or Advance
Facility Trustee, to enable the Advance Facility Counterparty or Advance Facility Trustee to
make the FIFO allocation of each such Advance Reimbursement Amount with respect to each
Mortgage Loan. A copy of such information shall be delivered to the Credit Enhancer.
(e) Upon request of the Servicer, the Indenture Trustee agrees to execute such
acknowledgments, certificates, and other documents recognizing the interests of any Advance
Facility Counterparty in such Advance Reimbursement Rights as the Servicer may cause to be
made subject to Advance Facilities pursuant to this Section 3.20.
(f) The Indenture Trustee shall not, as a result of the existence of any Advance
Facility, have any duty or liability with respect to the calculation of any Advance
Reimbursement Amount nor have any responsibility to track or monitor the administration of
the Advance Facility.
ARTICLE IV
Servicing Certificate
Section 4.01 Statements to Securityholders. (a) With respect to each Payment Date, on the
Business Day following the related Determination Date, the Servicer shall forward to the
Indenture Trustee and the Indenture Trustee pursuant to Section 3.26 of the Indenture shall
forward or cause to be forwarded by mail or otherwise make available electronically at
xxx.xxxxxxxx.xxx/xxx to each Certificateholder, Noteholder, the Credit Enhancer, the
Depositor, the Owner Trustee, the Certificate Paying Agent and each Rating Agency, a
statement setting forth the following information (the "Servicing Certificate") as to the
Notes and Certificates, to the extent applicable:
(i) the applicable Record Date, Determination Date and Payment Date;
(ii) the aggregate amount of payments received with respect to the Home Equity Loans,
including prepayment amounts;
(iii) the Servicing Fee payable to the Servicer;
(iv) the amount of any other fees or expenses paid, and the identity of the party
receiving such fees or expenses;
(v) the aggregate amount of (a) Interest Collections, (b) Principal Collections and (c)
Substitution Adjustment Amounts for such Collection Period;
(vi) the amount paid as principal to the Noteholders of each Class of Notes;
(vii) the amount paid as interest to the Noteholders of each Class of Notes, separately
stating the portion thereof in respect of Relief Act Shortfalls, if any;
(viii) the aggregate amount of interest remaining unpaid, if any, for each of the Notes,
after giving effect to the payments made on such Payment Date;
(ix) the amount of any draw on the Policy for such Payment Date, the amount paid to the
Credit Enhancer in reimbursement for prior draws and the aggregate amount of prior draws
under the Policies not yet reimbursed;
(x) the amount of such distribution as principal and interest to the Certificateholders
of the Certificates, separately stating the portion thereof which resulted in a reduction of
the Certificate Balance thereof;
(xi) the aggregate Principal Balance of the Home Loans as of the end of the preceding
Collection Period;
(xii) the number and aggregate Principal Balances of Home Loans (a) as to which the Monthly
Payment is delinquent for 30-59 days, 60-89 days, 90-119 days, 120-149 days and 150-179
days, respectively, (b) the related Mortgaged Property of which has been foreclosed upon and
(c) as to which the related Mortgaged Property has become REO Property, in each case as of
the end of the preceding Collection Period; provided, however, that such information shall
not be provided on the statements relating to the first Payment Date;
(xiii) the aggregate Liquidation Loss Amounts with respect to the related Collection Period,
the amount distributed as principal to Noteholders in respect of Liquidation Loss Amounts
(minus any Recovery Amounts) and the aggregate of the Liquidation Loss Amounts from all
Collection Periods to date expressed as dollar amount and as a percentage of the aggregate
Cut-Off Date Principal Balances of the Home Loans;
(xiv) the aggregate Note Balance of each Class of Notes and the Certificate Balance of the
Certificates after giving effect to the distribution of principal on such Payment Date;
(xv) the Percentage Interest applicable to each of the Securities, after application of
payments made on such Payment Date;
(xvi) the Overcollateralization Amount as of the end of the preceding Collection Period and
the Overcollateralization Release Amount for such Payment Date;
(xvii) the amount of any payment to be made to the designee or designees of the Credit
Enhancer with respect to such Payment Date pursuant to Sections 3.05(a)(i);
(xviii) the weighted average of the Net Loan Rates for the Home Loans for the related
Collection Period; and
(xix) the number and aggregate Principal Balance of Home Loans repurchased pursuant to
Section 3.15(a) herein during the related Collection Period.
In the case of information furnished pursuant to clauses (vi) and (vii) above, the
amounts shall be expressed as an aggregate dollar amount per Note or Certificate, as
applicable, with a $25,000 denomination.
If a Servicing Default shall occur, on the Business Day following the related
Determination Date, the Servicer shall forward to the Indenture Trustee, and the Indenture
Trustee, pursuant to Section 3.26 of the Indenture, shall forward or cause to be forwarded
by mail to each Certificateholder, each Noteholder, the Credit Enhancer, the Depositor, the
Owner Trustee, the Certificate Paying Agent and each Rating Agency, a statement to such
effect, including the nature of such Servicing Default. Such statement may be included in,
or separate from, the regular statement sent to Securityholders.
The Indenture Trustee will make the monthly statement to Securityholders (and, at its
option, any additional files containing the same information in an alternative format)
available each month to Securityholders, and other parties to this Agreement via the
Indenture Trustee's internet website. The Indenture Trustee's internet website shall
initially be located at "xxx.xxxxxxxx.xxx/xxx". Assistance in using the website can be
obtained by calling Indenture Trustee's customer service desk at 000-000-0000. Parties that
are unable to use the above website are entitled to have a paper copy mailed to them via
first class mail by calling the customer service desk and indicating such. The Indenture
Trustee shall have the right to change the way the statements to Securityholders are
distributed in order to make such distribution more convenient and/or more accessible to the
above parties and the Indenture Trustee shall provide timely and adequate notification to
all above parties regarding any such changes.
(b) In addition, with respect to each Payment Date, on the Business Day following the
related Determination Date, the Servicer shall forward to the Credit Enhancer and the Rating
Agencies the following information for each Capitalization Workout entered into during the
related Collection Period:
(i) the original Home Equity Loan amount;
(ii) the Home Loan amount after the Capitalization Workout;
(iii) the original Monthly Payment amount;
(iv) the Monthly Payment amount after the Capitalization Workout;
(v) the Capitalized Amount as defined in Section 3.02(a)(v) herein;
(vi) the CLTV prior to the Capitalization Workout;
(vii) the CLTV after the Capitalization Workout; and
(viii) if an appraisal was used in determining the CLTV referred to in (vii) above, the type
and date of appraisal.
(c) The Servicer shall forward to the Indenture Trustee any other information reasonably
requested by the Indenture Trustee necessary to make distributions pursuant to Section 3.05
of the Indenture. Prior to the close of business on the Business Day next succeeding each
Determination Date, the Servicer shall furnish a written statement to the Certificate Paying
Agent and the Indenture Trustee setting forth the aggregate amounts required to be withdrawn
from the Custodial Account and deposited into the Note Payment Account and/or Distribution
Account on the Business Day preceding the related Payment Date pursuant to Section 3.03.
The determination by the Servicer of such amounts shall, in the absence of obvious error, be
deemed to be presumptively correct for all purposes hereunder, and the Owner Trustee and the
Indenture Trustee shall be protected in relying upon the same without any independent check
or verification. In addition, upon the Issuer's written request, the Servicer shall
promptly furnish such information reasonably requested by the Issuer that is reasonably
available to the Servicer to enable the Issuer to perform its federal and state income tax
reporting obligations.
Section 4.02 Exchange Act Reporting.
(a) The Servicer will act as the Tax Matters Partner or the agent for the Tax Matters
Partner pursuant to the Trust Agreement. The Servicer agrees to perform the obligations of
the Servicer set forth in Section 5.03 of the Trust Agreement. The Servicer will prepare
and file or cause to be prepared and filed all tax and information returns of the Trust
Estate.
(b) The Servicer shall, on behalf of the Depositor and in respect of the Trust Estate,
sign and cause to be filed with the Commission any periodic reports required to be filed
under the provisions of the Exchange Act, and the rules and regulations of the Commission
thereunder including, without limitation, reports on Form 10-K, Form 10-D and Form 8-K. In
connection with the preparation and filing of such periodic reports, the Indenture Trustee
shall timely provide to the Servicer (I) a list of Securityholders as shown on the
Certificate Register and the Note Register as of the end of each calendar year, (II) copies
of all pleadings, other legal process and any other documents relating to any claims,
charges or complaints involving the Indenture Trustee, as trustee hereunder, or the Trust
Estate that are received by the Indenture Trustee, (III) notice of all matters that, to the
actual knowledge of a Responsible Officer of the Indenture Trustee, have been submitted to a
vote of the Securityholders, other than those matters that have been submitted to a vote of
the Securityholders at the request of the Depositor or the Servicer, and (IV) notice of any
failure of the Indenture Trustee to make any distribution to the Securityholders as required
pursuant to this Agreement. The Indenture Trustee shall not have any liability with respect
to the Servicer's failure to properly prepare or file such periodic reports and the Servicer
shall not have any liability with respect to such failure resulting from or relating to the
Servicer's inability or failure to obtain any information not resulting from the Servicer's
own negligence or willful misconduct.
(b) Any Form 10-K filed with the Commission in connection with this Section 4.03
shall include:
(i) A certification, signed by the senior officer in charge of the servicing functions of
the Servicer, in the form attached as Exhibit E hereto or such other form as may be required
or permitted by the Commission (the "Form 10-K Certification"), in compliance with Rules
13a-14 and 15d-14 under the Exchange Act and any additional directives of the Commission.
(ii) A report regarding its assessment of compliance during the preceding calendar year
with all applicable servicing criteria set forth in relevant Commission regulations with
respect to mortgage-backed securities transactions taken as a whole involving the Servicer
that are backed by the same types of assets as those backing the certificates, as well as
similar reports on assessment of compliance received from other parties participating in the
servicing function as required by relevant Commission regulations, as described in
Item 1122(a) of Regulation AB. The Servicer shall obtain from all other parties
participating in the servicing function any required certifications.
(iii) With respect to each assessment report described immediately above, a report by a
registered public accounting firm that attests to, and reports on, the assessment made by
the asserting party, as set forth in relevant Commission regulations, as described in
Regulation 1122(b) of Regulation AB and Section 3.11.
(iv) The servicer compliance certificate required to be delivered pursuant Section 3.10.
(c) In connection with the Form 10-K Certification, the Indenture Trustee shall
provide the Servicer with a back-up certification substantially in the form attached hereto
as Exhibit D-2.
(d) This Section 4.03 may be amended in accordance with this Servicing Agreement
without the consent of the Securityholders.
(e) The Indenture Trustee shall make available on the Indenture Trustee's internet
website each of the reports filed with the Commission by or on behalf of the Depositor under
the Exchange Act, as soon as reasonably practicable upon delivery of such reports to the
Indenture Trustee.
ARTICLE V
Note Payment Account
Section 5.01 Note Payment Account. The Indenture Trustee shall establish and maintain an
Eligible Account entitled "JPMorgan Chase Bank, as Indenture Trustee, for the benefit of the
Securityholders, the Certificate Paying Agent and the Credit Enhancer, pursuant to the
Indenture, dated as of March 30, 2006, between GMACM Home Loan Trust 2006-HLTV1 and JPMorgan
Chase Bank" (the "Note Payment Account"). On each Payment Date, amounts on deposit in the
Note Payment Account shall be distributed by the Indenture Trustee in accordance with
Section 3.05 of the Indenture. The Indenture Trustee shall invest or cause the institution
maintaining the Note Payment Account to invest the funds therein in Permitted Investments
selected in writing by the Servicer and designated in the name of the Indenture Trustee,
which investments shall mature not later than the Business Day next preceding the Payment
Date next following the date of such investment (except that any investment in (i) the
institution with which the Note Payment Account is maintained, or (ii) a fund for which such
institution or affiliate thereof serves as an investment advisor, administrator,
shareholder, servicing agent, custodian or sub custodian may mature on such Payment Date)
and shall not be sold or disposed of prior to maturity. In addition, no such Permitted
Investment shall be purchased at a price in excess of par. All income and gain realized
from any such investment shall be for the benefit of the Servicer and shall be subject to
its withdrawal or order from time to time. The amount of any losses incurred in respect of
any such investments shall be deposited in the Note Payment Account by the Servicer out of
its own funds immediately as realized.
ARTICLE VI
The Servicer
Section 6.01 Liability of the Servicer. The Servicer shall be liable in accordance
herewith only to the extent of the obligations specifically imposed upon and undertaken by
the Servicer herein.
Section 6.02 Merger or Consolidation of, or Assumption of the Obligations of, the
Servicer. Any corporation or limited liability company into which the Servicer may be merged
or converted or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Servicer shall be a party, or any
corporation or limited liability company succeeding to the business of the Servicer, shall
be the successor of the Servicer hereunder, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
The Servicer may assign its rights and delegate its duties and obligations under this
Agreement; provided, that the Person accepting such assignment or delegation shall be a
Person qualified to service mortgage loans, is reasonably satisfactory to the Credit
Enhancer (provided, that such consent to assignment may not be unreasonably withheld), is
willing to service the Home Loans and executes and delivers to the Issuer (with a copy to
the Credit Enhancer) an agreement, in form and substance reasonably satisfactory to the
Credit Enhancer, that contains an assumption by such Person of the due and punctual
performance and observance of each covenant and condition to be performed or observed by the
Servicer under this Agreement; and provided further, that no Rating Event will occur as a
result of such assignment and delegation (as evidenced by a letter to such effect from each
Rating Agency), if determined without regard to the Policy; and provided further, that the
Owner Trustee shall receive an Opinion of Counsel to the effect that such assignment or
delegation will not cause the Issuer to be treated as an association (or a publicly-traded
partnership) taxable as a corporation for federal income tax purposes.
Section 6.03 Limitation on Liability of the Servicer and Others. Neither the Servicer nor
any of the directors or officers or employees or agents of the Servicer shall be under any
liability to the Issuer, the Owner Trustee, the Indenture Trustee or the Securityholders for
any action taken or for refraining from the taking of any action in good faith pursuant to
this Agreement; provided, however, that this provision shall not protect the Servicer or any
such Person against any liability that would otherwise be imposed by reason of its willful
misfeasance, bad faith or gross negligence in the performance of its duties hereunder or by
reason of its reckless disregard of its obligations and duties hereunder. The Servicer and
any director or officer or employee or agent of the Servicer may rely in good faith on any
document of any kind prima facie properly executed and submitted by any Person respecting
any matters arising hereunder. The Servicer and any director, officer, employee or agent of
the Servicer shall be indemnified by the Issuer and held harmless against any loss,
liability or expense incurred in connection with any legal action relating to this Agreement
or the Securities, including any amount paid to the Owner Trustee or the Indenture Trustee
pursuant to Section 6.06(b), other than any loss, liability or expense related to any
specific Home Loan or Home Loans (except as any such loss, liability or expense shall be
otherwise reimbursable pursuant to this Agreement) and any loss, liability or expense
incurred by reason of its willful misfeasance, bad faith or gross negligence in the
performance of its duties hereunder or by reason of its reckless disregard of its
obligations and duties hereunder. The Servicer shall not be under any obligation to appear
in, prosecute or defend any legal action that is not incidental to its duties to service the
Home Loans in accordance with this Agreement, and that in its opinion may involve it in any
expense or liability; provided, however, that the Servicer may in its sole discretion
undertake any such action that it may deem necessary or desirable in respect of this
Agreement, the rights and duties of the parties hereto and the interests of the
Securityholders. In such event, the reasonable legal expenses and costs of such action and
any liability resulting therefrom shall be expenses, costs and liabilities of the Issuer,
and the Servicer shall be entitled to be reimbursed therefor. The Servicer's right to
indemnity or reimbursement pursuant to this Section 6.03 shall survive any resignation or
termination of the Servicer pursuant to Section 6.04 or 7.01 with respect to any losses,
expenses, costs or liabilities arising prior to such resignation or termination (or arising
from events that occurred prior to such resignation or termination).
Section 6.04 Servicer Not to Resign. Subject to the provisions of Section 6.02, the
Servicer shall not resign from the obligations and duties hereby imposed on it except (a)
upon determination that the performance of its obligations or duties hereunder are no longer
permissible under applicable law or are in material conflict by reason of applicable law
with any other activities carried on by it or its subsidiaries or Affiliates, the other
activities of the Servicer so causing such a conflict being of a type and nature carried on
by the Servicer or its subsidiaries or Affiliates at the date of this Agreement or (b) upon
satisfaction of the following conditions: (i) the Servicer shall have proposed a successor
servicer to the Issuer and the Indenture Trustee in writing and such proposed successor
servicer is reasonably acceptable to the Issuer, the Indenture Trustee and the Credit
Enhancer; (ii) each Rating Agency shall have delivered a letter to the Issuer, the Credit
Enhancer and the Indenture Trustee prior to the appointment of the successor servicer
stating that the proposed appointment of such successor servicer as Servicer hereunder will
not cause a Rating Event, if determined without regard to the Policy; and (iii) such
proposed successor servicer is reasonably acceptable to the Credit Enhancer, as evidenced by
a letter to the Issuer and the Indenture Trustee; provided, however, that no such
resignation by the Servicer shall become effective until such successor servicer or, in the
case of (a) above, the Indenture Trustee, as pledgee of the Home Loans, shall have assumed
the Servicer's responsibilities and obligations hereunder or the Indenture Trustee, as
pledgee of the Home Loans, shall have designated a successor servicer in accordance with
Section 7.02. Any such resignation shall not relieve the Servicer of responsibility for any
of the obligations specified in Sections 7.01 and 7.02 as obligations that survive the
resignation or termination of the Servicer. Any such determination permitting the
resignation of the Servicer shall be evidenced by an Opinion of Counsel to such effect
delivered to the Indenture Trustee and the Credit Enhancer.
Section 6.05 Delegation of Duties. In the ordinary course of business, the Servicer at any
time may delegate any of its duties hereunder to any Person, including any of its
Affiliates, that agrees to conduct such duties in accordance with standards comparable to
those with which the Servicer complies pursuant to Section 3.01. Such delegation shall not
relieve the Servicer of its liabilities and responsibilities with respect to such duties and
shall not constitute a resignation within the meaning of Section 6.04.
Section 6.06 Payment of Indenture Trustee's and Owner Trustee's Fees and Expenses;
Indemnification.
(a) After the Closing Date, the Servicer covenants and agrees to pay to the Owner
Trustee, the Indenture Trustee and any co-trustee of the Indenture Trustee or the Owner
Trustee from time to time, and the Owner Trustee, the Indenture Trustee and any such
co-trustee shall be entitled to, reasonable compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust and, in the
case of the Indenture Trustee, for so long as GMAC Mortgage Corporation is the Servicer
shall be as set forth in bid proposal dated as of March 10, 2006, agreed to by the Indenture
Trustee and the Servicer) for all services rendered by each of them in the execution of the
trusts created under the Trust Agreement and the Indenture and in the exercise and
performance of any of the powers and duties under the Trust Agreement or the Indenture, as
the case may be, of the Owner Trustee, the Indenture Trustee and any co-trustee, and the
Servicer will pay or reimburse the Indenture Trustee and any co-trustee upon request for all
reasonable expenses, disbursements and advances incurred or made by the Indenture Trustee or
any co-trustee in accordance with any of the provisions of this Agreement, the Indenture or
the Trust Agreement except any such expense, disbursement or advance as may arise from its
negligence, willful misfeasance or bad faith. In addition, the Indenture Trustee shall be
entitled to be reimbursed from the Servicer for all reasonable costs associated with the
transfer of servicing from the predecessor servicer pursuant to Section 7.02 hereunder,
including, without limitation, any reasonable 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 Indenture Trustee to correct any errors or
insufficiencies in the servicing data or otherwise to enable the Indenture Trustee to
service the Home Loans properly and effectively.
(b) The Servicer agrees to indemnify the Indenture Trustee and the Owner Trustee for, and
to hold the Indenture Trustee and the Owner Trustee, as the case may be, harmless against,
any loss, liability or expense incurred without negligence, bad faith or willful misconduct
on the part of the Indenture Trustee or the Owner Trustee, as the case may be, arising out
of, or in connection with, the acceptance and administration of the Issuer and the assets
thereof, including the costs and expenses (including reasonable legal fees and expenses) of
defending the Indenture Trustee or the Owner Trustee, as the case may be, against any claim
in connection with the exercise or performance of any of its powers or duties under any
Basic Document; provided that:
(i) with respect to any such claim, the Indenture Trustee or Owner Trustee, as the case
may be, shall have given the Servicer written notice thereof promptly after the Indenture
Trustee or Owner Trustee, as the case may be, shall have actual knowledge thereof;
(ii) while maintaining control over its own defense, the Issuer, the Indenture Trustee or
Owner Trustee, as the case may be, shall cooperate and consult fully with the Servicer in
preparing such defense; and
(iii) notwithstanding anything in this Agreement to the contrary, the Servicer shall not be
liable for settlement of any claim by the Indenture Trustee or the Owner Trustee, as the
case may be, entered into without the prior consent of the Servicer.
No termination of this Agreement or resignation or removal of the Indenture Trustee shall
affect the obligations created by this Section 6.06 of the Servicer to indemnify the
Indenture Trustee and the Owner Trustee under the conditions and to the extent set forth
herein.
Notwithstanding the foregoing, the indemnification provided by the Servicer in this
Section 6.06(b) shall not pertain to any loss, liability or expense of the Indenture Trustee
or the Owner Trustee, including the costs and expenses of defending itself against any
claim, incurred in connection with any actions taken by the Indenture Trustee or the Owner
Trustee at the direction of the Noteholders or Certificateholders, as the case may be,
pursuant to the terms of this Agreement.
ARTICLE VII
Default
Section 7.01 Servicing Default.
(a) If a Servicing Default shall occur and be continuing, then, and in every such case,
so long as a Servicing Default shall not have been remedied by the Servicer, either the
Issuer or the Indenture Trustee, upon acknowledgement of the occurrence of Servicing
Default, (in each case with the consent of the Credit Enhancer so long as no Credit Enhancer
Default exists) or the Credit Enhancer (so long as no Credit Enhancer Default exists), by
notice then given in writing to the Servicer, the Issuer and the Indenture Trustee, may
terminate all of the rights and obligations of the Servicer as servicer under this Agreement
other than its right to receive servicing compensation and expenses for servicing the Home
Loans hereunder during any period prior to the date of such termination, and the Issuer
(with the consent of the Credit Enhancer so long as no Credit Enhancer Default exist), the
Credit Enhancer or the Indenture Trustee (with the consent of the Credit Enhancer so long as
no Credit Enhancer Default exists), may exercise any and all other remedies available at law
or equity. Any such notice to the Servicer shall also be given to each Rating Agency, the
Credit Enhancer and the Issuer. On or after the receipt by the Servicer of such written
notice, all authority and power of the Servicer under this Agreement, whether with respect
to the Securities or the Home Loans or otherwise, shall pass to and be vested in the
Indenture Trustee, subject to Section 7.02 hereof, as pledgee of the Home Loans, pursuant to
and under this Section 7.01; and, without limitation, the Indenture Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments, and to do or
accomplish all other acts or things necessary or appropriate to effect the purposes of such
notice of termination, whether to complete the transfer and endorsement of each Home Loan
and related documents, or otherwise. The Servicer agrees to cooperate with the Issuer, the
Credit Enhancer and Indenture Trustee, as the case may be, in effecting the termination of
the responsibilities and rights of the Servicer hereunder, including, without limitation,
the transfer to the Indenture Trustee for the administration by it of all cash amounts
relating to the Home Loans that shall at the time be held by the Servicer and to be
deposited by it in the Custodial Account, or that have been deposited by the Servicer in the
Custodial Account or thereafter received by the Servicer with respect to the Home Loans, the
recordation of Assignments of Mortgages to the Indenture Trustee if MERS is not the
mortgagee of a Home Loan, and the delivery of Mortgage Files in its possession to the
Indenture Trustee. All reasonable costs and expenses (including, but not limited to,
attorneys' fees) incurred in connection with amending this Agreement to reflect such
succession as Servicer pursuant to this Section 7.01 shall be paid by the predecessor
Servicer (or if the predecessor Servicer is the Indenture Trustee, the initial Servicer)
upon presentation of reasonable documentation of such costs and expenses.
(b) Notwithstanding any termination of the activities of the Servicer hereunder, the
Servicer shall be entitled to receive, out of any late collection of a payment on a Home
Loan which was due prior to the notice terminating the Servicer's rights and obligations
hereunder and received after such notice, that portion to which the Servicer would have been
entitled pursuant to Sections 3.03 and 3.09 as well as its Servicing Fee in respect thereof,
and any other amounts payable to the Servicer hereunder the entitlement to which arose prior
to the termination of its activities hereunder.
Notwithstanding the foregoing, a delay in or failure of performance under clause (i)
or (ii) of the definition of Servicing Default, after the applicable grace periods specified
therein, shall not constitute a Servicing Default if such delay or failure could not be
prevented by the exercise of reasonable diligence by the Servicer and such delay or failure
was caused by an act of God or the public enemy, acts of declared or undeclared war, public
disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes,
earthquakes, floods or similar causes. The preceding sentence shall not relieve the
Servicer from using reasonable efforts to perform its respective obligations in a timely
manner in accordance with the terms of this Agreement. The Servicer shall provide the
Indenture Trustee, the Credit Enhancer and the Securityholders with notice of any such
failure or delay by it, together with a description of its efforts to so perform its
obligations. The Servicer shall immediately notify the Indenture Trustee, the Credit
Enhancer and the Issuer in writing of any Servicing Default.
Section 7.02 Indenture Trustee to Act; Appointment of Successor.
(a) On and after the time the Servicer receives a notice of termination pursuant to
Section 7.01 or sends a notice pursuant to Section 6.04, the Indenture Trustee as pledgee of
the Home Loans shall itself become, or shall appoint an affiliate of the Indenture Trustee
to become the successor in all respects to the Servicer in its capacity as servicer under
this Agreement and the transactions set forth or provided for herein and shall immediately
assume all of the obligations of the Servicer to make advances on Home Loans under Section
3.02(b) and will be subject to all other responsibilities, duties and liabilities relating
thereto placed on the Servicer by the terms and provisions hereof as soon as practicable,
but in no event later than 90 days after the Indenture Trustee becomes successor servicer.
During such 90 day period, the Indenture Trustee, with the consent of the Credit Enhancer,
may require the Servicer being terminated to continue to perform such servicing
responsibilities (other than making advances on the Home Loans under Section 3.02(b)) as the
Indenture Trustee deems appropriate. In such event, the Servicer being terminated shall
provide such services as directed by the Indenture Trustee until the earliest of the date
the Indenture Trustee notifies such Servicer to discontinue providing such services, the
date on which a successor servicer or the Indenture Trustee has assumed all
responsibilities, duties and liabilities of the Servicer hereunder or the expiration of the
90 day period. The Servicer shall be entitled to the Servicing Fee hereunder for any period
during which the Servicer is obligated to provide such services as if no termination of the
Servicer had occurred. Nothing in this Agreement or in the Trust Agreement shall be
construed to permit or require the Indenture Trustee to (i) succeed to the responsibilities,
duties and liabilities of the initial Servicer in its capacity as Seller under the Purchase
Agreement, (ii) be responsible or accountable for any act or omission of the Servicer prior
to the issuance of a notice of termination hereunder, (iii) require or obligate the
Indenture Trustee, in its capacity as successor Servicer, to purchase, repurchase or
substitute any Home Loan, (iv) fund any losses on any Permitted Investment directed by any
other Servicer, or (v) be responsible for the representations and warranties of the
Servicer. As compensation therefor, the Indenture Trustee shall be entitled to such
compensation as the Servicer would have been entitled to hereunder if no such notice of
termination had been given. Notwithstanding the foregoing, if the Indenture Trustee is (x)
unwilling to act as successor Servicer itself or to appoint an affiliate to become successor
Servicer, or (y) legally unable so to act, the Indenture Trustee as pledgee of the Home
Loans may (in the situation described in clause (x)) or shall (in the situation described in
clause (y)) appoint at the direction of the Credit Enhancer or, if the Credit Enhancer fail
to make such direction, petition a court of competent jurisdiction to appoint any
established housing and home finance institution, bank or other mortgage loan servicer
having a net worth of not less than $10,000,000 as the successor to the Servicer hereunder
in the assumption of all or any part of the responsibilities, duties or liabilities of the
Servicer hereunder; provided, that any such successor Servicer shall be acceptable to the
Credit Enhancer, as evidenced by the Credit Enhancer's prior written consent, which consent
shall not be unreasonably withheld; and provided further, that the appointment of any such
successor Servicer will not result in a Rating Event, if determined without regard to the
Policy. Pending appointment of a successor to the Servicer hereunder, unless the Indenture
Trustee is prohibited by law from so acting, the Indenture Trustee itself shall act or
appoint an affiliate to act in such capacity as provided above. In connection with such
appointment and assumption, the successor shall be entitled to receive compensation out of
payments on Home Loans in an amount equal to the compensation that the Servicer would
otherwise have received pursuant to Section 3.09 (or such other compensation as the
Indenture Trustee and such successor shall agree). The appointment of a successor Servicer
shall not affect any liability of the predecessor Servicer that may have arisen under this
Agreement prior to its termination as Servicer (including the obligation to purchase Home
Loans pursuant to Section 3.01, to pay any deductible under an insurance policy pursuant to
Section 3.04 or to indemnify the Indenture Trustee pursuant to Section 6.06), nor shall any
successor Servicer be liable for any acts or omissions of the predecessor Servicer or for
any breach by such Servicer of any of its representations or warranties contained herein or
in any related document or agreement. The Indenture Trustee and such successor shall take
such action, consistent with this Agreement and the requirements (including any notice
requirements) of applicable law, as shall be necessary to effectuate any such succession.
Notwithstanding the foregoing, the Indenture Trustee, in its capacity as successor Servicer,
shall not be responsible for the lack of information and/or documents that it cannot obtain
through reasonable efforts or for failing to take any action that the Indenture Trustee is
legally prohibited from taking by applicable law.
(b) Any successor, including the Indenture Trustee, to the Servicer as servicer shall
during its term as Servicer (i) continue to service and administer the Home Loans for the
benefit of the Securityholders, (ii) maintain in force a policy or policies of insurance
covering errors and omissions in the performance of its obligations as Servicer hereunder
and a fidelity bond in respect of its officers, employees and agents to the same extent as
the Servicer is so required pursuant to Section 3.13 and (iii) be bound by the terms of the
Insurance Agreement.
(c) Any successor Servicer, including the Indenture Trustee, shall not be deemed in
default or to have breached its duties hereunder if the predecessor Servicer shall fail to
deliver any required deposit to the Custodial Account or otherwise cooperate with any
required servicing transfer or succession hereunder.
(d) In connection with the termination or resignation of the Servicer hereunder, either
(i) the successor Servicer, including the Indenture Trustee if the Indenture Trustee is
acting as successor Servicer, shall represent and warrant that it is a member of MERS in
good standing and shall agree to comply in all material respects with the rules and
procedures of MERS in connection with the servicing of the Home Loans that are registered
with MERS, in which case the predecessor Servicer shall cooperate with the successor
Servicer in causing MERS to revise its records to reflect the transfer of servicing to the
successor Servicer as necessary under MERS' rules and regulations, or (ii) the predecessor
Servicer shall cooperate with the successor Servicer in causing MERS to execute and deliver
an assignment of Mortgage in recordable form to transfer the Mortgage from MERS to the
Indenture Trustee and to execute and deliver such other notices, documents and other
instruments as may be necessary or desirable to effect a transfer of such Home Loan or
servicing of such Home Loan on the MERS(R)System to the successor Servicer. The predecessor
Servicer shall file or cause to be filed any such assignment in the appropriate recording
office. The predecessor Servicer shall bear any and all fees of MERS, costs of preparing
any assignments of Mortgage, and fees and costs of filing any assignments of Mortgage that
may be required under this subsection (d). The successor Servicer shall cause such
assignment to be delivered to the Indenture Trustee or the Custodian promptly upon receipt
of the original with evidence of recording thereon or a copy certified by the public
recording office in which such assignment was recorded.
Section 7.03 Notification to Securityholders. Upon any termination of or appointment of a
successor to the Servicer pursuant to this Article VII or Section 6.04, the Indenture
Trustee shall give prompt written notice thereof to the Securityholders, the Credit
Enhancer, the Issuer and each Rating Agency.
ARTICLE VIII
Miscellaneous Provisions
Section 8.01 Amendment. This Agreement may be amended from time to time by the parties
hereto; provided, that any such amendment shall be accompanied by a letter from each Rating
Agency to the effect that such amendment will not result in a Rating Event, if determined
without regard to the Policy; and provided further, that the Credit Enhancer and the
Indenture Trustee shall consent thereto.
Section 8.02 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICTS OF LAW PROVISIONS (OTHER THAN
SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW) AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section 8.03 Notices. All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered at or mailed by
certified mail, return receipt requested, to (a) in the case of the Servicer, 000 Xxxxxx
Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000, Attention: Xxxxxxx Xxxxx, (b) in the case of the Credit
Enhancer, Financial Guaranty Insurance Company, 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Structured Finance Surveillance (GMACM Home Loan Trust 2006-HLTV1),
(c) in the case of Xxxxx'x, Home Mortgage Loan Monitoring Group, 4th Floor, 00 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, (d) in the case of Standard & Poor's, 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Residential Mortgage Surveillance Group, (e) in the case of
the Owner Trustee, Wilmington Trust Company, Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000-0000, (f) in the case of the Issuer, GMACM Home Loan Trust
2006-HLTV1, c/o the Owner Trustee at the address set forth in clause (e) above, and (g) in
the case of the Indenture Trustee, at the Corporate Trust Office of the Indenture Trustee;
or, with respect to each of the foregoing Persons, at such other address as shall be
designated by such Person in a written notice to the other foregoing Persons. Any notice
required or permitted to be mailed to a Securityholder shall be given by first class mail,
postage prepaid, at the address of such Securityholder as shown in the Note Register or
Certificate Register, as the case may be. Any notice so mailed within the time prescribed
in this Agreement shall be conclusively presumed to have been duly given, whether or not the
related Securityholder receives such notice. Any notice or other document required to be
delivered or mailed by the Indenture Trustee to any Rating Agency shall be given on a
reasonable efforts basis and only as a matter of courtesy and accommodation, and the
Indenture Trustee shall have no liability for failure to deliver any such notice or document
to any Rating Agency.
Section 8.04 Severability of Provisions. If any one or more of the covenants, agreements,
provisions or terms of this Agreement shall be for any reason whatsoever held invalid, then
such covenants, agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no way affect the
validity or enforceability of the other provisions of this Agreement or the Securities or
the rights of the Securityholders.
Section 8.05 Third-Party Beneficiaries. This Agreement shall inure to the benefit of and
be binding upon the parties hereto, the Securityholders, the Credit Enhancer, the Owner
Trustee and their respective successors and permitted assigns. Except as otherwise provided
in this Agreement, no other Person shall have any right or obligation hereunder.
Section 8.06 Counterparts. This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
Section 8.07 Effect of Headings and Table of Contents. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect the
construction hereof.
Section 8.08 Termination Upon Purchase by the Servicer or Liquidation of All Home Loans;
Partial Redemption.
(a) The respective obligations and responsibilities of the Servicer, the Issuer and the
Indenture Trustee created hereby shall terminate upon the last action required to be taken
by the Issuer pursuant to the Trust Agreement and by the Indenture Trustee pursuant to the
Indenture following the earlier of:
(i) the date on or before which the Indenture or the Trust Agreement is terminated, or
(ii) the purchase by the Servicer from the Issuer of all Home Loans and REO Property in
accordance with Section 8.08(b).
(b) The Servicer shall have the right to purchase from the Issuer all of the Home Loans
and REO Property if the Pool Balance as of any Payment Date is less than 10% of the Pool
Balance as of the Cut-Off Date (provided that a draw on the Policy would not occur as a
result of such purchase and provided further that the purchase price will provide sufficient
funds to pay the outstanding Note Balance and accrued and unpaid interest on the Notes to
the Payment Date on which such amounts are to be distributed to Securityholders), at a price
equal to 100% of the aggregate unpaid Principal Balance of all such remaining Home Loans,
plus accrued and unpaid interest thereon at the weighted average of the Loan Rates thereon
up to the date preceding the Payment Date on which such amounts are to be distributed to the
Securityholders (and, in the case of REO Property, the fair market value of the REO
Property), plus any amounts due and owing to the Credit Enhancer under the Insurance
Agreement (and any unpaid Servicing Fee shall be deemed to have been paid at such time). In
the event that the Servicer fails to exercise its right set forth in this clause (b), the
Credit Enhancer, as third party beneficiary hereunder, shall have the right to exercise such
right in the same manner as the Servicer but only if the Overcollateralization Amount is
less than the Required Overcollateralization Amount within 30 days of such exercise.
If such right is exercised by the Servicer or the Credit Enhancer, as applicable, the
Servicer or the Credit Enhancer, as applicable, shall deposit the amount calculated pursuant
to this Section 8.08(b) with the Indenture Trustee pursuant to Section 4.10 of the Indenture
and, upon the receipt of such deposit, the Indenture Trustee or Custodian shall release to
the Servicer or the Credit Enhancer, as applicable, the files pertaining to the Home Loans
being purchased. The Servicer or the Credit Enhancer, as applicable, at its expense, shall
prepare and deliver to the Indenture Trustee for execution, at the time the related Home
Loans are to be released to the Servicer, appropriate documents assigning each such Home
Loans from the Indenture Trustee or the Issuer to the Servicer, the Credit Enhancer or the
appropriate party.
Section 8.09 Certain Matters Affecting the Indenture Trustee. For all purposes of this
Agreement, in the performance of any of its duties or in the exercise of any of its powers
hereunder, the Indenture Trustee shall be subject to and entitled to the benefits of Article
VI of the Indenture.
Section 8.10 Owner Trustee Not Liable for Related Documents. The recitals contained herein
shall be taken as the statements of the Servicer, and the Owner Trustee and the Indenture
Trustee assume no responsibility for the correctness thereof. The Owner Trustee and the
Indenture Trustee make no representations as to the validity or sufficiency of this
Agreement, of any Basic Document or Related Document, or of the Certificates (other than the
signatures of the Owner Trustee and the Indenture Trustee on the Certificates) or the
Notes. The Owner Trustee and the Indenture Trustee shall at no time have any responsibility
or liability with respect to the sufficiency of the Trust Estate or its ability to generate
the payments to be distributed to Certificateholders under the Trust Agreement or the
Noteholders under the Indenture, including the compliance by the Depositor, the Sellers or
the Servicer with any warranty or representation made under any Basic Document or the
accuracy of any such warranty or representation, or any action of any person taken in the
name of the Owner Trustee or the Indenture Trustee.
ARTICLE IX
Compliance With Regulation AB
Section 9.01 Intent of the Parties; Reasonableness.
The Depositor, the Indenture Trustee and the Servicer acknowledge and agree
that the purpose of this Article IX is to facilitate compliance by the Depositor with the
provisions of Regulation AB and related rules and regulations of the Commission. The
Depositor shall not exercise its right to request delivery of information or other
performance under these provisions other than in good faith, or for purposes other than
compliance with the Securities Act, the Exchange Act and the rules and regulations of the
Commission under the Securities Act and the Exchange Act. Each of the Servicer and the
Indenture Trustee acknowledges that interpretations of the requirements of Regulation AB may
change over time, whether due to interpretive guidance provided by the Commission or its
staff, consensus among participants in the mortgage-backed securities markets, advice of
counsel, or otherwise, and agrees to comply with reasonable requests made by the Depositor
in good faith for delivery of information under these provisions on the basis of evolving
interpretations of Regulation AB. Each of the Servicer and the Indenture Trustee shall
cooperate reasonably with the Depositor to deliver to the Depositor (including any of its
assignees or designees), any and all disclosure, statements, reports, certifications,
records and any other information necessary in the reasonable, good faith determination of
the Depositor to permit the Depositor to comply with the provisions of Regulation AB.
Section 9.02 Additional Representations and Warranties of the Indenture Trustee.
(a) The Indenture Trustee shall be deemed to represent and warrant to the Depositor as of
the date hereof and on each date on which information is provided to the Depositor under
Sections 9.01, 9.02(b) or 9.03 that, except as disclosed in writing to the Depositor prior
to such date: (i) there are no material legal or governmental proceedings pending (or known
to be contemplated) against it that would be material to Noteholders; (ii) there are no
relationships or transactions (as described in Item 1119(b) of Regulation AB) relating to
the Indenture Trustee with respect to the Depositor or any sponsor, issuing entity,
servicer, trustee, originator, significant obligor, enhancement or support provider or other
material transaction party (as each of such terms are used in Regulation AB) relating to the
Securitization Transaction contemplated by the Servicing Agreement, as identified by the
Depositor to the Indenture Trustee in writing as of the Closing Date (each, a "Transaction
Party") that are outside the ordinary course of business or on terms other than would be
obtained in an arm's length transaction with an unrelated third party, apart from the
Securitization Transaction, and that are material to the investors' understanding of the
Notes; and (iii) the Indenture Trustee is not an affiliate (as contemplated by Item 1119(a)
of Regulation AB) of any Transaction Party. The Depositor shall notify the Indenture
Trustee of any change in the identity of a Transaction Party after the Closing Date.
(b) If so requested by the Depositor on any date following the Closing Date, the
Indenture Trustee shall, within five Business Days following such request, confirm in
writing the accuracy of the representations and warranties set forth in paragraph (a) of
this Section or, if any such representation and warranty is not accurate as of the date of
such confirmation, provide the pertinent facts, in writing, to the Depositor. Any such
request from the Depositor shall not be given more than once each calendar quarter, unless
the Depositor shall have a reasonable basis for questioning the accuracy of any of the
representations and warranties.
Section 9.03 Information to Be Provided by the Indenture Trustee.
For so long as the Company is subject to Exchange Act reporting requirements with
respect to the Trust Fund, for the purpose of satisfying the Depositor's reporting
obligation under the Exchange Act with respect to any class of Notes, the Indenture Trustee
shall provide to the Depositor a written description of (a) any litigation or governmental
proceedings pending against the Indenture Trustee as of the last day of each calendar month
that would be material to Noteholders, and (b) any affiliations or relationships (as
described in Item 1119 of Regulation AB) that develop following the Closing Date between the
Indenture Trustee and any Transaction Party of the type described in Section 9.02(a)(ii) or
9.02(a)(iii) as of the last day of each calendar year. Any descriptions required with
respect to legal proceedings, as well as updates to previously provided descriptions, under
this Section 9.03 shall be given no later than five Business Days prior to the Determination
Date following the month in which the relevant event occurs, and any notices and
descriptions required with respect to affiliations, as well as updates to previously
provided descriptions, under this Section 9.03 shall be given no later than January 31 of
the calendar year following the year in which the relevant event occurs. As of the related
Payment Date with respect to each Report on Form 10-D with respect to the Notes filed by or
on behalf of the Depositor, and as of March 15 preceding the date each Report on Form 10-K
with respect to the Notes is filed, the Indenture Trustee shall be deemed to represent and
warrant that any information previously provided by the Indenture Trustee under this
Article IX is materially correct and does not have any material omissions unless the
Indenture Trustee has provided an update to such information. The Depositor will allow the
Indenture Trustee to review any disclosure relating to material litigation against the
Indenture Trustee prior to filing such disclosure with the Commission to the extent the
Depositor changes the information provided by the Indenture Trustee.
Section 9.04 Report on Assessment of Compliance and Attestation.
On or before March 15 of each calendar year, the Indenture Trustee shall:
(a) deliver to the Depositor a report (in form and substance reasonably satisfactory to
the Depositor) regarding the Indenture Trustee's assessment of compliance with the
applicable Servicing Criteria during the immediately preceding calendar year, as required
under Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation AB. Such
report shall be signed by an authorized officer of the Indenture Trustee, and shall address
each of the Servicing Criteria specified on Exhibit G hereto; and
(b) deliver to the Depositor a report of a registered public accounting firm satisfying
the requirements of Rule 2-01 of Regulation S-X under the Securities Act and the Exchange
Act that attests to, and reports on, the assessment of compliance made by the Indenture
Trustee and delivered pursuant to the preceding paragraph. Such attestation shall be in
accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and
the Exchange Act.
Section 9.05 Indemnification; Remedies.
(a) The Indenture Trustee shall indemnify the Depositor, each affiliate of the Depositor,
the Servicer and each affiliate of the Servicer, and the respective present and former
directors, officers, employees and agents of each of the foregoing, and shall hold each of
them harmless from and against any losses, damages, penalties, fines, forfeitures, legal
fees and expenses and related costs, judgments, and any other costs, fees and expenses that
any of them may sustain arising out of or based upon:
(i) (A) any untrue statement of a material fact contained or
alleged to be contained in any information, report, certification, accountants' attestation
or other material provided under this Article IX by or on behalf of the Indenture Trustee
(collectively, the "Indenture Trustee Information"), or (B) the omission or alleged omission
to state in the Indenture Trustee Information a material fact required to be stated in the
Indenture Trustee Information or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; or
(ii) any failure by the Indenture Trustee to deliver any
information, report, certification, or other material when and as required under this
Article IX, other than a failure by the Indenture Trustee to deliver an accountants'
attestation.
(b) In the case of any failure of performance described in clause (ii) of Section
9.05(a), as well as a failure to deliver an accountants' attestation, the Indenture Trustee
shall (i) promptly reimburse the Depositor for all costs reasonably incurred by the
Depositor in order to obtain the information, report, certification, accountants'
attestation or other material not delivered by the Indenture Trustee as required and
(ii) cooperate with the Depositor to mitigate any damages that may result from such failure.
(c) The Depositor and the Servicer shall indemnify the Indenture Trustee, each affiliate
of the Indenture Trustee and the respective present and former directors, officers,
employees and agents of the Indenture Trustee, and shall hold each of them harmless from and
against any losses, damages, penalties, fines, forfeitures, legal fees and expenses and
related costs, judgments, and any other costs, fees and expenses that any of them may
sustain arising out of or based upon (i) any untrue statement of a material fact contained
or alleged to be contained in any information provided under this Servicing Agreement by or
on behalf of the Depositor or Servicer for inclusion in any report filed with Commission
under the Exchange Act (collectively, the "GMACM Information"), or (ii) the omission or
alleged omission to state in the GMACM Information a material fact required to be stated in
the GMACM Information or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(d) Notwithstanding any provision in this Section 9.05 to the contrary, the parties agree
that none of the Indenture Trustee, the Depositor or the Servicer shall be liable to the
other for any consequential or punitive damages whatsoever, whether in contract, tort
(including negligence and strict liability), or any other legal or equitable principle;
provided, however, that such limitation shall not be applicable with respect to third party
claims made against a party.
IN WITNESS WHEREOF, the Servicer, the Issuer and the Indenture Trustee have caused
this Agreement to be duly executed by their respective officers or representatives all as of
the day and year first above written.
GMAC MORTGAGE CORPORATION,
as Servicer
By:
Name:
Title:
GMACM HOME LOAN TRUST 2006-HLTV1, as Issuer
By: Wilmington Trust Company, not in its
individual capacity but solely as
Owner Trustee
By:
Name:
Title:
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
as Indenture Trustee
By:
Name:
Title:
Acknowledged and Agreed
Solely with respect to Article IX hereof:
RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.
By:
Name:
Title:
EXHIBIT A
HOME LOAN SCHEDULE
[TO BE PROVIDED UPON REQUEST]
EXHIBIT B
LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PREMISES:
That JPMorgan Chase Bank, National Association, as indenture trustee (the "Indenture
Trustee"), under the indenture dated as of March 30, 2006 (the "Indenture"), between GMACM
Home Loan Trust 2006-HLTV1, as issuer and the Indenture Trustee, a banking association
organized and existing under the laws of the United States of America, and having its
principal office located at 0 Xxx Xxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, hath
made, constituted and appointed, and does by these presents make, constitute and appoint
GMAC Mortgage Corporation, a corporation organized and existing under the laws of the
Commonwealth of Pennsylvania, its true and lawful Attorney-in-Fact, with full power and
authority to sign, execute, acknowledge, deliver, file for record, and record any instrument
on its behalf and to perform such other act or acts as may be customarily and reasonably
necessary and appropriate to effectuate the following enumerated transactions in respect of
any of the Mortgages securing a Home Loan and the related Mortgage Notes for which the
undersigned is acting as Indenture Trustee for various Securityholders (whether the
undersigned is named therein as mortgagee or beneficiary or has become mortgagee by virtue
of endorsement of such Mortgage Note secured by any such Mortgage) and for which GMAC
Mortgage Corporation is acting as Servicer pursuant to a Servicing Agreement dated as of
March 30, 2006 (the "Servicing Agreement").
This appointment shall apply to the following enumerated transactions only:
1. The modification or re-recording of a Mortgage, where said modification or
re-recording is for the purpose of correcting the Mortgage to conform same to the
original intent of the parties thereto or to correct title errors discovered after
such title insurance was issued and said modification or re-recording, in either
instance, does not adversely affect the Lien of the Mortgage as insured.
2. The subordination of the Lien of a Mortgage to an easement in favor of a public
utility company or a government agency or unit with powers of eminent domain; this
section shall include, without limitation, the execution of partial
satisfactions/releases, partial reconveyances or the execution of requests to
trustees to accomplish same.
3. With respect to a Mortgage, the foreclosure, the taking of a deed in lieu of
foreclosure, or the completion of judicial or non-judicial foreclosure or
termination, cancellation or rescission of any such foreclosure, including, without
limitation, any and all of the following acts:
a. The substitution of trustee(s) serving under a Mortgage, in accordance with
state law and the Mortgage;
b. The preparation and issuance of statements of breach or non-performance;
c. The preparation and filing of notices of default and/or notices of sale;
d. Cancellations/rescissions of notices of default and/or notices of sale;
e. The taking of a deed in lieu of foreclosure; and
f. The preparation and execution of such other documents and the performance of
such other actions as may be necessary under the terms of the Mortgage or
state law to expeditiously complete said transactions in this paragraph 3.
4. The conveyance of the properties to the mortgage insurer, or the closing of the title
to the property to be acquired as real estate owned, or conveyance of title to real
estate owned.
5. The completion of loan assumption agreements and modification agreements.
6. The full satisfaction/release of a Mortgage or full reconveyance upon payment and
discharge of all sums secured thereby, including, without limitation, cancellation of
the related Mortgage Note.
7. The assignment of any Mortgage and the related Mortgage Note, in connection with the
repurchase of the Home Loan secured and evidenced thereby.
8. The full assignment of a Mortgage upon payment and discharge of all sums secured
thereby in conjunction with the refinancing thereof, including, without limitation,
the assignment of the related Mortgage Note.
9. The modification or re-recording of a Mortgage, where said modification or
re-recording is for the purpose of any modification pursuant to Section 3.01 of the
Servicing Agreement.
10. The subordination of the Lien of a Mortgage, where said subordination is in
connection with any modification pursuant to Section 3.01 of the Servicing Agreement,
and the execution of partial satisfactions/releases in connection with such same
Section 3.01.
Capitalized terms used herein that are not otherwise defined shall have the meanings
ascribed thereto in Appendix A to the Indenture.
This Power of Attorney is effective for one (1) year from the date hereof or the
earlier of (i) revocation by the Indenture Trustee, (ii) the Attorney shall no longer be
retained on behalf of the Indenture Trustee or an affiliate of the Indenture Trustee; or
(iii) the expiration of one year from the date of execution.
The authority granted to the attorney-in-fact by the Power of Attorney is not
transferable to any other party or entity.
This Agreement shall be governed by, and construed in accordance with, the laws of
the State of New York without regard to its conflicts of law principles.
All actions heretofore taken by said Attorney, which the Attorney could properly have
taken pursuant to this Power of Attorney, be, and hereby are, ratified and affirmed.
IN WITNESS WHEREOF, JPMorgan Chase Bank, National Association, as Indenture Trustee,
and these present to be signed and acknowledged in its name and behalf by
___________________ its duly elected and authorized Senior Vice President this _______ day
of ___________________, 200_.
XX Xxxxxx Xxxxx Bank, National Association
By:
Name:
Title:
Witness
Printed Name:
Witness
Printed Name:
ACKNOWLEDGEMENT
STATE OF
COUNTY OF
Personally appeared before me the above-named _________________________, known or
proved to me to be the same person who executed the foregoing instrument and to be the
[Title] JPMorgan Chase Bank, National Association, as Trustee
for __________ _______, and acknowledged that s/he executed the same as her/his free act and
deed and the free act and deed of the Trustee.
Subscribed and sworn before me this _______ day of _______________, 200__.
NOTARY PUBLIC
My Commission expires:
EXHIBIT C
FORM OF REQUEST FOR RELEASE
DATE:
TO:
RE: REQUEST FOR RELEASE OF DOCUMENTS
In connection with your administration of the Home Loans, we request the release of the
Mortgage File described below.
Servicing Agreement Dated: March 30, 2006
Series #:
Account #:
Pool #:
Loan #:
Borrower Name(s):
Reason for Document Request: (circle one) Home Loan Prepaid in Full
Home Loan Repurchased
"We hereby certify that all amounts received or to be received in connection with such
payments which are required to be deposited have been or will be so deposited as provided in
the Servicing Agreement."
GMAC Mortgage Corporation
Authorized Signature
******************************************************************************
TO CUSTODIAN: Please acknowledge this request, and check off documents being enclosed with
a copy of this form. You should retain this form for your files in accordance with the
terms of the Servicing Agreement.
Enclosed Documents: [ ] Mortgage Note
Name
Title
Date
EXHIBIT D-1
FORM OF FORM 10-K CERTIFICATION
I, [identify the certifying individual], certify that:
1. I have reviewed this report on Form 10-K and all reports on Form 10-D required
to be filed in respect of the period covered by this report on Form 10-K of the trust (the
Exchange Act periodic reports) pursuant to the Servicing Agreement dated March 30, 2006 (the
"Agreement") among GMAC Mortgage Corporation (the "Servicer"), Home Loan Trust 2006-HLTV1
(the "Issuer") and JPMorgan Chase Bank, National Association (the "Indenture Trustee") and
acknowledged and agreed to by Residential Asset Mortgage Products, Inc.
2. Based on my knowledge, Exchange Act periodic reports, taken as a whole, do not
contain any untrue statement of a material fact or omit to state a material fact necessary
to make the statements made, in light of the circumstances under which such statements were
made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the servicing information required to be provided to
the Indenture Trustee by the Servicer under the Servicing Agreement is included in these
reports;
4. Based on my knowledge, all of the distribution, servicing and other
information required to be provided under Form 10-D for the period covered by this report is
included in the Exchange Act periodic reports;
5. I am responsible for reviewing the activities performed by the Servicer and
based on my knowledge and the compliance review conducted in preparing the servicer
compliance statement required in this report under Item 1123 of Regulation AB and except as
disclosed in the Exchange Act periodic reports, the Servicer has fulfilled its obligations
under the Agreement; and
6. All of the reports on assessment of compliance with servicing criteria for
asset-backed securities and their related attestation reports on assessment of compliance
with servicing criteria for asset-backed securities required to be included in this report
in accordance with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 have
been included as an exhibit to this report, except as otherwise disclosed in this report.
Any material instances of noncompliance described in such reports have been disclosed in
this report on Form 10-K.
In giving the certifications above, I have reasonably relied on the information
provided to me by the following unaffiliated parties: [the Indenture Trustee].
IN WITNESS WHEREOF, I have duly executed this certificate as of _________, 20__.
____________________________*
Name:
Title:
* to be signed by the senior officer in charge of the servicing functions of the Servicer.
EXHIBIT D-2
FORM OF BACK-UP CERTIFICATION TO FORM 10-K CERTIFICATE
The undersigned, a Responsible Officer of JPMorgan Chase Bank, National Association
(the "Indenture Trustee") certifies that:
(a) The Indenture Trustee has performed all of the duties specifically required to
be performed by it pursuant to the provisions of the Servicing Agreement dated as of March
30, 2006 (the "Agreement") by and among GMACM Home Loan Trust 2006-HLTV1, as depositor, GMAC
Mortgage Corporation, as Servicer, and the Indenture Trustee in accordance with the
standards set forth therein.
(b) Based on my knowledge, the information that is provided by the Indenture
Trustee pursuant to Section 4.02(b) of the Agreement is accurate as of the last day of the
20[ ] calendar year.
Capitalized terms used and not defined herein shall have the meanings given such
terms in the Agreement.
IN WITNESS WHEREOF, I have duly executed this certificate as of _________, 20__.
____________________________*
Name:
Title:
EXHIBIT E
SERVICING CRITERIA
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by the Indenture Trustee shall address,
at a minimum, the criteria identified as below as "Applicable Servicing Criteria":
-------------------------------------------------------------------------- ------------------
APPLICABLE
SERVICING
SERVICING CRITERIA CRITERIA
-------------------------------------------------------------------------- ------------------
REFERENCE CRITERIA
----------------- -------------------------------------------------------- ------------------
GENERAL SERVICING CONSIDERATIONS
----------------- -------------------------------------------------------- ------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any
performance or other triggers and events of default in
accordance with the transaction agreements.
----------------- -------------------------------------------------------- ------------------
1122(d)(1)(ii) If any material servicing activities are outsourced to
third parties, policies and procedures are instituted
to monitor the third party's performance and
compliance with such servicing activities.
----------------- -------------------------------------------------------- ------------------
1122(d)(1)(iii) Any requirements in the transaction agreements to
maintain a back-up servicer for the pool assets are
maintained.
----------------- -------------------------------------------------------- ------------------
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in
effect on the party participating in the servicing
function throughout the reporting period in the amount
of coverage required by and otherwise in accordance
with the terms of the transaction agreements.
----------------- -------------------------------------------------------- ------------------
CASH COLLECTION AND ADMINISTRATION
----------------- -------------------------------------------------------- ------------------
1122(d)(2)(i) Payments on pool assets are deposited into the |X| (as to
appropriate custodial bank accounts and related bank
clearing accounts no more than two business days accounts held by
following receipt, or such other number of days Indenture
specified in the transaction agreements. Trustee)*
----------------- -------------------------------------------------------- ------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an |X| (as to
obligor or to an investor are made only by authorized investors only)*
personnel.
----------------- -------------------------------------------------------- ------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding collections,
cash flows or distributions, and any interest or other
fees charged for such advances, are made, reviewed and
approved as specified in the transaction agreements.
----------------- -------------------------------------------------------- ------------------
The related accounts for the transaction, such as cash
reserve accounts or accounts established as a form of |X| (as to
overcollateralization, are separately maintained accounts held by
(e.g., with respect to commingling of cash) as set Indenture
1122(d)(2)(iv) forth in the transaction agreements. Trustee)*
----------------- -------------------------------------------------------- ------------------
1122(d)(2)(v) Each custodial account is maintained at a federally
insured depository institution as set forth in the
transaction agreements. For purposes of this
criterion, "federally insured depository institution"
with respect to a foreign financial institution means
a foreign financial institution that meets the
requirements of Rule 13k-1(b)(1) of the Securities
Exchange Act.*
----------------- -------------------------------------------------------- ------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent
unauthorized access.
----------------- -------------------------------------------------------- ------------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for
all asset-backed securities related bank accounts,
including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically
accurate; (B) prepared within 30 calendar days after
the bank statement cutoff date, or such other number
of days specified in the transaction agreements; (C)
reviewed and approved by someone other than the person
who prepared the reconciliation; and (D) contain
explanations for reconciling items. These reconciling
items are resolved within 90 calendar days of their
original identification, or such other number of days
specified in the transaction agreements.
----------------- -------------------------------------------------------- ------------------
INVESTOR REMITTANCES AND REPORTING
----------------- -------------------------------------------------------- ------------------
1122(d)(3)(i) Reports to investors, including those to be filed with
the Commission, are maintained in accordance with the
transaction agreements and applicable Commission
requirements. Specifically, such reports (A) are
prepared in accordance with timeframes and other terms
set forth in the transaction agreements; (B) provide
information calculated in accordance with the terms
specified in the transaction agreements; (C) are filed
with the Commission as required by its rules and
regulations; and (D) agree with investors' or the
trustee's records as to the total unpaid principal
balance and number of pool assets serviced by the
servicer.
----------------- -------------------------------------------------------- ------------------
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in |X|
accordance with timeframes, distribution priority and
other terms set forth in the transaction agreements.
----------------- -------------------------------------------------------- ------------------
Disbursements made to an investor are posted within
two business days to the servicer's investor records,
or such other number of days specified in the |X|
1122(d)(3)(iii) transaction agreements.
----------------- -------------------------------------------------------- ------------------
Amounts remitted to investors per the investor reports
agree with cancelled checks, or other form of payment, |X|
1122(d)(3)(iv) or custodial bank statements.
----------------- -------------------------------------------------------- ------------------
POOL ASSET ADMINISTRATION
----------------- -------------------------------------------------------- ------------------
1122(d)(4)(i) Collateral or security on pool assets is maintained as
required by the transaction agreements or related
asset pool documents.
----------------- -------------------------------------------------------- ------------------
Pool assets and related documents are safeguarded as
1122(d)(4)(ii) required by the transaction agreements
----------------- -------------------------------------------------------- ------------------
1122(d)(4)(iii) Any additions, removals or substitutions to the asset
pool are made, reviewed and approved in accordance
with any conditions or requirements in the transaction
agreements.
----------------- -------------------------------------------------------- ------------------
1122(d)(4)(iv) Payments on pool assets, including any payoffs, made
in accordance with the related pool asset documents
are posted to the servicer's obligor records
maintained no more than two business days after
receipt, or such other number of days specified in the
transaction agreements, and allocated to principal,
interest or other items (e.g., escrow) in accordance
with the related pool asset documents.
----------------- -------------------------------------------------------- ------------------
1122(d)(4)(v) The servicer's records regarding the pool assets agree
with the servicer's records with respect to an
obligor's unpaid principal balance.
----------------- -------------------------------------------------------- ------------------
1122(d)(4)(vi) Changes with respect to the terms or status of an
obligor's pool asset (e.g., loan modifications or
re-agings) are made, reviewed and approved by
authorized personnel in accordance with the
transaction agreements and related pool asset
documents.
----------------- -------------------------------------------------------- ------------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance
plans, modifications and deeds in lieu of foreclosure,
foreclosures and repossessions, as applicable) are
initiated, conducted and concluded in accordance with
the timeframes or other requirements established by
the transaction agreements.
----------------- -------------------------------------------------------- ------------------
1122(d)(4)(viii) Records documenting collection efforts are maintained
during the period a pool asset is delinquent in
accordance with the transaction agreements. Such
records are maintained on at least a monthly basis, or
such other period specified in the transaction
agreements, and describe the entity's activities in
monitoring delinquent pool assets including, for
example, phone calls, letters and payment rescheduling
plans in cases where delinquency is deemed temporary
(e.g., illness or unemployment).
----------------- -------------------------------------------------------- ------------------
1122(d)(4)(ix) Adjustments to interest rates or rates of return for
pool assets with variable rates are computed based on
the related pool asset documents.
----------------- -------------------------------------------------------- ------------------
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such
as escrow accounts): (A) such funds are analyzed, in
accordance with the obligor's pool asset documents, on
at least an annual basis, or such other period
specified in the transaction agreements; (B) interest
on such funds is paid, or credited, to obligors in
accordance with applicable pool asset documents and
state laws; and (C) such funds are returned to the
obligor within 30 calendar days of full repayment of
the related pool asset, or such other number of days
specified in the transaction agreements.
----------------- -------------------------------------------------------- ------------------
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or
insurance payments) are made on or before the related
penalty or expiration dates, as indicated on the
appropriate bills or notices for such payments,
provided that such support has been received by the
servicer at least 30 calendar days prior to these
dates, or such other number of days specified in the
transaction agreements.
----------------- -------------------------------------------------------- ------------------
1122(d)(4)(xii) Any late payment penalties in connection with any
payment to be made on behalf of an obligor are paid
from the servicer's funds and not charged to the
obligor, unless the late payment was due to the
obligor's error or omission.
----------------- -------------------------------------------------------- ------------------
Disbursements made on behalf of an obligor are posted
within two business days to the obligor's records
maintained by the servicer, or such other number of
1122(d)(4)(xiii) days specified in the transaction agreements.
----------------- -------------------------------------------------------- ------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts
are recognized and recorded in accordance with the
transaction agreements.
----------------- -------------------------------------------------------- ------------------
Any external enhancement or other support, identified
in Item 1114(a)(1) through (3) or Item 1115 of
Regulation AB, is maintained as set forth in the |X|
1122(d)(4)(xv) transaction agreements.
----------------- -------------------------------------------------------- ------------------
* Subject to clarification by the Commission.
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