EXHIBIT 4
GS MORTGAGE SECURITIES CORP.,
Depositor,
XXXXXX LOAN SERVICING LP,
Servicer,
SELECT PORTFOLIO SERVICING, INC.,
Servicer,
AVELO MORTGAGE, L.L.C.,
Servicer,
X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION,
Custodian,
U.S. BANK NATIONAL ASSOCIATION,
Custodian,
DEUTSCHE BANK NATIONAL TRUST COMPANY,
Custodian,
LASALLE BANK NATIONAL ASSOCIATION,
Trustee,
and
XXXXX FARGO BANK, N.A.,
Master Servicer and Securities Administrator
________________________________________________
POOLING AND SERVICING AGREEMENT
Dated as of May 1, 2006
________________________________________________
GSAMP TRUST 2006-HE3
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-HE3
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.................................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans................................
Section 2.02 Acceptance by the Trustee of the Mortgage Loans.............
Section 2.03 Representations, Warranties and Covenants of the Servicers
and each Custodian.......................................
Section 2.04 Execution and Delivery of Certificates......................
Section 2.05 REMIC Matters...............................................
Section 2.06 Representations and Warranties of the Depositor.............
Section 2.07 Enforcement of Obligations for Breach of Mortgage Loan
Representations..........................................
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicers to Service Mortgage Loans.........................
Section 3.02 Subservicing Agreements between a Servicer and Subservicers.
Section 3.03 Successor Subservicers......................................
Section 3.04 Liability of the Servicer...................................
Section 3.05 No Contractual Relationship between Subservicers, the
Trustee and the Master Servicer..........................
Section 3.06 Assumption or Termination of Subservicing Agreements by
Master Servicer..........................................
Section 3.07 Collection of Certain Mortgage Loan Payments................
Section 3.08 Subservicing Accounts.......................................
Section 3.09 Collection of Taxes, Assessments and Similar Items; Escrow
Accounts.................................................
Section 3.10 Collection Account..........................................
Section 3.11 Withdrawals from the Collection Account.....................
Section 3.12 Investment of Funds in the Collection Account and the
Distribution Account.....................................
Section 3.13 Maintenance of Hazard Insurance, Errors and Omissions and
Fidelity Coverage........................................
Section 3.14 Enforcement of Due-on-Sale Clauses; Assumption Agreements...
Section 3.15 Realization upon Defaulted Mortgage Loans...................
Section 3.16 Release of Mortgage Files...................................
Section 3.17 Title, Conservation and Disposition of REO Property.........
Section 3.18 Notification of Adjustments.................................
Section 3.19 Access to Certain Documentation and Information Regarding
the Mortgage Loans.......................................
Section 3.20 Documents, Records and Funds in Possession of the Servicers
to Be Held for the Securities Administrator for the
Benefit of the Trustee...................................
Section 3.21 Servicing Compensation......................................
Section 3.22 Annual Statement as to Compliance...........................
Section 3.23 Annual Reports on Assessment of Compliance with Servicing
Criteria; Annual Independent Public Accountants'
Attestation Report.......................................
Section 3.24 Master Servicer to Act as Servicer..........................
Section 3.25 Compensating Interest.......................................
Section 3.26 Credit Reporting; Xxxxx-Xxxxx-Xxxxxx Act....................
Section 3.27 Excess Reserve Fund Account; Distribution Account...........
Section 3.28 Optional Purchase of Delinquent Mortgage Loans..............
Section 3.29 Transfer of Servicing for Certain Mortgage Loans............
ARTICLE IV
DISTRIBUTIONS AND
ADVANCES BY THE SERVICER
Section 4.01 Advances....................................................
Section 4.02 Priorities of Distribution..................................
Section 4.03 Monthly Statements to Certificateholders....................
Section 4.04 Certain Matters Relating to the Determination of LIBOR......
Section 4.05 Allocation of Applied Realized Loss Amounts.................
Section 4.06 Supplemental Interest Trust.................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates............................................
Section 5.02 Certificate Register; Registration of Transfer and Exchange
of Certificates..........................................
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates...........
Section 5.04 Persons Deemed Owners.......................................
Section 5.05 Access to List of Certificateholders' Names and Addresses...
Section 5.06 Maintenance of Office or Agency.............................
ARTICLE VI
THE DEPOSITOR AND THE SERVICERS
Section 6.01 Respective Liabilities of the Depositor and the Servicers...
Section 6.02 Merger or Consolidation of the Depositor or a Servicer......
Section 6.03 Limitation on Liability of the Depositor, the Servicers and
Others...................................................
Section 6.04 Limitation on Resignation of a Servicer.....................
Section 6.05 Additional Indemnification by the Servicers; Third Party
Claims...................................................
Section 6.06 Servicing Rights Pledge.....................................
ARTICLE VII
DEFAULT
Section 7.01 Events of Default...........................................
Section 7.02 Master Servicer to Act; Appointment of Successor Servicer...
Section 7.03 Notification to Certificateholders..........................
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE CUSTODIANS
Section 8.01 Duties of the Trustee.......................................
Section 8.02 Certain Matters Affecting each Custodian and the Trustee....
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans.......
Section 8.04 Trustee May Own Certificates................................
Section 8.05 Trustee's Fees and Expenses and Indemnification.............
Section 8.06 Eligibility Requirements for the Trustee....................
Section 8.07 Resignation and Removal of the Trustee......................
Section 8.08 Successor Trustee...........................................
Section 8.09 Merger or Consolidation of the Trustee......................
Section 8.10 Appointment of Co-Trustee or Separate Trustee...............
Section 8.11 Tax Matters.................................................
Section 8.12 Periodic Filings............................................
Section 8.13 Tax Treatment of Upper-Tier Carry Forward Amounts, Basis
Risk Carry Forward Amounts, the Supplemental Interest
Trust and the Interest Rate Swap Agreement...............
Section 8.14 Custodial Responsibilities..................................
Section 8.15 Limitations on Custodial Responsibilities...................
ARTICLE IX
ADMINISTRATION OF THE MORTGAGE LOANS BY THE MASTER SERVICER
Section 9.01 Duties of the Master Servicer; Enforcement of Servicer's
Obligations..............................................
Section 9.02 Maintenance of Fidelity Bond and Errors and Omissions
Insurance................................................
Section 9.03 Representations and Warranties of the Master Servicer.......
Section 9.04 Master Servicer Events of Default...........................
Section 9.05 Waiver of Default...........................................
Section 9.06 Successor to the Master Servicer............................
Section 9.07 Compensation of the Master Servicer.........................
Section 9.08 Merger or Consolidation.....................................
Section 9.09 Resignation of the Master Servicer..........................
Section 9.10 Assignment or Delegation of Duties by the Master Servicer...
Section 9.11 Limitation on Liability of the Master Servicer..............
Section 9.12 Indemnification; Third Party Claims.........................
ARTICLE X
CONCERNING THE SECURITIES ADMINISTRATOR
Section 10.01 Duties of Securities Administrator..........................
Section 10.02 Certain Matters Affecting the Securities Administrator......
Section 10.03 Securities Administrator Not Liable for Certificates or
Mortgage Loans...........................................
Section 10.04 Securities Administrator May Own Certificates...............
Section 10.05 Securities Administrator's Fees and Expenses................
Section 10.06 Eligibility Requirements for Securities Administrator.......
Section 10.07 Resignation and Removal of Securities Administrator.........
Section 10.08 Successor Securities Administrator..........................
Section 10.09 Merger or Consolidation of Securities Administrator.........
Section 10.10 Assignment or Delegation of Duties by the Securities
Administrator............................................
ARTICLE XI
TERMINATION
Section 11.01 Termination upon Liquidation or Purchase of the Mortgage
Loans....................................................
Section 11.02 Final Distribution on the Certificates......................
Section 11.03 Additional Termination Requirements.........................
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment...................................................
Section 12.02 Recordation of Agreement; Counterparts......................
Section 12.03 Governing Law...............................................
Section 12.04 Intention of Parties........................................
Section 12.05 Notices.....................................................
Section 12.06 Severability of Provisions..................................
Section 12.07 Assignment; Sales; Advance Facilities.......................
Section 12.08 Limitation on Rights of Certificateholders..................
Section 12.09 Inspection and Audit Rights.................................
Section 12.10 Certificates Nonassessable and Fully Paid...................
Section 12.11 Waiver of Jury Trial........................................
Section 12.12 Limitation of Damages.......................................
Section 12.13 Rights of the Swap Provider.................................
Section 12.14 No Solicitation.............................................
Section 12.15 Regulation AB Compliance; Intent of the Parties;
Reasonableness...........................................
SCHEDULES
Schedule I Mortgage Loan Schedule
Schedule II Representations and Warranties of Xxxxxx Loan Servicing LP, as
Servicer
Schedule III Representations and Warranties of Select Portfolio Servicing,
Inc., as Servicer
Schedule IV Representations and Warranties of Avelo Mortgage, L.L.C., as
Servicer
Schedule V Representations and Warranties of X.X. Xxxxxx Trust Company,
National Association, as Custodian
Schedule VI Representations and Warranties of U.S. Bank National Association,
as Custodian
Schedule VII Representations and Warranties of Deutsche Bank National Trust
Company, as Custodian
EXHIBITS
Exhibit A-1 Form of Class A, Class M and Class B Certificates
Exhibit B Form of Class P Certificate
Exhibit C [Reserved]
Exhibit D-1 Form of Class R Certificate
Exhibit D-2 Form of Class RC Certificate
Exhibit D-3 Form of Class RX Certificate
Exhibit E Form of Class X Certificate
Exhibit F Form of Initial Certification of the Custodians
Exhibit G Form of Document Certification and Exception Report of the
Custodians
Exhibit H Form of Residual Transfer Affidavit
Exhibit I Form of Transferor Certificate
Exhibit J Form of Rule 144A Letter
Exhibit K Form of Investment Letter (Non-Rule 144A)
Exhibit L Form of Request for Release
Exhibit M Contents of Each Mortgage File
Exhibit N [Reserved]
Exhibit O Form of Certification to be provided with Form 10-K
Exhibit P Form of Securities Administrator Certification to be provided to
Depositor
Exhibit Q-1 Form of Servicer Certification to be provided to Depositor
Exhibit Q-2 Form of Subservicer Certification to be provided to Depositor
Exhibit Q-3 Form of Master Servicer Certification to be provided to Depositor
Exhibit R Form of Power of Attorney
Exhibit S Representations and Warranties Agreement
Exhibit T Servicing Criteria
Exhibit U Additional Form 10-D Disclosure
Exhibit V Additional Form 10-K Disclosure
Exhibit W Form 8-K Disclosure Information
Exhibit X Interest Rate Swap Agreement
Exhibit Y Aames Agreements
Exhibit Z Fremont Agreements
Exhibit AA Impac Agreements
Exhibit BB Meritage Agreements
Exhibit CC Form of Servicer Remittance Report
Exhibit DD Form of Monthly Defaulted Loan Report
Exhibit EE Form of Realized Loss Report
THIS POOLING AND SERVICING AGREEMENT, dated as of May 1, 2006, among
GS MORTGAGE SECURITIES CORP., a Delaware corporation (the "Depositor"), XXXXXX
LOAN SERVICING LP, a Delaware limited partnership, as a servicer ("Xxxxxx"),
SELECT PORTFOLIO SERVICING, INC., a Utah corporation, as a servicer ("SPS"),
AVELO MORTGAGE, L.L.C., a Delaware limited liability company, as a servicer
("Avelo", and together with Xxxxxx and SPS, the "Servicers"), X.X. XXXXXX TRUST
COMPANY, NATIONAL ASSOCIATION, a national banking association, as a custodian
("X.X. Xxxxxx"), U.S. BANK NATIONAL ASSOCIATION, a national banking association,
as a custodian (a "U.S. Bank"), DEUTSCHE BANK NATIONAL TRUST COMPANY, a national
banking association, as a custodian ("Deutsche Bank", and together with X.X.
Xxxxxx and U.S. Bank, the "Custodians"), LASALLE BANK NATIONAL ASSOCIATION, as
trustee (the "Trustee"), and XXXXX FARGO BANK, N.A., as securities administrator
(in such capacity, the "Securities Administrator") and as master servicer (in
such capacity, the "Master Servicer").
W I T N E S S E T H:
In consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
PRELIMINARY STATEMENT
The Securities Administrator shall elect that five segregated asset
pools within the Trust Fund (exclusive of (i) the Prepayment Premiums, (ii) the
Interest Rate Swap Agreement, (iii) the Supplemental Interest Trust, (iv) the
Excess Reserve Fund Account and (v) the right of the LIBOR Certificates to
receive Upper-Tier Carry Forward Amounts and, without duplication, Basis Risk
Carry Forward Amounts and the obligation to pay Class IO Shortfalls) be treated
for federal income tax purposes as comprising five REMICs (each, a "Trust REMIC"
or, in the alternative, Pooling-Tier REMIC-1, Pooling-Tier REMIC-2, the
Lower-Tier REMIC, the Upper-Tier REMIC and the Class X REMIC, respectively). The
Class X Interest, Class IO Interest and each Class of LIBOR Certificates (other
than the right of each Class of LIBOR Certificates to receive (i) Upper-Tier
Carry Forward Amounts and, without duplication, Basis Risk Carry Forward Amounts
and (ii) the obligation to pay Class IO Shortfalls) represents ownership of a
regular interest in a REMIC for purposes of the REMIC Provisions.
The Class RX Certificates represent ownership of the sole class of
residual interest in the Class X REMIC for purposes of the REMIC Provisions. The
Class RC Certificates represent ownership of the sole class of residual interest
in Pooling-Tier REMIC-1 for purposes of the REMIC Provisions. The Class R
Certificates represent ownership of the sole class of residual interest in each
of Pooling-Tier REMIC-2, the Lower-Tier REMIC and the Upper-Tier REMIC for
purposes of the REMIC Provisions. The Start-up Day for each Trust REMIC is the
Closing Date. The latest possible maturity date for each regular interest is the
latest date referenced in Section 2.05.
The Class X REMIC shall hold as assets the Class UT-X Interest, the
Class UT-IO Interest and the Class UT-3 Interest as set out below. The
Upper-Tier REMIC shall hold as assets the several classes of uncertificated
Lower-Tier Regular Interests, set out below. The Lower-Tier REMIC shall hold as
assets the several classes of uncertificated Pooling-Tier REMIC-2 Regular
Interests. Pooling-Tier REMIC-2 shall hold as assets the several classes of
uncertificated Pooling-Tier REMIC-1 Regular Interests. Pooling-Tier REMIC-1
shall hold as assets the assets of the Trust Fund (exclusive of (i) the
Prepayment Premiums, (ii) the Interest Rate Swap Agreement, (iii) the
Supplemental Interest Trust, (iv) the Excess Reserve Fund Account and (v) the
right of the LIBOR Certificates to receive Upper-Tier Carry Forward Amounts and,
without duplication, Basis Risk Carry Forward Amounts and the obligation to pay
Class IO Shortfalls). Each such Lower Tier Regular Interest is hereby designated
as a regular interest in the Lower Tier REMIC. The Class LT-A-1, Class LT-A-2A,
Class LT-A-2B, Class LT-A-2C, Class LT-A-2D, Class LT-M-1, Class LT-M-2, Class
LT-M-3, Class LT-M-4, Class LT-M-5, Class LT-M-6, Class LT-M-7, Class LT-M-8,
Class LT-M-9, Class LT-B-1 and Class LT-B-2 Interests are hereby designated the
LT-Accretion Directed Classes (the "LT-Accretion Directed Classes").
The Class X REMIC shall hold as assets the Class UT-X Interest, the
Class UT-IO Interest and the Class UT-3 Interest issued by the Upper-Tier REMIC,
the Class X Interest shall represent the regular interest issued by the Class X
REMIC and the Class RX Interest shall represent the sole class residual interest
in the Class X REMIC. The Class X Certificates represent beneficial ownership of
the Class X Interest, the Class IO Interest, the Supplemental Interest Trust and
the Excess Reserve Fund Account.
For federal income tax purposes, each Class of LIBOR Certificates,
the Class X Certificates, and the Class P Certificates represent beneficial
ownership of portions of the Trust Fund, which shall be treated as a grantor
trust as more fully described in Section 8.11.
Pooling-Tier REMIC-1
Pooling-Tier REMIC-1 shall issue the following interests in
Pooling-Tier REMIC-1, and each such interest is hereby designated as a regular
interest in the Pooling-Tier REMIC-1. Pooling-Tier REMIC-1 Interests with an "I"
in their designation shall relate to Loan Group I and Pooling Tier REMIC-1
Interests with a "II" in their designation shall relate to Loan Group II.
Pooling-Tier REMIC-1 shall also issue the Class RC Certificates. The Class RC
Certificates are hereby designated as the sole class of residual interest in
Pooling-Tier REMIC-1. The Class RC Certificates shall have a $100 Class
Certificate Balance and shall have no interest rate.
Initial
Pooling-Tier
Pooling-Tier Pooling-Tier REMIC-1 REMIC-1 Principal
REMIC-1 Interest Interest Rate Amount
--------------------- --------------------- -------------------
Class PT1-I-1 (1) $ 5,848,118.08
Class PT1-I-2A (2) $ 3,743,850.35
Class PT1-I-2B (3) $ 3,743,850.35
Class PT1-I-3A (2) $ 4,362,575.24
Class PT1-I-3B (3) $ 4,362,575.24
Class PT1-I-4A (2) $ 4,967,296.48
Class PT1-I-4B (3) $ 4,967,296.48
Class PT1-I-5A (2) $ 5,550,486.83
Class PT1-I-5B (3) $ 5,550,486.83
Class PT1-I-6A (2) $ 6,108,230.30
Class PT1-I-6B (3) $ 6,108,230.30
Class PT1-I-7A (2) $ 6,633,252.82
Class PT1-I-7B (3) $ 6,633,252.82
Class PT1-I-8A (2) $ 7,120,446.26
Class PT1-I-8B (3) $ 7,120,446.26
Class PT1-I-9A (2) $ 7,511,071.57
Class PT1-I-9B (3) $ 7,511,071.57
Class PT1-I-10A (2) $ 7,523,728.01
Class PT1-I-10B (3) $ 7,523,728.01
Class PT1-I-11A (2) $ 7,166,591.66
Class PT1-I-11B (3) $ 7,166,591.66
Class PT1-I-12A (2) $ 6,826,504.80
Class PT1-I-12B (3) $ 6,826,504.80
Class PT1-I-13A (2) $ 6,502,650.05
Class PT1-I-13B (3) $ 6,502,650.05
Class PT1-I-14A (2) $ 6,194,249.10
Class PT1-I-14B (3) $ 6,194,249.10
Class PT1-I-15A (2) $ 5,900,520.21
Class PT1-I-15B (3) $ 5,900,520.21
Class PT1-I-16A (2) $ 5,620,843.59
Class PT1-I-16B (3) $ 5,620,843.59
Class PT1-I-17A (2) $ 5,354,503.11
Class PT1-I-17B (3) $ 5,354,503.11
Class PT1-I-18A (2) $ 5,100,859.80
Class PT1-I-18B (3) $ 5,100,859.80
Class PT1-I-19A (2) $ 4,877,035.64
Class PT1-I-19B (3) $ 4,877,035.64
Class PT1-I-20A (2) $ 4,658,574.58
Class PT1-I-20B (3) $ 4,658,574.58
Class PT1-I-21A (2) $ 4,890,842.47
Class PT1-I-21B (3) $ 4,890,842.47
Class PT1-I-22A (2) $ 8,400,254.87
Class PT1-I-22B (3) $ 8,400,254.87
Class PT1-I-23A (2) $12,014,233.29
Class PT1-I-23B (3) $12,014,233.29
Class PT1-I-24A (2) $ 9,757,566.86
Class PT1-I-24B (3) $ 9,757,566.86
Class PT1-I-25A (2) $ 6,183,371.60
Class PT1-I-25B (3) $ 6,183,371.60
Class PT1-I-26A (2) $ 1,549,877.04
Class PT1-I-26B (3) $ 1,549,877.04
Class PT1-I-27A (2) $ 794,629.91
Class PT1-I-27B (3) $ 794,629.91
Class PT1-I-28A (2) $ 2,407,229.00
Class PT1-I-28B (3) $ 2,407,229.00
Class PT1-I-29A (2) $ 2,270,962.35
Class PT1-I-29B (3) $ 2,270,962.35
Class PT1-I-30A (2) $ 2,143,636.26
Class PT1-I-30B (3) $ 2,143,636.26
Class PT1-I-31A (2) $ 2,023,629.89
Class PT1-I-31B (3) $ 2,023,629.89
Class PT1-I-32A (2) $ 1,910,515.19
Class PT1-I-32B (3) $ 1,910,515.19
Class PT1-I-33A (2) $ 1,803,916.16
Class PT1-I-33B (3) $ 1,803,916.16
Class PT1-I-34A (2) $ 1,702,962.47
Class PT1-I-34B (3) $ 1,702,962.47
Class PT1-I-35A (2) $ 1,608,248.17
Class PT1-I-35B (3) $ 1,608,248.17
Class PT1-I-36A (2) $ 1,518,947.74
Class PT1-I-36B (3) $ 1,518,947.74
Class PT1-I-37A (2) $ 1,434,745.70
Class PT1-I-37B (3) $ 1,434,745.70
Class PT1-I-38A (2) $ 1,355,345.48
Class PT1-I-38B (3) $ 1,355,345.48
Class PT1-I-39A (2) $ 1,280,464.45
Class PT1-I-39B (3) $ 1,280,464.45
Class PT1-I-40A (2) $ 1,209,802.36
Class PT1-I-40B (3) $ 1,209,802.36
Class PT1-I-41A (2) $ 1,143,201.98
Class PT1-I-41B (3) $ 1,143,201.98
Class PT1-I-42A (2) $ 1,080,380.95
Class PT1-I-42B (3) $ 1,080,380.95
Class PT1-I-43A (2) $ 1,021,119.71
Class PT1-I-43B (3) $ 1,021,119.71
Class PT1-I-44A (2) $ 965,212.56
Class PT1-I-44B (3) $ 965,212.56
Class PT1-I-45A (2) $ 921,843.57
Class PT1-I-45B (3) $ 921,843.57
Class PT1-I-46A (2) $ 915,811.67
Class PT1-I-46B (3) $ 915,811.67
Class PT1-I-47A (2) $ 865,955.07
Class PT1-I-47B (3) $ 865,955.07
Class PT1-I-48A (2) $ 818,904.59
Class PT1-I-48B (3) $ 818,904.59
Class PT1-I-49A (2) $ 774,498.54
Class PT1-I-49B (3) $ 774,498.54
Class PT1-I-50A (2) $ 732,584.52
Class PT1-I-50B (3) $ 732,584.52
Class PT1-I-51A (2) $ 693,019.49
Class PT1-I-51B (3) $ 693,019.49
Class PT1-I-52A (2) $ 655,667.94
Class PT1-I-52B (3) $ 655,667.94
Class PT1-I-53A (2) $ 620,403.33
Class PT1-I-53B (3) $ 620,403.33
Class PT1-I-54A (2) $ 587,105.62
Class PT1-I-54B (3) $ 587,105.62
Class PT1-I-55A (2) $ 555,662.23
Class PT1-I-55B (3) $ 555,662.23
Class PT1-I-56A (2) $ 525,967.33
Class PT1-I-56B (3) $ 525,967.33
Class PT1-I-57A (2) $ 498,009.38
Class PT1-I-57B (3) $ 498,009.38
Class PT1-I-58A (2) $ 472,237.48
Class PT1-I-58B (3) $ 472,237.48
Class PT1-I-59A (2) $ 447,113.31
Class PT1-I-59B (3) $ 447,113.31
Class PT1-I-60A (2) $ 423,391.93
Class PT1-I-60B (3) $ 423,391.93
Class PT1-I-61A (2) $ 6,949,291.40
Class PT1-I-61B (3) $ 6,949,291.40
Class PT1-II-1 (4) $17,193,585.61
Class PT1-II-2A (5) $11,006,807.65
Class PT1-II-2B (6) $11,006,807.65
Class PT1-II-3A (5) $12,825,840.26
Class PT1-II-3B (6) $12,825,840.26
Class PT1-II-4A (5) $14,603,702.52
Class PT1-II-4B (6) $14,603,702.52
Class PT1-II-5A (5) $16,318,264.67
Class PT1-II-5B (6) $16,318,264.67
Class PT1-II-6A (5) $17,958,013.70
Class PT1-II-6B (6) $17,958,013.70
Class PT1-II-7A (5) $19,501,564.18
Class PT1-II-7B (6) $19,501,564.18
Class PT1-II-8A (5) $20,933,898.24
Class PT1-II-8B (6) $20,933,898.24
Class PT1-II-9A (5) $22,082,324.93
Class PT1-II-9B (6) $22,082,324.93
Class PT1-II-10A (5) $22,119,534.49
Class PT1-II-10B (6) $22,119,534.49
Class PT1-II-11A (5) $21,069,564.34
Class PT1-II-11B (6) $21,069,564.34
Class PT1-II-12A (5) $20,069,719.20
Class PT1-II-12B (6) $20,069,719.20
Class PT1-II-13A (5) $19,117,595.95
Class PT1-II-13B (6) $19,117,595.95
Class PT1-II-14A (5) $18,210,906.40
Class PT1-II-14B (6) $18,210,906.40
Class PT1-II-15A (5) $17,347,352.29
Class PT1-II-15B (6) $17,347,352.29
Class PT1-II-16A (5) $16,525,111.41
Class PT1-II-16B (6) $16,525,111.41
Class PT1-II-17A (5) $15,742,078.39
Class PT1-II-17B (6) $15,742,078.39
Class PT1-II-18A (5) $14,996,374.70
Class PT1-II-18B (6) $14,996,374.70
Class PT1-II-19A (5) $14,338,338.36
Class PT1-II-19B (6) $14,338,338.36
Class PT1-II-20A (5) $13,696,069.42
Class PT1-II-20B (6) $13,696,069.42
Class PT1-II-21A (5) $14,378,930.03
Class PT1-II-21B (6) $14,378,930.03
Class PT1-II-22A (5) $24,696,497.13
Class PT1-II-22B (6) $24,696,497.13
Class PT1-II-23A (5) $35,321,485.21
Class PT1-II-23B (6) $35,321,485.21
Class PT1-II-24A (5) $28,686,953.64
Class PT1-II-24B (6) $28,686,953.64
Class PT1-II-25A (5) $18,178,926.90
Class PT1-II-25B (6) $18,178,926.90
Class PT1-II-26A (5) $ 4,556,591.96
Class PT1-II-26B (6) $ 4,556,591.96
Class PT1-II-27A (5) $ 2,336,188.09
Class PT1-II-27B (6) $ 2,336,188.09
Class PT1-II-28A (5) $ 7,077,181.00
Class PT1-II-28B (6) $ 7,077,181.00
Class PT1-II-29A (5) $ 6,676,561.15
Class PT1-II-29B (6) $ 6,676,561.15
Class PT1-II-30A (5) $ 6,302,226.24
Class PT1-II-30B (6) $ 6,302,226.24
Class PT1-II-31A (5) $ 5,949,411.11
Class PT1-II-31B (6) $ 5,949,411.11
Class PT1-II-32A (5) $ 5,616,857.31
Class PT1-II-32B (6) $ 5,616,857.31
Class PT1-II-33A (5) $ 5,303,459.34
Class PT1-II-33B (6) $ 5,303,459.34
Class PT1-II-34A (5) $ 5,006,658.53
Class PT1-II-34B (6) $ 5,006,658.53
Class PT1-II-35A (5) $ 4,728,201.33
Class PT1-II-35B (6) $ 4,728,201.33
Class PT1-II-36A (5) $ 4,465,660.76
Class PT1-II-36B (6) $ 4,465,660.76
Class PT1-II-37A (5) $ 4,218,109.30
Class PT1-II-37B (6) $ 4,218,109.30
Class PT1-II-38A (5) $ 3,984,675.02
Class PT1-II-38B (6) $ 3,984,675.02
Class PT1-II-39A (5) $ 3,764,527.05
Class PT1-II-39B (6) $ 3,764,527.05
Class PT1-II-40A (5) $ 3,556,782.64
Class PT1-II-40B (6) $ 3,556,782.64
Class PT1-II-41A (5) $ 3,360,979.52
Class PT1-II-41B (6) $ 3,360,979.52
Class PT1-II-42A (5) $ 3,176,287.55
Class PT1-II-42B (6) $ 3,176,287.55
Class PT1-II-43A (5) $ 3,002,061.29
Class PT1-II-43B (6) $ 3,002,061.29
Class PT1-II-44A (5) $ 2,837,695.94
Class PT1-II-44B (6) $ 2,837,695.94
Class PT1-II-45A (5) $ 2,710,192.43
Class PT1-II-45B (6) $ 2,710,192.43
Class PT1-II-46A (5) $ 2,692,458.83
Class PT1-II-46B (6) $ 2,692,458.83
Class PT1-II-47A (5) $ 2,545,881.93
Class PT1-II-47B (6) $ 2,545,881.93
Class PT1-II-48A (5) $ 2,407,554.91
Class PT1-II-48B (6) $ 2,407,554.91
Class PT1-II-49A (5) $ 2,277,002.46
Class PT1-II-49B (6) $ 2,277,002.46
Class PT1-II-50A (5) $ 2,153,776.48
Class PT1-II-50B (6) $ 2,153,776.48
Class PT1-II-51A (5) $ 2,037,456.51
Class PT1-II-51B (6) $ 2,037,456.51
Class PT1-II-52A (5) $ 1,927,644.06
Class PT1-II-52B (6) $ 1,927,644.06
Class PT1-II-53A (5) $ 1,823,967.17
Class PT1-II-53B (6) $ 1,823,967.17
Class PT1-II-54A (5) $ 1,726,072.88
Class PT1-II-54B (6) $ 1,726,072.88
Class PT1-II-55A (5) $ 1,633,630.27
Class PT1-II-55B (6) $ 1,633,630.27
Class PT1-II-56A (5) $ 1,546,328.17
Class PT1-II-56B (6) $ 1,546,328.17
Class PT1-II-57A (5) $ 1,464,132.62
Class PT1-II-57B (6) $ 1,464,132.62
Class PT1-II-58A (5) $ 1,388,364.02
Class PT1-II-58B (6) $ 1,388,364.02
Class PT1-II-59A (5) $ 1,314,499.69
Class PT1-II-59B (6) $ 1,314,499.69
Class PT1-II-60A (5) $ 1,244,759.57
Class PT1-II-60B (6) $ 1,244,759.57
Class PT1-II-61A (5) $20,430,708.10
Class PT1-II-61B (6) $20,430,708.10
Class PT1-R (7) $ 100
--------------------
(1) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-1 Interest Rate") equal to the Pooling-Tier
REMIC-1 Loan Group I WAC Rate.
(2) For any Distribution Date (and the related Interest Accrual Period) this
Pooling-Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-1 Interest Rate") equal to the product of
(i) 2 and (ii) the Pooling-Tier REMIC-1 Loan Group I WAC Rate, subject to
a maximum rate equal to the applicable Fixed Swap Rate.
(3) For any Distribution Date (and the related Interest Accrual Period) this
Pooling-Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-1 Interest Rate") equal to the excess, if
any, of (A) the product of (i) 2 and (ii) the Pooling-Tier REMIC-1 Loan
Group I WAC Rate over (B) the applicable Fixed Swap Rate.
(4) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-1 Interest Rate") equal to the Pooling-Tier
REMIC-1 Loan Group II WAC Rate.
(5) For any Distribution Date (and the related Interest Accrual Period) this
Pooling-Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-1 Interest Rate") equal to the product of
(i) 2 and (ii) the Pooling-Tier REMIC-1 Loan Group II WAC Rate, subject to
a maximum rate equal to the applicable Fixed Swap Rate.
(6) For any Distribution Date (and the related Interest Accrual Period) this
Pooling-Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-1 Interest Rate") equal to the excess, if
any, of (A) the product of (i) 2 and (ii) the Pooling-Tier REMIC-1 Loan
Group II WAC Rate over (B) the applicable Fixed Swap Rate.
(7) The Class PT1-R Interest shall not bear interest.
On each Distribution Date, the Securities Administrator shall first
pay from the Trust Fund and charge as an expense of Pooling-Tier REMIC-1 all
expenses of the Trust for such Distribution Date. Such expense, other than
Servicing Fees and Trustee Fees, shall be allocated in the same manner as
Realized Losses.
On each Distribution Date, the interest distributable in respect of
the Mortgage Loans from the related Loan Group for such Distribution Date shall
be deemed to be distributed to the Pooling-Tier REMIC-1 Regular Interests at the
rates shown above.
On each Distribution Date, Realized Losses, Subsequent Recoveries
and payments of principal in respect of the Group I Mortgage Loans shall be
allocated to the Class RC Certificates pursuant to Section 4.02(a)(iii) until
its Class Certificate Balance is reduced to zero, then to the outstanding
Pooling-Tier REMIC-1 Regular Interest relating to Loan Group I with the lowest
numerical denomination (other than the Class PT1-I-1 Interest) until the
Pooling-Tier REMIC-1 Principal Amount of such interest is reduced to zero,
provided that, with respect to Pooling-Tier REMIC-1 Regular Interests relating
to Loan Group I with the same numerical denomination, such Realized Losses and
payments of principal shall be allocated pro rata between such Pooling-Tier
REMIC-1 Regular Interests, and then to the Class PT1-I-1 Interest until the
Pooling-Tier REMIC-1 Principal Amount of such interest is reduced to zero.
On each Distribution Date, Realized Losses, Subsequent Recoveries
and payments of principal in respect of the Group II Mortgage Loans shall be
allocated to the outstanding Pooling-Tier REMIC-1 Regular Interest relating to
Loan Group II with the lowest numerical denomination (other than the Class
PT1-II-1 Interest) until the Pooling-Tier REMIC-1 Principal Amount of such
interest is reduced to zero, provided that, with respect to Pooling-Tier REMIC-1
Regular Interests relating to Loan Group II with the same numerical
denomination, such Realized Losses and payments of principal shall be allocated
pro rata between such Pooling-Tier REMIC-1 Regular Interests, and then to the
Class PT1-II-1 Interest until the Pooling-Tier REMIC-1 Principal Amount of such
interest is reduced to zero.
Pooling-Tier REMIC-2
Pooling-Tier REMIC-2 shall issue the following interests in
Pooling-Tier REMIC-2, and each such interest, other than the Class PT2-R
Interest, is hereby designated as a regular interest in Pooling-Tier REMIC-2.
Pooling-Tier REMIC-2 Interests with an "I" in their designation shall relate to
Loan Group I and Pooling Tier REMIC-2 Interests with a "II" in their designation
shall relate to Loan Group II. The Class PT2-R Interest is hereby designated as
the sole class of residual interest in Pooling-Tier REMIC-2 and shall be
represented by the Class R Certificates.
Pooling-Tier Pooling-Tier REMIC-2 Corresponding Corresponding Corresponding
Pooling-Tier REMIC-2 REMIC-2 Initial Principal Pooling-Tier REMIC-2 Pooling-Tier REMIC-1 Scheduled Crossover
Interest Interest Rate Amount IO Regular Interest Distribution Date
----------------------- --------------- --------------------- --------------------- ---------------------- --------------------
Class PT2-I-1 (1) $ 5,848,068.08 N/A N/A N/A
Class PT2-I-2A (2) $ 3,743,850.35 Class PT2-I-IO-2 N/A N/A
Class PT2-I-2B (3) $ 3,743,850.35 N/A N/A N/A
Class PT2-I-3A (2) $ 4,362,575.24 Class PT2-I-IO-3 N/A N/A
Class PT2-I-3B (3) $ 4,362,575.24 N/A N/A N/A
Class PT2-I-4A (2) $ 4,967,296.48 Class PT2-I-IO-4 N/A N/A
Class PT2-I-4B (3) $ 4,967,296.48 N/A N/A N/A
Class PT2-I-5A (2) $ 5,550,486.83 Class PT2-I-IO-5 N/A N/A
Class PT2-I-5B (3) $ 5,550,486.83 N/A N/A N/A
Class PT2-I-6A (2) $ 6,108,230.30 Class PT2-I-IO-6 N/A N/A
Class PT2-I-6B (3) $ 6,108,230.30 N/A N/A N/A
Class PT2-I-7A (2) $ 6,633,252.82 Class PT2-I-IO-7 N/A N/A
Class PT2-I-7B (3) $ 6,633,252.82 N/A N/A N/A
Class PT2-I-8A (2) $ 7,120,446.26 Class PT2-I-IO-8 N/A N/A
Class PT2-I-8B (3) $ 7,120,446.26 N/A N/A N/A
Class PT2-I-9A (2) $ 7,511,071.57 Class PT2-I-IO-9 N/A N/A
Class PT2-I-9B (3) $ 7,511,071.57 N/A N/A N/A
Class PT2-I-10A (2) $ 7,523,728.01 Class PT2-I-IO-10 N/A N/A
Class PT2-I-10B (3) $ 7,523,728.01 N/A N/A N/A
Class PT2-I-11A (2) $ 7,166,591.66 Class PT2-I-IO-11 N/A N/A
Class PT2-I-11B (3) $ 7,166,591.66 N/A N/A N/A
Class PT2-I-12A (2) $ 6,826,504.80 Class PT2-I-IO-12 N/A N/A
Class PT2-I-12B (3) $ 6,826,504.80 N/A N/A N/A
Class PT2-I-13A (2) $ 6,502,650.05 Class PT2-I-IO-13 N/A N/A
Class PT2-I-13B (3) $ 6,502,650.05 N/A N/A N/A
Class PT2-I-14A (2) $ 6,194,249.10 Class PT2-I-IO-14 N/A N/A
Class PT2-I-14B (3) $ 6,194,249.10 N/A N/A N/A
Class PT2-I-15A (2) $ 5,900,520.21 Class PT2-I-IO-15 N/A N/A
Class PT2-I-15B (3) $ 5,900,520.21 N/A N/A N/A
Class PT2-I-16A (2) $ 5,620,843.59 Class PT2-I-IO-16 N/A N/A
Class PT2-I-16B (3) $ 5,620,843.59 N/A N/A N/A
Class PT2-I-17A (2) $ 5,354,503.11 Class PT2-I-IO-17 N/A N/A
Class PT2-I-17B (3) $ 5,354,503.11 N/A N/A N/A
Class PT2-I-18A (2) $ 5,100,859.80 Class PT2-I-IO-18 N/A N/A
Class PT2-I-18B (3) $ 5,100,859.80 N/A N/A N/A
Class PT2-I-19A (2) $ 4,877,035.64 Class PT2-I-IO-19 N/A N/A
Class PT2-I-19B (3) $ 4,877,035.64 N/A N/A N/A
Class PT2-I-20A (2) $ 4,658,574.58 Class PT2-I-IO-20 N/A N/A
Class PT2-I-20B (3) $ 4,658,574.58 N/A N/A N/A
Class PT2-I-21A (2) $ 4,890,842.47 Class PT2-I-IO-21 N/A N/A
Class PT2-I-21B (3) $ 4,890,842.47 N/A N/A N/A
Class PT2-I-22A (2) $ 8,400,254.87 Class PT2-I-IO-22 N/A N/A
Class PT2-I-22B (3) $ 8,400,254.87 N/A N/A N/A
Class PT2-I-23A (2) $ 12,014,233.29 Class PT2-I-IO-23 N/A N/A
Class PT2-I-23B (3) $ 12,014,233.29 N/A N/A N/A
Class PT2-I-24A (2) $ 9,757,566.86 Class PT2-I-IO-24 N/A N/A
Class PT2-I-24B (3) $ 9,757,566.86 N/A N/A N/A
Class PT2-I-25A (2) $ 6,183,371.60 Class PT2-I-IO-25 N/A N/A
Class PT2-I-25B (3) $ 6,183,371.60 N/A N/A N/A
Class PT2-I-26A (2) $ 1,549,877.04 Class PT2-I-IO-26 N/A N/A
Class PT2-I-26B (3) $ 1,549,877.04 N/A N/A N/A
Class PT2-I-27A (2) $ 794,629.91 Class PT2-I-IO-27 N/A N/A
Class PT2-I-27B (3) $ 794,629.91 N/A N/A N/A
Class PT2-I-28A (2) $ 2,407,229.00 Class PT2-I-IO-28 N/A N/A
Class PT2-I-28B (3) $ 2,407,229.00 N/A N/A N/A
Class PT2-I-29A (2) $ 2,270,962.35 Class PT2-I-IO-29 N/A N/A
Class PT2-I-29B (3) $ 2,270,962.35 N/A N/A N/A
Class PT2-I-30A (2) $ 2,143,636.26 Class PT2-I-IO-30 N/A N/A
Class PT2-I-30B (3) $ 2,143,636.26 N/A N/A N/A
Class PT2-I-31A (2) $ 2,023,629.89 Class PT2-I-IO-31 N/A N/A
Class PT2-I-31B (3) $ 2,023,629.89 N/A N/A N/A
Class PT2-I-32A (2) $ 1,910,515.19 Class PT2-I-IO-32 N/A N/A
Class PT2-I-32B (3) $ 1,910,515.19 N/A N/A N/A
Class PT2-I-33A (2) $ 1,803,916.16 Class PT2-I-IO-33 N/A N/A
Class PT2-I-33B (3) $ 1,803,916.16 N/A N/A N/A
Class PT2-I-34A (2) $ 1,702,962.47 Class PT2-I-IO-34 N/A N/A
Class PT2-I-34B (3) $ 1,702,962.47 N/A N/A N/A
Class PT2-I-35A (2) $ 1,608,248.17 Class PT2-I-IO-35 N/A N/A
Class PT2-I-35B (3) $ 1,608,248.17 N/A N/A N/A
Class PT2-I-36A (2) $ 1,518,947.74 Class PT2-I-IO-36 N/A N/A
Class PT2-I-36B (3) $ 1,518,947.74 N/A N/A N/A
Class PT2-I-37A (2) $ 1,434,745.70 Class PT2-I-IO-37 N/A N/A
Class PT2-I-37B (3) $ 1,434,745.70 N/A N/A N/A
Class PT2-I-38A (2) $ 1,355,345.48 Class PT2-I-IO-38 N/A N/A
Class PT2-I-38B (3) $ 1,355,345.48 N/A N/A N/A
Class PT2-I-39A (2) $ 1,280,464.45 Class PT2-I-IO-39 N/A N/A
Class PT2-I-39B (3) $ 1,280,464.45 N/A N/A N/A
Class PT2-I-40A (2) $ 1,209,802.36 Class PT2-I-IO-40 N/A N/A
Class PT2-I-40B (3) $ 1,209,802.36 N/A N/A N/A
Class PT2-I-41A (2) $ 1,143,201.98 Class PT2-I-IO-41 N/A N/A
Class PT2-I-41B (3) $ 1,143,201.98 N/A N/A N/A
Class PT2-I-42A (2) $ 1,080,380.95 Class PT2-I-IO-42 N/A N/A
Class PT2-I-42B (3) $ 1,080,380.95 N/A N/A N/A
Class PT2-I-43A (2) $ 1,021,119.71 Class PT2-I-IO-43 N/A N/A
Class PT2-I-43B (3) $ 1,021,119.71 N/A N/A N/A
Class PT2-I-44A (2) $ 965,212.56 Class PT2-I-IO-44 N/A N/A
Class PT2-I-44B (3) $ 965,212.56 N/A N/A N/A
Class PT2-I-45A (2) $ 921,843.57 Class PT2-I-IO-45 N/A N/A
Class PT2-I-45B (3) $ 921,843.57 N/A N/A N/A
Class PT2-I-46A (2) $ 915,811.67 Class PT2-I-IO-46 N/A N/A
Class PT2-I-46B (3) $ 915,811.67 N/A N/A N/A
Class PT2-I-47A (2) $ 865,955.07 Class PT2-I-IO-47 N/A N/A
Class PT2-I-47B (3) $ 865,955.07 N/A N/A N/A
Class PT2-I-48A (2) $ 818,904.59 Class PT2-I-IO-48 N/A N/A
Class PT2-I-48B (3) $ 818,904.59 N/A N/A N/A
Class PT2-I-49A (2) $ 774,498.54 Class PT2-I-IO-49 N/A N/A
Class PT2-I-49B (3) $ 774,498.54 N/A N/A N/A
Class PT2-I-50A (2) $ 732,584.52 Class PT2-I-IO-50 N/A N/A
Class PT2-I-50B (3) $ 732,584.52 N/A N/A N/A
Class PT2-I-51A (2) $ 693,019.49 Class PT2-I-IO-51 N/A N/A
Class PT2-I-51B (3) $ 693,019.49 N/A N/A N/A
Class PT2-I-52A (2) $ 655,667.94 Class PT2-I-IO-52 N/A N/A
Class PT2-I-52B (3) $ 655,667.94 N/A N/A N/A
Class PT2-I-53A (2) $ 620,403.33 Class PT2-I-IO-53 N/A N/A
Class PT2-I-53B (3) $ 620,403.33 N/A N/A N/A
Class PT2-I-54A (2) $ 587,105.62 Class PT2-I-IO-54 N/A N/A
Class PT2-I-54B (3) $ 587,105.62 N/A N/A N/A
Class PT2-I-55A (2) $ 555,662.23 Class PT2-I-IO-55 N/A N/A
Class PT2-I-55B (3) $ 555,662.23 N/A N/A N/A
Class PT2-I-56A (2) $ 525,967.33 Class PT2-I-IO-56 N/A N/A
Class PT2-I-56B (3) $ 525,967.33 N/A N/A N/A
Class PT2-I-57A (2) $ 498,009.38 Class PT2-I-IO-57 N/A N/A
Class PT2-I-57B (3) $ 498,009.38 N/A N/A N/A
Class PT2-I-58A (2) $ 472,237.48 Class PT2-I-IO-58 N/A N/A
Class PT2-I-58B (3) $ 472,237.48 N/A N/A N/A
Class PT2-I-59A (2) $ 447,113.31 Class PT2-I-IO-59 N/A N/A
Class PT2-I-59B (3) $ 447,113.31 N/A N/A N/A
Class PT2-I-60A (2) $ 423,391.93 Class PT2-I-IO-60 N/A N/A
Class PT2-I-60B (3) $ 423,391.93 N/A N/A N/A
Class PT2-I-61A (2) $ 6,949,291.40 Class PT2-I-IO-61 N/A N/A
Class PT2-I-61B (3) $ 6,949,291.40 N/A N/A N/A
Class PT2-I-IO-2 (4) (4) N/A Class PT1-I-2A June 2006
Class PT2-I-IO-3 (4) (4) N/A Class PT1-I-3A July 2006
Class PT2-I-IO-4 (4) (4) N/A Class PT1-I-4A August 2006
Class PT2-I-IO-5 (4) (4) N/A Class PT1-I-5A September 2006
Class PT2-I-IO-6 (4) (4) N/A Class PT1-I-6A October 2006
Class PT2-I-IO-7 (4) (4) N/A Class PT1-I-7A November 2006
Class PT2-I-IO-8 (4) (4) N/A Class PT1-I-8A December 2006
Class PT2-I-IO-9 (4) (4) N/A Class PT1-I-9A January 2007
Class PT2-I-IO-10 (4) (4) N/A Class PT1-I-10A February 2007
Class PT2-I-IO-11 (4) (4) N/A Class PT1-I-11A March 2007
Class PT2-I-IO-12 (4) (4) N/A Class PT1-I-12A April 2007
Class PT2-I-IO-13 (4) (4) N/A Class PT1-I-13A May 2007
Class PT2-I-IO-14 (4) (4) N/A Class PT1-I-14A June 2007
Class PT2-I-IO-15 (4) (4) N/A Class PT1-I-15A July 2007
Class PT2-I-IO-16 (4) (4) N/A Class PT1-I-16A August 2007
Class PT2-I-IO-17 (4) (4) N/A Class PT1-I-17A September 2007
Class PT2-I-IO-18 (4) (4) N/A Class PT1-I-18A October 2007
Class PT2-I-IO-19 (4) (4) N/A Class PT1-I-19A November 2007
Class PT2-I-IO-20 (4) (4) N/A Class PT1-I-20A December 2007
Class PT2-I-IO-21 (4) (4) N/A Class PT1-I-21A January 2008
Class PT2-I-IO-22 (4) (4) N/A Class PT1-I-22A February 2008
Class PT2-I-IO-23 (4) (4) N/A Class PT1-I-23A March 2008
Class PT2-I-IO-24 (4) (4) N/A Class PT1-I-24A April 2008
Class PT2-I-IO-25 (4) (4) N/A Class PT1-I-25A May 2008
Class PT2-I-IO-26 (4) (4) N/A Class PT1-I-26A June 2008
Class PT2-I-IO-27 (4) (4) N/A Class PT1-I-27A July 2008
Class PT2-I-IO-28 (4) (4) N/A Class PT1-I-28A August 2008
Class PT2-I-IO-29 (4) (4) N/A Class PT1-I-29A September 2008
Class PT2-I-IO-30 (4) (4) N/A Class PT1-I-30A October 2008
Class PT2-I-IO-31 (4) (4) N/A Class PT1-I-31A November 2008
Class PT2-I-IO-32 (4) (4) N/A Class PT1-I-32A December 2008
Class PT2-I-IO-33 (4) (4) N/A Class PT1-I-33A January 2009
Class PT2-I-IO-34 (4) (4) N/A Class PT1-I-34A February 2009
Class PT2-I-IO-35 (4) (4) N/A Class PT1-I-35A March 2009
Class PT2-I-IO-36 (4) (4) N/A Class PT1-I-36A April 2009
Class PT2-I-IO-37 (4) (4) N/A Class PT1-I-37A May 2009
Class PT2-I-IO-38 (4) (4) N/A Class PT1-I-38A June 2009
Class PT2-I-IO-39 (4) (4) N/A Class PT1-I-39A July 2009
Class PT2-I-IO-40 (4) (4) N/A Class PT1-I-40A August 2009
Class PT2-I-IO-41 (4) (4) N/A Class PT1-I-41A September 2009
Class PT2-I-IO-42 (4) (4) N/A Class PT1-I-42A October 2009
Class PT2-I-IO-43 (4) (4) N/A Class PT1-I-43A November 2009
Class PT2-I-IO-44 (4) (4) N/A Class PT1-I-44A December 2009
Class PT2-I-IO-45 (4) (4) N/A Class PT1-I-45A January 2010
Class PT2-I-IO-46 (4) (4) N/A Class PT1-I-46A February 2010
Class PT2-I-IO-47 (4) (4) N/A Class PT1-I-47A March 2010
Class PT2-I-IO-48 (4) (4) N/A Class PT1-I-48A April 2010
Class PT2-I-IO-49 (4) (4) N/A Class PT1-I-49A May 2010
Class PT2-I-IO-50 (4) (4) N/A Class PT1-I-50A June 2010
Class PT2-I-IO-51 (4) (4) N/A Class PT1-I-51A July 2010
Class PT2-I-IO-52 (4) (4) N/A Class PT1-I-52A August 2010
Class PT2-I-IO-53 (4) (4) N/A Class PT1-I-53A September 2010
Class PT2-I-IO-54 (4) (4) N/A Class PT1-I-54A October 2010
Class PT2-I-IO-55 (4) (4) N/A Class PT1-I-55A November 2010
Class PT2-I-IO-56 (4) (4) N/A Class PT1-I-56A December 2010
Class PT2-I-IO-57 (4) (4) N/A Class PT1-I-57A January 2011
Class PT2-I-IO-58 (4) (4) N/A Class PT1-I-58A February 2011
Class PT2-I-IO-59 (4) (4) N/A Class PT1-I-59A March 2011
Class PT2-I-IO-60 (4) (4) N/A Class PT1-I-60A April 2011
Class PT2-I-IO-61 (4) (4) N/A Class PT1-I-61A May 2011
Class PT2-II-1 (5) $ 17,193,585.61 N/A N/A N/A
Class PT2-II-2A (6) $ 11,006,807.65 Class PT2-II-IO-2 N/A N/A
Class PT2-II-2B (7) $ 11,006,807.65 N/A N/A N/A
Class PT2-II-3A (6) $ 12,825,840.26 Class PT2-II-IO-3 N/A N/A
Class PT2-II-3B (7) $ 12,825,840.26 N/A N/A N/A
Class PT2-II-4A (6) $ 14,603,702.52 Class PT2-II-IO-4 N/A N/A
Class PT2-II-4B (7) $ 14,603,702.52 N/A N/A N/A
Class PT2-II-5A (6) $ 16,318,264.67 Class PT2-II-IO-5 N/A N/A
Class PT2-II-5B (7) $ 16,318,264.67 N/A N/A N/A
Class PT2-II-6A (6) $ 17,958,013.70 Class PT2-II-IO-6 N/A N/A
Class PT2-II-6B (7) $ 17,958,013.70 N/A N/A N/A
Class PT2-II-7A (6) $ 19,501,564.18 Class PT2-II-IO-7 N/A N/A
Class PT2-II-7B (7) $ 19,501,564.18 N/A N/A N/A
Class PT2-II-8A (6) $ 20,933,898.24 Class PT2-II-IO-8 N/A N/A
Class PT2-II-8B (7) $ 20,933,898.24 N/A N/A N/A
Class PT2-II-9A (6) $ 22,082,324.93 Class PT2-II-IO-9 N/A N/A
Class PT2-II-9B (7) $ 22,082,324.93 N/A N/A N/A
Class PT2-II-10A (6) $ 22,119,534.49 Class PT2-II-IO-10 N/A N/A
Class PT2-II-10B (7) $ 22,119,534.49 N/A N/A N/A
Class PT2-II-11A (6) $ 21,069,564.34 Class PT2-II-IO-11 N/A N/A
Class PT2-II-11B (7) $ 21,069,564.34 N/A N/A N/A
Class PT2-II-12A (6) $ 20,069,719.20 Class PT2-II-IO-12 N/A N/A
Class PT2-II-12B (7) $ 20,069,719.20 N/A N/A N/A
Class PT2-II-13A (6) $ 19,117,595.95 Class PT2-II-IO-13 N/A N/A
Class PT2-II-13B (7) $ 19,117,595.95 N/A N/A N/A
Class PT2-II-14A (6) $ 18,210,906.40 Class PT2-II-IO-14 N/A N/A
Class PT2-II-14B (7) $ 18,210,906.40 N/A N/A N/A
Class PT2-II-15A (6) $ 17,347,352.29 Class PT2-II-IO-15 N/A N/A
Class PT2-II-15B (7) $ 17,347,352.29 N/A N/A N/A
Class PT2-II-16A (6) $ 16,525,111.41 Class PT2-II-IO-16 N/A N/A
Class PT2-II-16B (7) $ 16,525,111.41 N/A N/A N/A
Class PT2-II-17A (6) $ 15,742,078.39 Class PT2-II-IO-17 N/A N/A
Class PT2-II-17B (7) $ 15,742,078.39 N/A N/A N/A
Class PT2-II-18A (6) $ 14,996,374.70 Class PT2-II-IO-18 N/A N/A
Class PT2-II-18B (7) $ 14,996,374.70 N/A N/A N/A
Class PT2-II-19A (6) $ 14,338,338.36 Class PT2-II-IO-19 N/A N/A
Class PT2-II-19B (7) $ 14,338,338.36 N/A N/A N/A
Class PT2-II-20A (6) $ 13,696,069.42 Class PT2-II-IO-20 N/A N/A
Class PT2-II-20B (7) $ 13,696,069.42 N/A N/A N/A
Class PT2-II-21A (6) $ 14,378,930.03 Class PT2-II-IO-21 N/A N/A
Class PT2-II-21B (7) $ 14,378,930.03 N/A N/A N/A
Class PT2-II-22A (6) $ 24,696,497.13 Class PT2-II-IO-22 N/A N/A
Class PT2-II-22B (7) $ 24,696,497.13 N/A N/A N/A
Class PT2-II-23A (6) $ 35,321,485.21 Class PT2-II-IO-23 N/A N/A
Class PT2-II-23B (7) $ 35,321,485.21 N/A N/A N/A
Class PT2-II-24A (6) $ 28,686,953.64 Class PT2-II-IO-24 N/A N/A
Class PT2-II-24B (7) $ 28,686,953.64 N/A N/A N/A
Class PT2-II-25A (6) $ 18,178,926.90 Class PT2-II-IO-25 N/A N/A
Class PT2-II-25B (7) $ 18,178,926.90 N/A N/A N/A
Class PT2-II-26A (6) $ 4,556,591.96 Class PT2-II-IO-26 N/A N/A
Class PT2-II-26B (7) $ 4,556,591.96 N/A N/A N/A
Class PT2-II-27A (6) $ 2,336,188.09 Class PT2-II-IO-27 N/A N/A
Class PT2-II-27B (7) $ 2,336,188.09 N/A N/A N/A
Class PT2-II-28A (6) $ 7,077,181.00 Class PT2-II-IO-28 N/A N/A
Class PT2-II-28B (7) $ 7,077,181.00 N/A N/A N/A
Class PT2-II-29A (6) $ 6,676,561.15 Class PT2-II-IO-29 N/A N/A
Class PT2-II-29B (7) $ 6,676,561.15 N/A N/A N/A
Class PT2-II-30A (6) $ 6,302,226.24 Class PT2-II-IO-30 N/A N/A
Class PT2-II-30B (7) $ 6,302,226.24 N/A N/A N/A
Class PT2-II-31A (6) $ 5,949,411.11 Class PT2-II-IO-31 N/A N/A
Class PT2-II-31B (7) $ 5,949,411.11 N/A N/A N/A
Class PT2-II-32A (6) $ 5,616,857.31 Class PT2-II-IO-32 N/A N/A
Class PT2-II-32B (7) $ 5,616,857.31 N/A N/A N/A
Class PT2-II-33A (6) $ 5,303,459.34 Class PT2-II-IO-33 N/A N/A
Class PT2-II-33B (7) $ 5,303,459.34 N/A N/A N/A
Class PT2-II-34A (6) $ 5,006,658.53 Class PT2-II-IO-34 N/A N/A
Class PT2-II-34B (7) $ 5,006,658.53 N/A N/A N/A
Class PT2-II-35A (6) $ 4,728,201.33 Class PT2-II-IO-35 N/A N/A
Class PT2-II-35B (7) $ 4,728,201.33 N/A N/A N/A
Class PT2-II-36A (6) $ 4,465,660.76 Class PT2-II-IO-36 N/A N/A
Class PT2-II-36B (7) $ 4,465,660.76 N/A N/A N/A
Class PT2-II-37A (6) $ 4,218,109.30 Class PT2-II-IO-37 N/A N/A
Class PT2-II-37B (7) $ 4,218,109.30 N/A N/A N/A
Class PT2-II-38A (6) $ 3,984,675.02 Class PT2-II-IO-38 N/A N/A
Class PT2-II-38B (7) $ 3,984,675.02 N/A N/A N/A
Class PT2-II-39A (6) $ 3,764,527.05 Class PT2-II-IO-39 N/A N/A
Class PT2-II-39B (7) $ 3,764,527.05 N/A N/A N/A
Class PT2-II-40A (6) $ 3,556,782.64 Class PT2-II-IO-40 N/A N/A
Class PT2-II-40B (7) $ 3,556,782.64 N/A N/A N/A
Class PT2-II-41A (6) $ 3,360,979.52 Class PT2-II-IO-41 N/A N/A
Class PT2-II-41B (7) $ 3,360,979.52 N/A N/A N/A
Class PT2-II-42A (6) $ 3,176,287.55 Class PT2-II-IO-42 N/A N/A
Class PT2-II-42B (7) $ 3,176,287.55 N/A N/A N/A
Class PT2-II-43A (6) $ 3,002,061.29 Class PT2-II-IO-43 N/A N/A
Class PT2-II-43B (7) $ 3,002,061.29 N/A N/A N/A
Class PT2-II-44A (6) $ 2,837,695.94 Class PT2-II-IO-44 N/A N/A
Class PT2-II-44B (7) $ 2,837,695.94 N/A N/A N/A
Class PT2-II-45A (6) $ 2,710,192.43 Class PT2-II-IO-45 N/A N/A
Class PT2-II-45B (7) $ 2,710,192.43 N/A N/A N/A
Class PT2-II-46A (6) $ 2,692,458.83 Class PT2-II-IO-46 N/A N/A
Class PT2-II-46B (7) $ 2,692,458.83 N/A N/A N/A
Class PT2-II-47A (6) $ 2,545,881.93 Class PT2-II-IO-47 N/A N/A
Class PT2-II-47B (7) $ 2,545,881.93 N/A N/A N/A
Class PT2-II-48A (6) $ 2,407,554.91 Class PT2-II-IO-48 N/A N/A
Class PT2-II-48B (7) $ 2,407,554.91 N/A N/A N/A
Class PT2-II-49A (6) $ 2,277,002.46 Class PT2-II-IO-49 N/A N/A
Class PT2-II-49B (7) $ 2,277,002.46 N/A N/A N/A
Class PT2-II-50A (6) $ 2,153,776.48 Class PT2-II-IO-50 N/A N/A
Class PT2-II-50B (7) $ 2,153,776.48 N/A N/A N/A
Class PT2-II-51A (6) $ 2,037,456.51 Class PT2-II-IO-51 N/A N/A
Class PT2-II-51B (7) $ 2,037,456.51 N/A N/A N/A
Class PT2-II-52A (6) $ 1,927,644.06 Class PT2-II-IO-52 N/A N/A
Class PT2-II-52B (7) $ 1,927,644.06 N/A N/A N/A
Class PT2-II-53A (6) $ 1,823,967.17 Class PT2-II-IO-53 N/A N/A
Class PT2-II-53B (7) $ 1,823,967.17 N/A N/A N/A
Class PT2-II-54A (6) $ 1,726,072.88 Class PT2-II-IO-54 N/A N/A
Class PT2-II-54B (7) $ 1,726,072.88 N/A N/A N/A
Class PT2-II-55A (6) $ 1,633,630.27 Class PT2-II-IO-55 N/A N/A
Class PT2-II-55B (7) $ 1,633,630.27 N/A N/A N/A
Class PT2-II-56A (6) $ 1,546,328.17 Class PT2-II-IO-56 N/A N/A
Class PT2-II-56B (7) $ 1,546,328.17 N/A N/A N/A
Class PT2-II-57A (6) $ 1,464,132.62 Class PT2-II-IO-57 N/A N/A
Class PT2-II-57B (7) $ 1,464,132.62 N/A N/A N/A
Class PT2-II-58A (6) $ 1,388,364.02 Class PT2-II-IO-58 N/A N/A
Class PT2-II-58B (7) $ 1,388,364.02 N/A N/A N/A
Class PT2-II-59A (6) $ 1,314,499.69 Class PT2-II-IO-59 N/A N/A
Class PT2-II-59B (7) $ 1,314,499.69 N/A N/A N/A
Class PT2-II-60A (6) $ 1,244,759.57 Class PT2-II-IO-60 N/A N/A
Class PT2-II-60B (7) $ 1,244,759.57 N/A N/A N/A
Class PT2-II-61A (6) $ 20,430,708.10 Class PT2-II-IO-61 N/A N/A
Class PT2-II-61B (7) $ 20,430,708.10 N/A N/A N/A
Class PT2-II-IO-2 (4) (4) N/A Class PT1-II-2A June 2006
Class PT2-II-IO-3 (4) (4) N/A Class PT1-II-3A July 2006
Class PT2-II-IO-4 (4) (4) N/A Class PT1-II-4A August 2006
Class PT2-II-IO-5 (4) (4) N/A Class PT1-II-5A September 2006
Class PT2-II-IO-6 (4) (4) N/A Class PT1-II-6A October 2006
Class PT2-II-IO-7 (4) (4) N/A Class PT1-II-7A November 2006
Class PT2-II-IO-8 (4) (4) N/A Class PT1-II-8A December 2006
Class PT2-II-IO-9 (4) (4) N/A Class PT1-II-9A January 2007
Class PT2-II-IO-10 (4) (4) N/A Class PT1-II-10A February 2007
Class PT2-II-IO-11 (4) (4) N/A Class PT1-II-11A March 2007
Class PT2-II-IO-12 (4) (4) N/A Class PT1-II-12A April 2007
Class PT2-II-IO-13 (4) (4) N/A Class PT1-II-13A May 2007
Class PT2-II-IO-14 (4) (4) N/A Class PT1-II-14A June 2007
Class PT2-II-IO-15 (4) (4) N/A Class PT1-II-15A July 2007
Class PT2-II-IO-16 (4) (4) N/A Class PT1-II-16A August 2007
Class PT2-II-IO-17 (4) (4) N/A Class PT1-II-17A September 2007
Class PT2-II-IO-18 (4) (4) N/A Class PT1-II-18A October 2007
Class PT2-II-IO-19 (4) (4) N/A Class PT1-II-19A November 2007
Class PT2-II-IO-20 (4) (4) N/A Class PT1-II-20A December 2007
Class PT2-II-IO-21 (4) (4) N/A Class PT1-II-21A January 2008
Class PT2-II-IO-22 (4) (4) N/A Class PT1-II-22A February 2008
Class PT2-II-IO-23 (4) (4) N/A Class PT1-II-23A March 2008
Class PT2-II-IO-24 (4) (4) N/A Class PT1-II-24A April 2008
Class PT2-II-IO-25 (4) (4) N/A Class PT1-II-25A May 2008
Class PT2-II-IO-26 (4) (4) N/A Class PT1-II-26A June 2008
Class PT2-II-IO-27 (4) (4) N/A Class PT1-II-27A July 2008
Class PT2-II-IO-28 (4) (4) N/A Class PT1-II-28A August 2008
Class PT2-II-IO-29 (4) (4) N/A Class PT1-II-29A September 2008
Class PT2-II-IO-30 (4) (4) N/A Class PT1-II-30A October 2008
Class PT2-II-IO-31 (4) (4) N/A Class PT1-II-31A November 2008
Class PT2-II-IO-32 (4) (4) N/A Class PT1-II-32A December 2008
Class PT2-II-IO-33 (4) (4) N/A Class PT1-II-33A January 2009
Class PT2-II-IO-34 (4) (4) N/A Class PT1-II-34A February 2009
Class PT2-II-IO-35 (4) (4) N/A Class PT1-II-35A March 2009
Class PT2-II-IO-36 (4) (4) N/A Class PT1-II-36A April 2009
Class PT2-II-IO-37 (4) (4) N/A Class PT1-II-37A May 2009
Class PT2-II-IO-38 (4) (4) N/A Class PT1-II-38A June 2009
Class PT2-II-IO-39 (4) (4) N/A Class PT1-II-39A July 2009
Class PT2-II-IO-40 (4) (4) N/A Class PT1-II-40A August 2009
Class PT2-II-IO-41 (4) (4) N/A Class PT1-II-41A September 2009
Class PT2-II-IO-42 (4) (4) N/A Class PT1-II-42A October 2009
Class PT2-II-IO-43 (4) (4) N/A Class PT1-II-43A November 2009
Class PT2-II-IO-44 (4) (4) N/A Class PT1-II-44A December 2009
Class PT2-II-IO-45 (4) (4) N/A Class PT1-II-45A January 2010
Class PT2-II-IO-46 (4) (4) N/A Class PT1-II-46A February 2010
Class PT2-II-IO-47 (4) (4) N/A Class PT1-II-47A March 2010
Class PT2-II-IO-48 (4) (4) N/A Class PT1-II-48A April 2010
Class PT2-II-IO-49 (4) (4) N/A Class PT1-II-49A May 2010
Class PT2-II-IO-50 (4) (4) N/A Class PT1-II-50A June 2010
Class PT2-II-IO-51 (4) (4) N/A Class PT1-II-51A July 2010
Class PT2-II-IO-52 (4) (4) N/A Class PT1-II-52A August 2010
Class PT2-II-IO-53 (4) (4) N/A Class PT1-II-53A September 2010
Class PT2-II-IO-54 (4) (4) N/A Class PT1-II-54A October 2010
Class PT2-II-IO-55 (4) (4) N/A Class PT1-II-55A November 2010
Class PT2-II-IO-56 (4) (4) N/A Class PT1-II-56A December 2010
Class PT2-II-IO-57 (4) (4) N/A Class PT1-II-57A January 2011
Class PT2-II-IO-58 (4) (4) N/A Class PT1-II-58A February 2011
Class PT2-II-IO-59 (4) (4) N/A Class PT1-II-59A March 2011
Class PT2-II-IO-60 (4) (4) N/A Class PT1-II-60A April 2011
Class PT2-II-IO-61 (4) (4) N/A Class PT1-II-61A May 2011
Class PT2-R (8) $50.00 N/A N/A N/A
--------------
(1) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the Pooling-Tier
REMIC-1 Loan Group I WAC Rate.
(2) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the weighted
average of the Pooling-Tier REMIC-1 Interest Rates on the Pooling-Tier
REMIC-1 Regular Interests relating to Loan Group I and having an "A" in
their class designation, provided that, on each Distribution Date on which
interest is distributable on the Corresponding Pooling-Tier REMIC-2 IO
Interest, this Pooling-Tier REMIC-2 Regular Interest shall bear interest
at a per annum rate equal to Swap LIBOR subject to a maximum rate equal to
the weighted average of the Pooling-Tier REMIC-1 Interest Rates on the
Pooling-Tier REMIC-1 Regular Interests relating to Loan Group I and having
an "A" in their class designation.
(3) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the weighted
average of the Pooling-Tier REMIC-1 Interest Rates on the Pooling-Tier
REMIC-1 Regular Interests relating to Loan Group I and having a "B" in
their class designation.
(4) Each Pooling-Tier REMIC-2 IO is an interest-only interest and does not
have a principal balance but has a notional balance ("Pooling-Tier REMIC-2
IO Notional Balance") equal to the Pooling-Tier REMIC-2 Principal Amount
of the Corresponding Pooling-Tier REMIC-1 Regular Interest. From the
Closing Date through and including the Corresponding Actual Crossover
Distribution Date, each Pooling-Tier REMIC-2 IO Interest shall be entitled
to receive interest that accrues on the Corresponding Pooling-Tier REMIC-1
Regular Interest at a rate equal to the excess, if any, of (i) the
Pooling-Tier REMIC-1 Interest Rate for the Corresponding Pooling-Tier
REMIC-1 Regular Interest over (ii) Swap LIBOR. After the Corresponding
Actual Crossover Distribution Date, the Pooling-Tier REMIC-2 IO Interest
shall not accrue interest.
(5) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the Pooling-Tier
REMIC-1 Loan Group II WAC Rate.
(6) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the weighted
average of the Pooling-Tier REMIC-1 Interest Rates on the Pooling-Tier
REMIC-1 Regular Interests relating to Loan Group II and having an "A" in
their class designation, provided that, on each Distribution Date on which
interest is distributable on the Corresponding Pooling-Tier REMIC-2 IO
Interest, this Pooling-Tier REMIC-2 Regular Interest shall bear interest
at a per annum rate equal to Swap LIBOR subject to a maximum rate equal to
the weighted average of the Pooling-Tier REMIC-1 Interest Rates on the
Pooling-Tier REMIC-1 Regular Interests relating to Loan Group II and
having an "A" in their class designation.
(7) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the weighted
average of the Pooling-Tier REMIC-1 Interest Rates on the Pooling-Tier
REMIC-1 Regular Interests relating to Loan Group II and having a "B" in
their class designation.
(8) The Class PT2-R Interest shall not bear interest.
On each Distribution Date, the interest distributable in respect of
the Mortgage Loans for such Distribution Date shall be distributed to the
Pooling-Tier REMIC-2 Regular Interests at the Pooling-Tier REMIC-2 Interest
Rates shown above.
On each Distribution Date, Realized Losses, Subsequent Recoveries
and payments of principal in respect of the Group I Mortgage Loans shall be
allocated to the Class R Certificates in respect of the Class PT2-R Interest
pursuant to Section 4.02(a)(iii) until its Class Certificate Balance is reduced
to zero, then to the outstanding Pooling-Tier REMIC-2 Regular Interests (other
than the Pooling-Tier REMIC-2 IO Interests) relating to Loan Group I with the
lowest numerical denomination (other than the Class PT2-I-1 Interest) until the
Pooling-Tier REMIC-2 Principal Amount of such interest is reduced to zero,
provided that, for Pooling-Tier REMIC-2 Regular Interests relating to Loan Group
I with the same numerical denomination, such Realized Losses and payments of
principal shall be allocated pro rata between such Pooling-Tier REMIC-2 Regular
Interests, and then to the Class PT2-I-1 Interest until the Pooling-Tier REMIC-2
Principal Amount of such interest is reduced to zero.
On each Distribution Date, Realized Losses, Subsequent Recoveries
and payments of principal in respect of the Group II Mortgage Loans shall be
allocated to the outstanding Pooling-Tier REMIC-2 Regular Interests (other than
the Pooling-Tier REMIC-2 IO Interests) relating to Loan Group II with the lowest
numerical denomination (other than the Class PT2-II-1 Interest) until the
Pooling-Tier REMIC-2 Principal Amount of such interest is reduced to zero,
provided that, for Pooling-Tier REMIC-2 Regular Interests relating to Loan Group
II with the same numerical denomination, such Realized Losses and payments of
principal shall be allocated pro rata between such Pooling-Tier REMIC-2 Regular
Interests, and then to the Class PT2-II-1 Interest until the Pooling-Tier
REMIC-2 Principal Amount of such interest is reduced to zero.
Lower-Tier REMIC
The Lower-Tier REMIC shall issue the following interests, and each
such interest, other than the Class LT-R Interest, is hereby designated as a
regular interest in the Lower-Tier REMIC. The Class LT-R Interest is hereby
designated as the sole class of residual interest in the Lower-Tier REMIC and
shall be represented by the Class R Certificates.
Corresponding
Lower-Tier Lower-Tier Initial Lower-Tier Upper-Tier REMIC
Regular Interest Interest Rate Principal Amount Regular Interest
---------------------------- ------------------ -------------------------------------------- --------------------
Class LT-A-1 (1) 1/2 initial Class Certificate Balance of A-1
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-A-2A (1) 1/2 initial Class Certificate Balance of A-2A
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-A-2B (1) 1/2 initial Class Certificate Balance of A-2B
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-A-2C (1) 1/2 initial Class Certificate Balance of A-2C
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-A-2D (1) 1/2 initial Class Certificate Balance of A-2D
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-M-1 (1) 1/2 initial Class Certificate Balance of M-1
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-M-2 (1) 1/2 initial Class Certificate Balance of M-2
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-M-3 (1) 1/2 initial Class Certificate Balance of M-3
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-M-4 (1) 1/2 initial Class Certificate Balance of M-4
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-M-5 (1) 1/2 initial Class Certificate Balance of M-5
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-M-6 (1) 1/2 initial Class Certificate Balance of M-6
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-M-7 (1) 1/2 initial Class Certificate Balance of M-7
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-M-8 (1) 1/2 initial Class Certificate Balance of M-8
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-M-9 (1) 1/2 initial Class Certificate Balance of M-9
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-B-1 (1) 1/2 initial Class Certificate Balance of B-1
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-B-2 (1) 1/2 initial Class Certificate Balance of B-2
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-Accrual (1) 1/2 Pool Principal Balance plus 1/2 N/A
Overcollateralized Amount, less the
Initial Lower-Tier Principal Amounts of
the Class LT-Group I, Class LT-Group II
and Class LT-3 Interests, less $50
Class LT-Group I (2) 0.001% aggregate Stated Principal Balance N/A
of Group I Mortgage Loans(4)
Class LT-Group II (3) 0.001% aggregate Stated Principal Balance N/A
of Group II Mortgage Loans(4)
Class LT-IO (5) (5) N/A
Class LT-3 (6) $50.00
Class LT-R (7) (7) N/A
--------------
(1) The interest rate with respect to any Distribution Date for these
interests is a per annum variable rate equal to the weighted average of
the Pooling-Tier REMIC-2 Interest Rates of the Pooling-Tier REMIC-2
Regular Interests (other than the Pooling-Tier REMIC-2 IO Interests).
(2) The interest rate with respect to any Distribution Date for the Class
LT-Group I Interest is a per annum variable rate (expressed as a
percentage rounded to eight decimal places) equal to the weighted average
of the Pooling-Tier REMIC-2 Interest Rates of the Pooling-Tier REMIC-2
Regular Interests (other than the Pooling Tier REMIC-2 IO Interests)
relating to Loan Group I.
(3) The interest rate with respect to any Distribution Date for the Class
LT-Group II Interest is a per annum variable rate (expressed as a
percentage rounded to eight decimal places) equal to the weighted average
of the Pooling-Tier REMIC-2 Interest Rates of the Pooling-Tier REMIC-2
Regular Interests (other than the Pooling Tier REMIC-2 IO Interests)
relating to Loan Group II.
(4) For all Distribution Dates, the Lower-Tier Principal Amount of these
Lower-Tier Regular Interests shall be rounded to eight decimal places.
(5) This Lower-Tier Regular Interest is an interest-only interest and does not
have a Lower-Tier Principal Amount. On each Distribution Date, this
Lower-Tier Regular Interest shall be entitled to receive all interest
distributable on the Pooling-Tier REMIC-2 IO Interests.
(6) This Lower-Tier Regular Interest shall not be entitled to interest and
shall have a Lower-Tier Principal Amount at all times equal to the Class
Certificate Balance of the Class RX Certificates.
(7) The Class LT-R Interest does not have a principal amount or an interest
rate.
Each Lower-Tier Regular Interest is hereby designated as a regular
interest in the Lower-Tier REMIC. The Class LT-A-1, Class LT-A-2A, Class
LT-A-2B, Class LT-A-2C, Class LT-A-2D, Class LT-M-1, Class LT-M-2, Class LT-M-3,
Class LT-M-4, Class LT-M-5, Class LT-M-6, Class LT-M-7, Class LT-M-8, Class
LT-M-9, Class LT-B-1 and Class LT-B-2 Interests are hereby designated the
LT-Accretion Directed Classes (the "LT-Accretion Directed Classes").
On each Distribution Date, 50% of the increase in the
Overcollateralized Amount shall be payable as a reduction of the Lower-Tier
Principal Amount of the LT-Accretion Directed Classes (each such Class will be
reduced by an amount equal to 50% of any increase in the Overcollateralized
Amount that is attributable to a reduction in the Class Certificate Balance of
its Corresponding Class) and shall be accrued and added to the Lower-Tier
Principal Amount of the Class LT-Accrual Interest. On each Distribution Date,
the increase in the Lower-Tier Principal Amount of the Class LT-Accrual Interest
shall not exceed interest accruals for such Distribution Date for the Class
LT-Accrual Interest. In the event that: (i) 50% of the increase in the
Overcollateralized Amount exceeds (ii) interest accruals on the Class LT-Accrual
Interest for such Distribution Date, the excess for such Distribution Date
(accumulated with all such excesses for all prior Distribution Dates) will be
added to any increase in the Overcollateralized Amount for purposes of
determining the amount of interest accrual on the Class LT-Accrual Interest
payable as principal on the LT-Accretion Directed Classes on the next
Distribution Date pursuant to the first sentence of this paragraph. All payments
of scheduled principal and prepayments of principal generated by the Mortgage
Loans and all Subsequent Recoveries allocable to principal shall be allocated
(i) 50% to the Class LT-Accrual Interest, the Class LT-Group I Interest and
Class LT-Group II Interest (and further allocated among these Lower-Tier Regular
Interests in the manner described below) and (ii) 50% to the LT-Accretion
Directed Classes (such principal payments and Subsequent Recoveries shall be
allocated among such LT-Accretion Directed Classes in an amount equal to 50% of
the principal amounts and Subsequent Recoveries allocated to their respective
Corresponding Classes), until paid in full. Notwithstanding the above, principal
payments allocated to the Class X Interest that result in the reduction in the
Overcollateralized Amount shall be allocated to the Class LT-Accrual Interest
(until paid in full). Realized Losses shall be applied so that after all
distributions have been made on each Distribution Date (i) the Lower-Tier
Principal Amount of each of the LT-Accretion Directed Classes is equal to 50% of
the Class Certificate Balance of their Corresponding Class, and (ii) the Class
LT-Accrual Interest, the Class LT-Group I and the Class LT-Group II Interest
(and further allocated among these Lower-Tier Regular Interests in the manner
described below) is equal to 50% of the aggregate Stated Principal Balance of
the Mortgage Loans plus 50% of the Overcollateralized Amount. Any increase in
the Class Certificate Balance of a Class of LIBOR Certificates as a result of a
Subsequent Recovery shall increase the Lower-Tier Principal Amount of the
Corresponding Lower-Tier Regular Interest by 50% of such increase, and the
remaining 50% of such increase shall increase the Lower-Tier Principal Amount of
the Class LT-Accrual Interest. As among the Class LT-Accrual Interest, the Class
LT-Group I Interest and the Class LT-Group II Interest, all payments of
scheduled principal and prepayments of principal generated by the Mortgage
Loans, all Subsequent Recoveries and all Realized Losses, allocable to such
Lower-Tier Regular Interests shall be allocated (i) to the Class LT-Group I
Interest and the Class LT-Group II Interest, each from the related Loan Group so
that their respective Lower-Tier Principal Amounts (computed to at least eight
decimal places) are equal to 0.001% of the aggregate Stated Principal Balance of
the Mortgage Loans in the related Loan Group and (ii) the remainder to the Class
LT-Accrual Interest.
Upper-Tier REMIC
The Upper-Tier REMIC shall issue the following interests, and each
such interest, other than the Class UT-R Interest, is hereby designated as a
regular interest in the Upper-Tier REMIC. The Class UT-R Interest is hereby
designated as the sole class of residual interests in the Upper-Tier REMIC and
shall be represented by the Class R Certificates.
Corresponding
Upper-Tier REMIC Upper-Tier Initial Principal Class of
Interest Interest Rate Upper-Tier Amount Certificates
-------------------- ------------------ --------------------- -----------------
Class A-1 (1) $ 304,472,000 Class A-1
Class A-2A (2) $ 517,353,000 Class A-2A
Class A-2B (2) $ 176,107,000 Class A-2B
Class A-2C (2) $ 151,980,000 Class A-2C
Class A-2D (2) $ 49,697,000 Class A-2D
Class M-1 (3) $ 63,053,000 Class M-1
Class M-2 (3) $ 59,063,000 Class M-2
Class M-3 (3) $ 35,916,000 Class M-3
Class M-4 (3) $ 31,926,000 Class M-4
Class M-5 (3) $ 29,531,000 Class M-5
Class M-6 (3) $ 27,137,000 Class M-6
Class M-7 (3) $ 25,540,000 Class M-7
Class M-8 (3) $ 22,348,000 Class M-8
Class M-9 (3) $ 19,156,000 Class M-9
Class B-1 (3) $ 19,155,000 Class B-1
Class B-2 (3) $ 17,559,000 Class B-2
Class UT-IO (4) (4) N/A
Class UT-X (5) (5) N/A
Class UT-3 (6) $50 N/A
Class UT-R (7) (7) Class R
--------------
(1) For any Distribution Date (and the related Interest Accrual Period), this
interest shall bear interest at the least of (i) the Pass-Through Rate
(determined without regard to the Loan Group I Cap or WAC Cap) for the
Corresponding Class of Certificates, (ii) the Lower-Tier Interest Rate for
the Class LT-Group I Interest (the "Upper-Tier REMIC Loan Group I Rate")
and (iii) the Upper-Tier REMIC WAC Rate.
(2) For any Distribution Date (and the related Interest Accrual Period), this
interest shall bear interest at the least of (i) the Pass-Through Rate
(determined without regard to the Loan Group II Cap or WAC Cap) for the
Corresponding Class of Certificates, (ii) the Lower-Tier Interest Rate for
the Class LT-Group II Interest (the "Upper-Tier REMIC Loan Group II Rate")
and (iii) the Upper-Tier REMIC WAC Rate.
(3) For any Distribution Date (and the related Interest Accrual Period), this
interest shall bear interest at the lesser of (i) the Pass-Through Rate
(determined without regard to the applicable WAC Cap) for the
Corresponding Class of Certificates and (ii) the Upper-Tier REMIC WAC
Rate.
(4) This interest is an interest-only interest and does not have a principal
balance. On each Distribution Date, the Class UT-IO Interest shall be
entitled to receive all interest distributable on the Class LT-IO
Interest.
(5) The Class UT-X Interest has an initial principal balance of $46,293,070.69
but will not accrue interest on such balance but will accrue interest on a
notional principal balance. As of any Distribution Date, the Class UT-X
Interest shall have a notional principal balance equal to the aggregate of
the Lower-Tier Principal Amounts of the Lower-Tier Regular Interests
(other than the Class LT-IO and Class LT-3 Interests) as of the first day
of the related Interest Accrual Period. With respect to any Interest
Accrual Period, the Class UT-X Interest shall bear interest at a rate
equal to the excess, if any, of the Upper-Tier REMIC WAC Rate over the
product of (i) 2 and (ii) the weighted average of the Lower-Tier Interest
Rates of the Lower-Tier REMIC Interests (other than the Class LT-IO and
Class LT-3 Interests), where the Lower-Tier Interest Rate on each of the
Class LT-Accrual Interest, Class LT-Group I Interest and Class LT-Group II
Interest is subject to a cap equal to zero and each LT-Accretion Directed
Class is subject to a cap equal to the Upper-Tier Interest Rate on its
Corresponding Class of Upper-Tier Regular Interest. With respect to any
Distribution Date, interest that so accrues on the notional principal
balance of the Class UT-X Interest shall be deferred in an amount equal to
any increase in the Overcollateralized Amount on such Distribution Date.
Such deferred interest shall not itself bear interest.
(6) This Upper-Tier Regular Interest shall not be entitled to interest and
shall have a principal balance equal to the Class Certificate Balance of
the Class RX Certificates.
(7) The Class UT-R Interest does not have an interest rate or a principal
balance.
On each Distribution Date, interest distributable in respect of the
Lower-Tier Interests for such Distribution Date shall be deemed to be
distributed on the interests in the Upper-Tier REMIC at the rates shown above,
provided that the Class UT-IO Interest shall be entitled to receive interest
before any other interest in the Upper-Tier REMIC.
On each Distribution Date, all Realized Losses, Subsequent
Recoveries and all payments of principal shall be allocated to the Upper-Tier
Interests until the outstanding principal balance of each such interest equals
the outstanding Class Certificate Balance of the Corresponding Class of
Certificates as of such Distribution Date.
Class X REMIC
The Class X REMIC shall issue the following classes of interests.
The Class X Interest and the Class IO Interest shall each represent a regular
interest in the Class X REMIC and the Class RX Certificates shall represent the
sole class of residual interest in the Class X REMIC.
Class X REMIC
Class X REMIC Designation Interest Rate Principal Amount
------------------------------ ----------------- -------------------
Class X Interest (1) (1)
Class IO Interest (2) (2)
Class RX Certificates (3) $50.00
--------------
(1) The Class X Interest has an initial principal balance equal to the initial
principal balance of the Class UT-X Interest and is entitled to 100% of
the interest and principal on the Class UT-X Interest on each Distribution
Date.
(2) This interest is an interest-only interest and does not have a principal
balance. On each Distribution Date the Class IO Interest shall be entitled
to receive 100% of the interest distributable on the Class UT-IO Interest.
(3) The Class RX Certificates do not have an interest rate.
Certificates
Class Class Certificate
Class Designation Pass-Through Rate Balance
-------------------- ------------------- ------------------
Class A-1(21) (1) $304,472,000
Class A-2A(21) (2) $517,353,000
Class A-2B(21) (3) $176,107,000
Class A-2C(21) (4) $151,980,000
Class A-2D(21) (5) $ 49,697,000
Class M-1(21) (6) $ 63,053,000
Class M-2(21) (7) $ 59,063,000
Class M-3(21) (8) $ 35,916,000
Class M-4(21) (9) $ 31,926,000
Class M-5(21) (10) $ 29,531,000
Class M-6(21) (11) $ 27,137,000
Class M-7(21) (12) $ 25,540,000
Class M-8(21) (13) $ 22,348,000
Class M-9(21) (14) $ 19,156,000
Class B-1(21) (15) $ 19,155,000
Class B-2(21) (16) $ 17,559,000
Class X (17) 0(17)
Class R (18) $ 50
Class RC (19) $ 100
Class RX (20) $ 50
---------------
(1) The Class A-1 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the least of (1) One-Month LIBOR plus
the applicable Pass-Through Margin, (2) the Loan Group I Cap and (3) the
WAC Cap.
(2) The Class A-2A Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the least of (1) One-Month
LIBOR plus the applicable Pass-Through Margin, (2) the Loan Group II Cap
and (3) the WAC Cap.
(3) The Class A-2B Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the least of (1) One-Month
LIBOR plus the applicable Pass-Through Margin, (2) the Loan Group II Cap
and (3) the WAC Cap.
(4) The Class A-2C Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the least of (1) One-Month
LIBOR plus the applicable Pass-Through Margin, (2) the Loan Group II Cap
and (3) the WAC Cap.
(5) The Class A-2D Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the least of (1) One-Month
LIBOR plus the applicable Pass-Through Margin, (2) the Loan Group II Cap
and (3) the WAC Cap.
(6) The Class M-1 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month LIBOR plus
the applicable Pass-Through Margin and (2) the WAC Cap.
(7) The Class M-2 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month LIBOR plus
the applicable Pass-Through Margin and (2) the WAC Cap.
(8) The Class M-3 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month LIBOR plus
the applicable Pass-Through Margin and (2) the WAC Cap.
(9) The Class M-4 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month LIBOR plus
the applicable Pass-Through Margin and (2) the WAC Cap.
(10) The Class M-5 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month LIBOR plus
the applicable Pass-Through Margin and (2) the WAC Cap.
(11) The Class M-6 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month LIBOR plus
the applicable Pass-Through Margin and (2) the WAC Cap.
(12) The Class M-7 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month LIBOR plus
the applicable Pass-Through Margin and (2) the WAC Cap.
(13) The Class M-8 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month LIBOR plus
the applicable Pass-Through Margin and (2) the WAC Cap.
(14) The Class M-9 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month LIBOR plus
the applicable Pass-Through Margin and (2) the WAC Cap.
(15) The Class B-1 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month LIBOR plus
the applicable Pass-Through Margin and (2) the WAC Cap.
(16) The Class B-2 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month LIBOR plus
the applicable Pass-Through Margin and (2) the WAC Cap.
(17) The Class X Certificates will represent beneficial ownership of (i) the
Class X Interest, (ii) the Class IO Interest, (iii) the right to receive
Class IO Shortfalls, (iv) amounts in the Supplemental Interest Trust,
including the Interest Rate Swap Agreement subject to the obligation to
pay Net Swap Payments and Swap Termination Payments to the Swap Provider
and Upper-Tier Carry Forward Amounts and, without duplication, Basis Risk
Carry Forward Amounts and (v) amounts in the Excess Reserve Fund Account,
subject to the obligation to make payments from the Excess Reserve Fund
Account in respect of Basis Risk Carry Forward Amounts. For federal income
tax purposes, the Securities Administrator will treat a Class X
Certificateholder's obligation to make payments of Basis Risk Carry
Forward Amounts and, without duplication, Upper-Tier Carry Forward Amounts
to the LIBOR Certificates from the Excess Reserve Fund Account and the
Supplemental Interest Trust as payments made pursuant to an interest rate
cap contract written by the Class X Certificateholders in favor of each
Class of LIBOR Certificates. Such rights of the Class X Certificateholders
and LIBOR Certificateholders shall be treated as held in a portion of the
Trust Fund that is treated as a grantor trust under subpart E, Part I of
subchapter J of the Code.
(18) The Class R Certificates do not have an interest rate. The Class R
Certificates represent ownership of the Class PT2-R Interest, the Class
LT-R Interest and the Class UT-R Interest.
(19) The Class RC Certificates do not have an interest rate. The Class RC
Certificates represent the residual interest in Pooling-Tier REMIC-1.
(20) The Class RX Certificates do not have an interest rate. The Class RX
Certificates represent the residual interest in the Class B-1 REMIC, Class
B-2 REMIC and Class X REMIC.
(21) Each of these Certificates will represent not only the ownership of a
regular interest in the Corresponding REMIC but also the right to receive
payments from the Excess Reserve Fund Account and the Supplemental
Interest Trust. Each of these Certificates will also be subject to the
obligation to pay Class IO Shortfalls as described in Section 8.13. For
federal income tax purposes, any amount distributed on the LIBOR
Certificates on any such Distribution Date in excess of the amount
distributable on the regular interest in the Corresponding REMIC on such
Distribution Date shall be treated as having been paid from the Excess
Reserve Fund Account or the Supplemental Interest Trust, as applicable,
and any amount distributable on such regular interest on such Distribution
Date in excess of the amount distributable on the LIBOR Certificates on
such Distribution Date shall be treated as having been paid to the
Supplemental Interest Trust, all pursuant to, and as further provided in,
Section 8.13. The Securities Administrator will treat a LIBOR
Certificateholder's right to receive payments from the Excess Reserve Fund
Account and the Supplemental Interest Trust as payments made pursuant to
an interest rate cap contract written by the Class X Certificateholders.
The minimum denomination for the LIBOR Certificates will be $25,000,
with integral multiples of $1 in excess thereof except that one Certificate in
each Class may be issued in a different amount. The minimum denomination for (a)
the Class R Certificates will be $25, representing a 50% Percentage Interest in
the related Class, (b) the Class RC Certificates will be $25, representing a 25%
Percentage Interest in the related Class, (c) the Class RX Certificates will be
$25, representing a 50% Percentage Interest in the related Class, (d) the Class
P Certificates will be a 1% Percentage Interest in such Class, and (e) the Class
X Certificates will be a 1% Percentage Interest in such Class.
It is expected that each Class of LIBOR Certificates and Residual
Certificates will receive its final distribution of principal and interest on or
prior to the Rated Final Distribution Date.
Set forth below are designations of Classes of Certificates to the
categories used herein:
Book-Entry Certificates...... All Classes of Certificates other than the
Physical Certificates.
Class A Certificates......... Class A-1, Class A-2A, Class A-2B, Class A-2C and
Class A-2D Certificates.
Class A-2 Certificates....... Class A-2A, Class A-2B, Class A-2C and Class A-2D
Certificates.
Class B Certificates......... Class B-1 and Class B-2 Certificates.
Class M Certificates......... Class M-1, Class M-2, Class M-3, Class M-4, Class
M-5, Class M-6, Class M-7, Class M-8 and Class M-9
Certificates.
ERISA-Restricted
Certificates............... Class R, Class P and Class X Certificates; and any
Certificate with a rating below the lowest
applicable permitted rating under the
Underwriter's Exemption.
LIBOR Certificates........... Class A, Class M and Class B Certificates.
Offered Certificates......... All Classes of Certificates other than the Private
Certificates, the Class P Certificates and the
Class X Certificates.
Physical Certificates........ Class P, Class X and Residual Certificates.
Private Certificates......... Class B-1 and Class B-2 Certificates.
Rating Agencies.............. Xxxxx'x and Standard & Poor's.
Regular Certificates......... All Classes of Certificates other than the Class P
and Residual Certificates.
Residual Certificates........ The Class R, Class RC and Class RX Certificates.
Subordinated Certificates.... Class M and Class B Certificates.
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
Aames: Aames Capital Corporation, a California corporation, and its
successors in interest.
Aames Agreements: Collectively, the Aames Purchase Agreement and the
Aames Assignment Agreement, copies of which are attached hereto as Exhibit X.
Xxxxx Assignment Agreement: The Assignment, Assumption and
Recognition Agreement, dated as of May 26, 2006, by and among Xxxxx, the Sponsor
and the Depositor.
Aames Mortgage Loan: Each Mortgage Loan purchased by the Sponsor
pursuant to a Aames Purchase Agreement and identified as a "Aames Mortgage Loan"
on the Mortgage Loan Schedule.
Aames Purchase Agreement: The Mortgage Loan Purchase and Warranties
Agreements, dated as of April 1, 2006, by and between Aames and the Sponsor,
solely insofar as the Aames Purchase Agreement relates to the Aames Mortgage
Loans.
Accepted Servicing Practices: With respect to any Mortgage Loan,
those mortgage servicing practices set forth in Section 3.01(a) of this
Agreement.
Account: Any of the Collection Account, the Distribution Account,
any Escrow Account, the Excess Reserve Fund Account or the Supplemental Interest
Trust. Each Account shall be an Eligible Account.
Acoustic: Acoustic Home Loans, LLC, a Delaware limited liability
company, and its successors in interest.
Acoustic Mortgage Loan: Each Mortgage Loan purchased by the Sponsor
pursuant to an Acoustic Purchase Agreement and identified as an "Acoustic
Mortgage Loan" on the Mortgage Loan Schedule.
Acoustic Purchase Agreement: The Flow Mortgage Loan Purchase and
Warranties Agreement, dated as of November 1, 2005, by and between Acoustic and
the Sponsor, solely insofar as the Acoustic Purchase Agreement relates to the
Acoustic Mortgage Loans.
Accrued Certificate Interest Distribution Amount: With respect to
any Distribution Date for each Class of LIBOR Certificates, the amount of
interest accrued during the related Interest Accrual Period at the applicable
Pass-Through Rate on the related Class Certificate Balance immediately prior to
such Distribution Date, as reduced by such Class's share of Net Prepayment
Interest Shortfalls and Relief Act Interest Shortfalls for such Distribution
Date allocated to such Class pursuant to Section 4.02.
Additional Form 10-D Disclosure: As defined in Section 8.12(b).
Additional Form 10-K Disclosure: As defined in Section 8.12(c).
Adjustable Rate Mortgage Loan: An adjustable rate Mortgage Loan.
Adjusted Net Mortgage Interest Rate: As to each Mortgage Loan and at
any time, the per annum rate equal to the Mortgage Interest Rate less the
Expense Fee Rate.
Adjustment Date: As to any Adjustable Rate Mortgage Loan, the first
Due Date on which the related Mortgage Interest Rate adjusts as set forth in the
related Mortgage Note and each Due Date thereafter on which the Mortgage
Interest Rate adjusts as set forth in the related Mortgage Note.
Advance: Any P&I Advance or Servicing Advance.
Advance Facility: A financing or other facility as described in
Section 12.07.
Advance Facility Notice: As defined in Section 12.07.
Advance Financing Person: The Person to whom any Servicer's rights
under this Agreement to be reimbursed for any P&I Advances or Servicing Advances
have been assigned pursuant to Section 12.07.
Advance Reimbursement Amounts: As defined in Section 12.07.
Affiliate: With respect to any Person, any other Person controlling,
controlled by or under common control with such first Person. For the purposes
of this definition, "control" means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Agreement: This Pooling and Servicing Agreement and all amendments
or supplements hereto.
Amount Held for Future Distribution: As to the Certificates on any
Distribution Date, the aggregate amount held in the Collection Account at the
close of business on the related Determination Date on account of (i) Principal
Prepayments, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds
on the Mortgage Loans received after the end of the related Prepayment Period
and (ii) all Scheduled Payments on the Mortgage Loans due after the end of the
related Due Period.
Analytics Company: Intex Solutions, Inc., or any other bond
analytics service provider identified to the Trustee by the Depositor.
Applied Realized Loss Amount: With respect to any Distribution Date,
the amount, if any, by which the aggregate Class Certificate Balance of the
LIBOR Certificates after distributions of principal on such Distribution Date
exceeds the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date.
Appraised Value: (i) With respect to any First Lien Mortgage Loan,
the value of the related Mortgaged Property based upon the appraisal made for
the originator at the time of origination of the Mortgage Loan or the sale price
of the Mortgaged Property at such time of origination, whichever is less, and
(ii) with respect to any Second Lien Mortgage Loan, the value, determined
pursuant to the applicable Underwriting Guidelines, of the related Mortgaged
Property as of the origination of the Second Lien Mortgage Loan; provided,
however, that in the case of a refinanced Mortgage Loan, such value is based
solely upon the appraisal made at the time of origination of such refinanced
Mortgage Loan.
Assignment Agreement: The Aames Assignment Agreement, the Fremont
Assignment Agreement, the Impac Assignment Agreement or the Meritage Assignment
Agreement, as applicable.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form (other than the assignee's
name and recording information not yet returned from the recording office),
reflecting the sale of the Mortgage to the Trust.
Auction Call: As defined in Section 11.01.
Available Funds: With respect to any Distribution Date and the
Mortgage Loans to the extent received by the Master Servicer (x) the sum of (i)
all scheduled installments of interest (net of the related Expense Fees) and
principal due on the Due Date on such Mortgage Loans in the related Due Period
and received on or prior to the related Determination Date, together with any
P&I Advances in respect thereof; (ii) all Condemnation Proceeds, Insurance
Proceeds and Liquidation Proceeds received during the related Prepayment Period
(in each case, net of unreimbursed expenses incurred in connection with a
liquidation or foreclosure and unreimbursed Advances, if any); (iii) all partial
or full prepayments on the Mortgage Loans received during the related Prepayment
Period together with all Compensating Interest paid by the Servicers in
connection therewith (excluding Prepayment Premiums); (iv) all amounts received
with respect to such Distribution Date as the Substitution Adjustment Amount or
the Repurchase Price in respect of a Deleted Mortgage Loan substituted for or a
Mortgage Loan repurchased by the Sponsor, Aames, Fremont, Impac, Meritage or the
Depositor, as applicable, as of such Distribution Date; (v) any Net Swap
Receipts for such Distribution Date; and (vi) the proceeds received with respect
to the termination of the Trust Fund pursuant to clause (a) of Section 9.01,
reduced by (y) all amounts in reimbursement for Advances previously made with
respect to the Mortgage Loans, and other amounts as to which the Servicers, the
Master Servicer, the Securities Administrator, the Depositor, the Trustee (or
co-trustee) or each Custodian are entitled to be paid or reimbursed pursuant to
this Agreement.
Avelo: Avelo Mortgage, L.L.C., a Delaware limited liability company,
and its successors in interest.
Basic Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the Principal Remittance Amount for such
Distribution Date over (ii) the Excess Overcollateralized Amount, if any, for
such Distribution Date.
Basis Risk Carry Forward Amount: With respect to each Class of LIBOR
Certificates, as of any Distribution Date, the sum of (A) if on such
Distribution Date the Pass-Through Rate for any Class of LIBOR Certificates is
based upon a Loan Group Cap or the WAC Cap, the excess, if any, of (i) the
Accrued Certificate Interest Distribution Amount on such Class of LIBOR
Certificates would otherwise be entitled to receive on such Distribution Date
had such Pass-Through Rate not been subject to the Loan Group Cap or the WAC
Cap, over (ii) the Accrued Certificate Interest Distribution Amount on such
Class of Certificates on such Distribution Date taking into account (a) with
respect to the Class A-1 Certificates at the lesser of the WAC Cap and the Loan
Group I Cap, (b) with respect to the Class A-2 Certificates at the lesser of the
WAC Cap and the Loan Group II Cap, and (c) with respect to each other Class of
LIBOR Certificates, the WAC Cap, and (B) the Basis Risk Carry Forward Amount for
such Class of LIBOR Certificates for all previous Distribution Dates not
previously paid, together with interest thereon at a rate equal to the
applicable Pass-Through Rate for such Class of LIBOR Certificates for such
Distribution Date (without giving effect to the WAC Cap, Loan Group I Cap or
Loan Group II Cap, as applicable).
Basis Risk Payment: For any Distribution Date, an amount equal to
the lesser of (i) the aggregate of the Basis Risk Carry Forward Amounts for such
Distribution Date and (ii) the Class X Distributable Amount (prior to any
reduction for (x) amounts paid to the Excess Reserve Fund Account to pay any
Basis Risk Carry Forward Amount or (y) any Defaulted Swap Termination Payment).
Best's: Best's Key Rating Guide, as the same shall be amended from
time to time.
Book-Entry Certificates: As specified in the Preliminary Statement.
Business Day: Any day other than (i) Saturday or Sunday, or (ii) a
day on which banking and savings and loan institutions, in (a) the States of New
York, California, Maryland and Minnesota, (b) the State in which any Servicer's
servicing operations are located, or (c) the State in which any Corporate Trust
Office is located, are authorized or obligated by law or executive order to be
closed.
Certificate: Any one of the Certificates executed by the Securities
Administrator in substantially the forms attached hereto as exhibits.
Certificate Balance: With respect to any Class of LIBOR Certificates
or Residual Certificates, at any date, the maximum dollar amount of principal to
which the Holder thereof is then entitled hereunder, such amount being equal to
the Denomination thereof minus all distributions of principal previously made
with respect thereto and reduced by the amount of any Applied Realized Loss
Amounts previously allocated to such Class of Certificates pursuant to Section
4.05; provided, however, that immediately following the Distribution Date on
which a Subsequent Recovery is distributed, the Class Certificate Balances of
any Class or Classes of Certificates that have been previously reduced by
Applied Realized Loss Amounts will be increased, in order of seniority, by the
amount of the Subsequent Recovery distributed on such Distribution Date (up to
the amount of Applied Realized Loss Amounts allocated to such Class or Classes).
The Class X and Class P Certificates have no Certificate Balance.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Book-Entry Certificate.
Certificate Register: The register maintained pursuant to Section
5.02.
Certificateholder or Holder: The Person in whose name a Certificate
is registered in the Certificate Register, except that, solely for the purpose
of giving any consent pursuant to this Agreement, any Certificate registered in
the name of the Depositor or any Affiliate of the Depositor shall be deemed not
to be Outstanding and the Percentage Interest evidenced thereby shall not be
taken into account in determining whether the requisite amount of Percentage
Interests necessary to effect such consent has been obtained; provided, however,
that if any such Person (including the Depositor) owns 100% of the Percentage
Interests evidenced by a Class of Certificates, such Certificates shall be
deemed to be Outstanding for purposes of any provision hereof that requires the
consent of the Holders of Certificates of a particular Class as a condition to
the taking of any action hereunder. The Securities Administrator is entitled to
rely conclusively on a certification of the Depositor or any Affiliate of the
Depositor in determining which Certificates are registered in the name of an
Affiliate of the Depositor.
Class: All Certificates bearing the same class designation as set
forth in the Preliminary Statement.
Class A Certificate Group: Either the Class A-1 Certificate Group or
the Class A-2 Certificate Group, as applicable.
Class A Certificates: As specified in the Preliminary Statement.
Class A Principal Allocation Percentage: For any Distribution Date,
the percentage equivalent of a fraction, determined as follows: (A) with respect
to the Class A-1 Certificate Group, a fraction, the numerator of which is the
portion of the Principal Remittance Amount for such Distribution Date that is
attributable to the principal received or advanced on the Group I Mortgage Loans
and the denominator of which is the Principal Remittance Amount for such
Distribution Date; and (B) with respect to the Class A-2 Certificate Group, a
fraction, the numerator of which is the portion of the Principal Remittance
Amount for such Distribution Date that is attributable to the principal received
or advanced on the Group II Mortgage Loans and the denominator of which is the
Principal Remittance Amount for such Distribution Date.
Class A Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the aggregate Class Certificate Balances of
the Class A Certificates immediately prior to such Distribution Date over (ii)
the lesser of (A) 50.30% of the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class A-1 Certificate Group: The Class A-1 Certificates.
Class A-1 Certificates: All Certificates bearing the class
designation of "Class A-1."
Class A-2 Certificate Group: The Class A-2 Certificates.
Class A-2 Certificates: As specified in the Preliminary Statement.
Class A-2A Certificates: All Certificates bearing the class
designation of "Class A-2A."
Class A-2B Certificates: All Certificates bearing the class
designation of "Class A-2B."
Class A-2C Certificates: All Certificates bearing the class
designation of "Class A-2C."
Class A-2D Certificates: All Certificates bearing the class
designation of "Class A-2D."
Class B Certificates: As specified in the Preliminary Statement.
Class B-1 Certificates: All Certificates bearing the class
designation of "Class B-1."
Class B-1 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class M-4 Certificates (after
taking into account the distribution of the Class M-4 Principal Distribution
Amount on such Distribution Date), (F) the Class Certificate Balance of the
Class M-5 Certificates (after taking into account the distribution of the Class
M-5 Principal Distribution Amount on such Distribution Date), (G) the Class
Certificate Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date), (H) the Class Certificate Balance of the Class M-7 Certificates (after
taking into account the distribution of the Class M-7 Principal Distribution
Amount on such Distribution Date), (I) the Class Certificate Balance of the
Class M-8 Certificates (after taking into account the distribution of the Class
M-8 Principal Distribution Amount on such Distribution Date), (J) the Class
Certificate Balance of the Class M-9 Certificates (after taking into account the
distribution of the Class M-9 Principal Distribution Amount on such Distribution
Date) and (K) the Class Certificate Balance of the Class B-1 Certificates
immediately prior to such Distribution Date, over (ii) the lesser of (A) the
product of (x) 92.00% and (y) the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date, and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class B-2 Certificates: All Certificates bearing the class
designation of "Class B-2."
Class B-2 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class M-4 Certificates (after
taking into account the distribution of the Class M-4 Principal Distribution
Amount on such Distribution Date), (F) the Class Certificate Balance of the
Class M-5 Certificates (after taking into account the distribution of the Class
M-5 Principal Distribution Amount on such Distribution Date), (G) the Class
Certificate Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date), (H) the Class Certificate Balance of the Class M-7 Certificates (after
taking into account the distribution of the Class M-7 Principal Distribution
Amount on such Distribution Date), (I) the Class Certificate Balance of the
Class M-8 Certificates (after taking into account the distribution of the Class
M-8 Principal Distribution Amount on such Distribution Date), (J) the Class
Certificate Balance of the Class M-9 Certificates (after taking into account the
distribution of the Class M-9 Principal Distribution Amount on such Distribution
Date), (K) the Class Certificate Balance of the Class B-1 Certificates (after
taking into account the distribution of the Class B-1 Principal Distribution
Amount on such Distribution Date) and (L) the Class Certificate Balance of the
Class B-2 Certificates immediately prior to such Distribution Date, over (ii)
the lesser of (A) the product of (x) 94.20% and (y) the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date, and (B) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over the Overcollateralization Floor.
Class Certificate Balance: With respect to any Class and as to any
date of determination, the aggregate of the Certificate Balances of all
Certificates of such Class as of such date.
Class IO Interest: As specified in the Preliminary Statement.
Class IO Shortfalls: As defined in Section 8.13. For the avoidance
of doubt, the Class IO Shortfall for any Distribution Date shall equal the
amount payable to the Class X Certificates in respect of amounts due to the Swap
Provider on such Distribution Date (other than Defaulted Swap Termination
Payments) in excess of the amount payable on the Class X Interest (prior to any
reduction for Basis Risk Payments or Defaulted Swap Termination Payments) on
such Distribution Date, all as further provided in Section 8.13.
Class LT-R Interest: The residual interest in the Lower-Tier REMIC
as described in the Preliminary Statement and the related footnote thereto.
Class M Certificates: As specified in the Preliminary Statement.
Class M-1 Certificates: All Certificates bearing the class
designation of "Class M-1."
Class M-1 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), and (B) the Class Certificate Balance of the Class M-1 Certificates
immediately prior to such Distribution Date, over (ii) the lesser of (A) the
product of (x) 58.20% and (y) the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date, and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class M-2 Certificates: All Certificates bearing the class
designation of "Class M-2."
Class M-2 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date) and (C) the Class Certificate Balance of the
Class M-2 Certificates immediately prior to such Distribution Date, over (ii)
the lesser of (A) the product of (x) 65.60% and (y) the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date, and (B) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over the Overcollateralization Floor.
Class M-3 Certificates: All Certificates bearing the class
designation of "Class M-3."
Class M-3 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date) and (D) the Class
Certificate Balance of the Class M-3 Certificates immediately prior to such
Distribution Date, over (ii) the lesser of (A) the product of (x) 70.10% and (y)
the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date, and (B) the excess, if any, of the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class M-4 Certificates: All Certificates bearing the class
designation of "Class M-4."
Class M-4 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date) and (E) the Class Certificate Balance of the Class M-4 Certificates
immediately prior to such Distribution Date, over (ii) the lesser of (A) the
product of (x) 74.10% and (y) the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date, and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class M-5 Certificates: All Certificates bearing the class
designation of "Class M-5."
Class M-5 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class M-4 Certificates (after
taking into account the distribution of the Class M-4 Principal Distribution
Amount on such Distribution Date) and (F) the Class Certificate Balance of the
Class M-5 Certificates immediately prior to such Distribution Date, over (ii)
the lesser of (A) the product of (x) 77.80% and (y) the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date, and (B) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over the Overcollateralization Floor.
Class M-6 Certificates: All Certificates bearing the class
designation of "Class M-5."
Class M-6 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class M-4 Certificates (after
taking into account the distribution of the Class M-4 Principal Distribution
Amount on such Distribution Date), (F) the Class Certificate Balance of the
Class M-5 Certificates (after taking into account the distribution of the Class
M-5 Principal Distribution Amount on such Distribution Date) and (G) the Class
Certificate Balance of the Class M-6 Certificates immediately prior to such
Distribution Date, over (ii) the lesser of (A) the product of (x) 81.20% and (y)
the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date, and (B) the excess, if any, of the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class M-7 Certificates: All Certificates bearing the class
designation of "Class M-7."
Class M-7 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class M-4 Certificates (after
taking into account the distribution of the Class M-4 Principal Distribution
Amount on such Distribution Date), (F) the Class Certificate Balance of the
Class M-5 Certificates (after taking into account the distribution of the Class
M-5 Principal Distribution Amount on such Distribution Date), (G) the Class
Certificate Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date) and (H) the Class Certificate Balance of the Class M-7 Certificates
immediately prior to such Distribution Date, over (ii) the lesser of (A) the
product of (x) 84.40% and (y) the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date, and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class M-8 Certificates: All Certificates bearing the class
designation of "Class M-8."
Class M-8 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class M-4 Certificates (after
taking into account the distribution of the Class M-4 Principal Distribution
Amount on such Distribution Date), (F) the Class Certificate Balance of the
Class M-5 Certificates (after taking into account the distribution of the Class
M-5 Principal Distribution Amount on such Distribution Date), (G) the Class
Certificate Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date), (H) the Class Certificate Balance of the Class M-7 Certificates (after
taking into account the distribution of the Class M-7 Principal Distribution
Amount on such Distribution Date) and (I) the Class Certificate Balance of the
Class M-8 Certificates immediately prior to such Distribution Date, over (ii)
the lesser of (A) the product of (x) 87.20% and (y) the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date, and (B) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over the Overcollateralization Floor.
Class M-9 Certificates: All Certificates bearing the class
designation of "Class M-9."
Class M-9 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class M-4 Certificates (after
taking into account the distribution of the Class M-4 Principal Distribution
Amount on such Distribution Date), (F) the Class Certificate Balance of the
Class M-5 Certificates (after taking into account the distribution of the Class
M-5 Principal Distribution Amount on such Distribution Date), (G) the Class
Certificate Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date), (H) the Class Certificate Balance of the Class M-7 Certificates (after
taking into account the distribution of the Class M-7 Principal Distribution
Amount on such Distribution Date), (I) the Class Certificate Balance of the
Class M-8 Certificates (after taking into account the distribution of the Class
M-8 Principal Distribution Amount on such Distribution Date) and (J) the Class
Certificate Balance of the Class M-9 Certificates immediately prior to such
Distribution Date, over (ii) the lesser of (A) the product of (x) 89.60% and (y)
the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date, and (B) the excess, if any, of the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class P Certificates: All Certificates bearing the class designation
of "Class P."
Class PT1-R Interest: The residual interest in Pooling-Tier REMIC-1
as described in the Preliminary Statement and the related footnote thereto.
Class PT2-R Interest: The residual interest in Pooling-Tier REMIC-2
as described in the Preliminary Statement and the related footnote thereto.
Class R Certificates: As defined in the Preliminary Statement.
Class R Certificates: All Certificates bearing the class designation
of "Class R."
Class RC Certificates: All Certificates bearing the class
designation of "Class RC."
Class RX Certificates: All Certificates bearing the class
designation of "Class RX."
Class UT-IO Interest: A regular interest in the Upper-Tier REMIC as
described in the Preliminary Statement and the related footnote thereto.
Class UT-R Interest: The residual interest in the Upper-Tier REMIC
as described in the Preliminary Statement and the related footnote thereto.
Class UT-X Interest: A regular interest in the Upper-Tier REMIC as
described in the Preliminary Statement and the related footnote thereto.
Class X Certificates: All Certificates bearing the class designation
of "Class X."
Class X Distributable Amount: On any Distribution Date, the sum of
(i) as a distribution in respect of interest, the amount of interest that has
accrued on the Class UT-X Interest and not applied as an Extra Principal
Distribution Amount on such Distribution Date, plus any such accrued interest
remaining undistributed from prior Distribution Dates, plus (without
duplication) (ii) as a distribution in respect of principal, any portion of the
principal balance of the Class UT-X Interest which is distributable as an
Overcollateralization Reduction Amount, minus (iii) any amounts paid from the
Excess Reserve Fund Account to pay Basis Risk Carry Forward Amounts, and any
Swap Termination Payment payable to the Swap Provider.
Class X Interest: The regular interest in the Class X REMIC
represented by the Class X Certificates as specified and described in the
Preliminary Statement and the related footnote thereto.
Class X REMIC: As defined in the Preliminary Statement.
Class X REMIC Regular Interest: Each of the Class X Interest and
Class IO Interest issued by the Class X REMIC.
Closing Date: May 26, 2006.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
Collection Accounts: As defined in Section 3.10(a).
Combined Loan-to-Value Ratio or CLTV: As of the date of origination
and as to any Second Lien Mortgage Loan, the ratio, expressed as a percentage,
of (a) the sum of (i) the outstanding principal balance of the Second Lien
Mortgage Loan as of the date of origination and (ii) the outstanding principal
balance as of the date of origination of any mortgage loan or mortgage loans
that are senior to or equal in priority to the Second Lien Mortgage Loan and
which are secured by the same Mortgaged Property to (b) the Appraised Value.
Commission: The United States Securities and Exchange Commission.
Compensating Interest: For any Distribution Date and each Servicer,
the lesser of (a) the Prepayment Interest Shortfall, if any, for such
Distribution Date, with respect to voluntary Principal Prepayments in Full
(excluding any payments made upon liquidation of the Mortgage Loan) during the
related Prepayment Period, and (b)(i) with respect to Xxxxxx and Avelo, one-half
of the Servicing Fee payable to Xxxxxx or Avelo, as applicable, for such
Distribution Date and (ii) with respect to SPS, the Servicing Fee payable to SPS
for such Distribution Date. During the period which Xxxxxxx will be interim
servicing, any Prepayment Interest Shortfalls resulting from Principal
Prepayments with respect to any Fremont Mortgage Loans during this period will
not be covered by Compensating Interest.
Condemnation Proceeds: All awards, compensation and/or settlements
in respect of a Mortgaged Property, whether permanent or temporary, partial or
entire, by exercise of the power of eminent domain or condemnation, to the
extent not required to be released to a Mortgagor in accordance with the terms
of the related Mortgage Loan Documents.
Conduit Mortgage Loan: Each Mortgage Loan purchased by the Sponsor
pursuant to its mortgage conduit program and identified as a "Conduit Mortgage
Loan" on the Mortgage Loan Schedule.
Corporate Trust Office: With respect to the Securities
Administrator: (i) for certificate transfer purposes, the office of the
Securities Administrator at Sixth Street and Marquette Avenue, Minneapolis,
Minnesota 55479, Attention: Corporate Trust Services, GSAMP 2005-HE3, (ii) for
all other purposes, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000,
Attention: Client Manager GSAMP 05-HE3, or (iii) at such other address as the
Securities Administrator may designate from time to time by notice to the
Certificateholders. With respect to the Trustee, the designated office of the
Trustee at which at any particular time its corporate trust business with
respect to this Agreement is administered, which office at the date of the
execution of this Agreement is located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx, 00000, Attn: Global Securities and Trust Services--GSAMP
2006-HE3, and which is the address to which notices to and correspondence with
the Trustee should be directed.
Corresponding Actual Crossover Distribution Date: For each
Pooling-Tier REMIC-2 IO Interest, the related Corresponding Scheduled Crossover
Distribution Date, unless on such date two times the aggregate Pooling-Tier
REMIC-2 IO Notional Balance of each other Pooling-Tier REMIC-2 IO Interest then
outstanding is less than the scheduled swap notional amount of the Interest Rate
Swap Agreement applicable for such Distribution Date, in which case the
Corresponding Actual Crossover Distribution Date for such Pooling-Tier REMIC-2
IO Interest shall be the first Distribution Date thereafter on which two times
the aggregate Pooling-Tier REMIC-2 IO Notional Balance of each other
Pooling-Tier REMIC-2 IO Interest then outstanding is greater than or equal to
the scheduled swap notional amount of the Interest Rate Swap Agreement.
Corresponding Class and Corresponding REMIC: The Class of interests
in one Trust REMIC created under this Agreement that corresponds to the Class of
interests in another such Trust REMIC or to a Class of Certificates and the
Trust REMIC in which the corresponding Certificate represents the related
regular interest issued from such Trust REMIC in the manner set out below.
Corresponding
Lower-Tier Upper-Tier REMIC Class of
Class Designation Regular Interest Certificates Corresponding REMIC
------------------- ------------------- ------------------ ---------------------
Class LT-A-1 Class A-1 Class A-1 Upper-Tier REMIC
Class LT-A-2A Class A-2A Class A-2A Upper-Tier REMIC
Class LT-A-2B Class A-2B Class A-2B Upper-Tier REMIC
Class LT-A-2C Class A-2C Class A-2C Upper-Tier REMIC
Class LT-A-2D Class A-2D Class A-2D Upper-Tier REMIC
Class LT-M-1 Class M-1 Class M-1 Upper-Tier REMIC
Class LT-M-2 Class M-2 Class M-2 Upper-Tier REMIC
Class LT-M-3 Class M-3 Class M-3 Upper-Tier REMIC
Class LT-M-4 Class M-4 Class M-4 Upper-Tier REMIC
Class LT-M-5 Class M-5 Class M-5 Upper-Tier REMIC
Class LT-M-6 Class M-6 Class M-6 Upper-Tier REMIC
Class LT-M-7 Class M-7 Class M-7 Upper-Tier REMIC
Class LT-M-8 Class M-8 Class M-8 Upper-Tier REMIC
Class LT-M-9 Class M-9 Class M-9 Upper-Tier REMIC
Class LT-B-1 Class B-1 Class B-1 Upper-Tier REMIC
Class LT-B-2 Class B-2 Class B-2 Upper-Tier REMIC
Corresponding Pooling-Tier REMIC-2 IO Interest: As described in the
Preliminary Statement.
Corresponding Scheduled Crossover Distribution Date: The
Distribution Date in the month and year specified in the Preliminary Statement
corresponding to a Pooling-Tier REMIC-2 IO Interest.
Cumulative Loss Event: With respect to any Distribution Date, a
Cumulative Loss Event occurs if the Cumulative Loss Percentage exceeds the
applicable percentage set forth below with respect to such Distribution Date:
Distribution Date Occurring In Loss Percentage
--------------------------------------------------------------------------------
June 2009 through May 2010 4.75% of the Cut-off Date Pool Principal
Balance
June 2010 through May 2011 6.85% of the Cut-off Date Pool Principal
Balance
June 2011 through May 2012 8.50% of the Cut-off Date Pool Principal
Balance
June 2012 and thereafter 9.00% of the Cut-off Date Pool Principal
Balance
Cumulative Realized Loss Percentage: With respect to any
Distribution Date, the percentage equivalent of a fraction, the numerator of
which is the aggregate amount of Realized Losses incurred from the Cut-off Date
to the last day of the calendar month preceding the month in which such
Distribution Date occurs and the denominator of which is the Cut-off Date Pool
Principal Balance.
Custodial File: With respect to each Mortgage Loan, any Mortgage
Loan Document which is delivered to the applicable Custodian or which at any
time comes into the possession of the applicable Custodian.
Custodian: Deutsche Bank National Trust Company, a national banking
association, and its successors in interest, X.X. Xxxxxx Trust Company, National
Association, a national banking association, and its successors in interest or
U.S. Bank National Association, a national banking association, and its
successors in interest, as applicable.
Cut-off Date: May 1, 2006.
Cut-off Date Pool Principal Balance: The aggregate Stated Principal
Balances of all Mortgage Loans as of the Cut-off Date.
Cut-off Date Principal Balance: As to any Mortgage Loan, the Stated
Principal Balance thereof as of the close of business on the Cut-off Date (after
giving effect to payments of principal due on that date, whether or not
received).
Data Tape Information: The information provided by the Original Loan
Sellers or the Servicers as of the Cut-off Date to the Depositor setting forth
the following information with respect to each Mortgage Loan: (1) the applicable
Original Loan Seller's Mortgage Loan identifying number; (2) the Mortgagor's
name; (3) the street address of the Mortgaged Property including the city, state
and zip code; (4) a code indicating whether the Mortgaged Property is
owner-occupied, a second home or investment property; (5) the number and type of
residential units constituting the Mortgaged Property (i.e., a single family
residence, a 2-4 family residence, a unit in a condominium project or a unit in
a planned unit development or a manufactured housing unit); (6) the original
months to maturity or the remaining months to maturity from the Cut-off Date, in
any case based on the original amortization schedule and, if different, the
maturity expressed in the same manner but based on the actual amortization
schedule; (7) with respect to First Lien Mortgage Loans, the Loan-to-Value Ratio
at origination, and with respect to Second Lien Mortgage Loans, the Combined
Loan-to-Value Ratio at origination; (8) the Mortgage Interest Rate as of the
Cut-off Date; (9) the date on which the Scheduled Payment was due on the
Mortgage Loan and, if such date is not consistent with the Due Date currently in
effect, such Due Date; (10) the stated maturity date; (11) the amount of the
Scheduled Payment as of the Cut-off Date; (12) the last payment date on which a
Scheduled Payment was actually applied to pay interest and the outstanding
principal balance; (13) the original principal amount of the Mortgage Loan; (14)
the principal balance of the Mortgage Loan as of the close of business on the
Cut-off Date, after deduction of payments of principal due and collected on or
before the Cut-off Date; (15) with respect to Adjustable Rate Mortgage Loans,
the Adjustment Date; (16) with respect to Adjustable Rate Mortgage Loans, the
Gross Margin; (17) with respect to Adjustable Rate Mortgage Loans, the Lifetime
Rate Cap under the terms of the Mortgage Note; (18) with respect to Adjustable
Rate Mortgage Loans, a code indicating the type of Index; (19) with respect to
Adjustable Rate Mortgage Loans, the Periodic Mortgage Interest Rate Cap under
the terms of the Mortgage Note; (20) with respect to Adjustable Rate Mortgage
Loans, the Periodic Mortgage Interest Rate Floor under the terms of the Mortgage
Note; (21) the type of Mortgage Loan (i.e., fixed rate, adjustable rate, first
lien, second lien); (22) a code indicating the purpose of the loan (i.e.,
purchase, rate and term refinance, equity take-out refinance); (23) a code
indicating the documentation style (i.e., full documentation, limited
documentation or stated income); (24) the loan credit classification (as
described in the Underwriting Guidelines); (25) whether such Mortgage Loan
provides for a Prepayment Premium; (26) the Prepayment Premium period of such
Mortgage Loan, if applicable; (27) a description of the Prepayment Premium, if
applicable; (28) the Mortgage Interest Rate as of origination; (29) the credit
risk score (FICO score) at origination; (30) the date of origination; (31) the
date of the purchase of the Mortgage Loan, if applicable; (32) a code indicating
whether the Mortgage Loan is assumable; (33) the Mortgage Interest Rate
adjustment period; (34) the Mortgage Interest Rate floor; (35) the Mortgage
Interest Rate calculation method (i.e., 30/360, simple interest, other); (36) a
code indicating whether the Mortgage Loan has been modified; (37) the one-year
payment history; (38) the Due Date for the first Scheduled Payment; (39) the
original Scheduled Payment due; (40) with respect to the related Mortgagor, the
debt-to-income ratio; (41) the Appraised Value of the Mortgaged Property; (42)
the sales price of the Mortgaged Property if the Mortgage Loan was originated in
connection with the purchase of the Mortgaged Property; (43) whether the
Mortgage Loan is covered by PMI policy and name of insurer; (44) with respect to
each MERS Designated Mortgage Loan, the MERS identification number; (45) a code
indicating if a Mortgage Loan is or has had a 30-Day Delinquency; and (46) a
code indicating if the Mortgage Loan is an Interest Only Mortgage Loan. With
respect to the Mortgage Loans in the aggregate: (1) the number of Mortgage
Loans; (2) the current aggregate outstanding principal balance of the Mortgage
Loans; (3) the weighted average Mortgage Interest Rate of the Mortgage Loans;
and (4) the weighted average maturity of the Mortgage Loans.
Debt Service Reduction: With respect to any Mortgage Loan, a
reduction by a court of competent jurisdiction in a proceeding under the United
States Bankruptcy Code in the Scheduled Payment for such Mortgage Loan which
became final and non appealable, except for such a reduction resulting from a
Deficient Valuation or any reduction that results in a permanent forgiveness of
principal.
Defaulted Swap Termination Payment: Any Swap Termination Payment
required to be paid by the Trust to the Swap Provider pursuant to the Interest
Rate Swap Agreement as a result of an Event of Default (as defined in the
Interest Rate Swap Agreement) with respect to which the Swap Provider is the
defaulting party or a Termination Event (as defined in the Interest Rate Swap
Agreement) (other than Illegality or a Tax Event that is not a Tax Event Upon
Merger (each as defined in the Interest Rate Swap Agreement )) with respect to
which the Swap Provider is the sole Affected Party (as defined in the Interest
Rate Swap Agreement).
Deficient Valuation: With respect to any Mortgage Loan, a valuation
of the related Mortgaged Property by a court of competent jurisdiction in an
amount less than the then outstanding principal balance of the Mortgage Loan,
which valuation results from a proceeding initiated under the United States
Bankruptcy Code.
Definitive Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(e).
Deleted Mortgage Loan: A Mortgage Loan that is removed from the
Trust pursuant to the terms of this Agreement.
Denomination: With respect to each Certificate, the amount set forth
on the face thereof as the "Initial Certificate Balance of this Certificate" or
the Percentage Interest appearing on the face thereof.
Depositor: GS Mortgage Securities Corp., a Delaware corporation, and
its successors in interest.
Depository: The initial Depository shall be The Depository Trust
Company, the nominee of which is CEDE & Co., as the registered Holder of the
Book-Entry Certificates. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(a)(5) of the Uniform Commercial Code of
the State of New York.
Depository Institution: Any depository institution or trust company,
including the Trustee and the Securities Administrator, that (a) is incorporated
under the laws of the United States of America or any State thereof, (b) is
subject to supervision and examination by federal or state banking authorities
and (c) has outstanding unsecured commercial paper or other short-term unsecured
debt obligations that are rated "P-1" by Xxxxx'x, "F1+" by Fitch and "A-1" by
Standard & Poor's (in each case, to the extent they are designated as Rating
Agencies in the Preliminary Statement).
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: With respect to each Distribution Date, the 18th
day of the calendar month in which such Distribution Date occurs or, if such day
is not a Business Day, the immediately preceding Business Day.
Deutsche Bank: Deutsche Bank National Trust Company, National
Association, a national banking association, and its successors in interest.
Distribution Account: The separate Eligible Account created and
maintained by the Master Servicer pursuant to Section 3.27(b) in the name of the
Securities Administrator as paying agent on behalf of LaSalle Bank NA, for the
benefit of the Certificateholders and designated "Xxxxx Fargo Bank, N.A., in
trust for registered Holders of GSAMP Trust 2006-HE3 Mortgage Pass-Through
Certificates, Series 2006-HE3." Funds in the Distribution Account shall be held
in trust for the Certificateholders for the uses and purposes set forth in this
Agreement and may be invested in Permitted Investments.
Distribution Date: The 25th day of each calendar month or, if such
day is not a Business Day, the next succeeding Business Day, commencing in June
2006.
Document Certification and Exception Report: The report attached to
Exhibit G hereto.
Due Date: The day of the month on which the Scheduled Payment is due
on a Mortgage Loan, exclusive of any days of grace.
Due Period: With respect to any Distribution Date, the period
commencing on the second day of the calendar month preceding the month in which
the Distribution Date occurs and ending on the first day of the calendar month
in which the Distribution Date occurs.
Eligible Account: Either (i) an account maintained with a federal or
state-chartered depository institution or trust company that complies with the
definition of Eligible Institution, (ii) an account maintained with the
corporate trust department of a federal depository institution or
state-chartered depository institution subject to regulations regarding
fiduciary funds on deposit similar to Title 12 of the U.S. Code of Federal
Regulation Section 9.10(b), which, in either case, has corporate trust powers
and is acting in its fiduciary capacity or (iii) any other account acceptable to
each Rating Agency. Eligible Accounts may bear interest, and may include, if
otherwise qualified under this definition, accounts maintained with the
Securities Administrator. Each Eligible Account shall be a separate account.
Eligible Institution: A federal or state-chartered depository
institution or trust company the commercial paper, short-term debt obligations,
or other short-term deposits of which are rated "A-1+" by Standard & Poor's if
the amounts on deposit are to be held in the account for no more than 365 days
(or at least "A-2" by Standard & Poor's if the amounts on deposit are to be held
in the account for no more than 30 days), or the long-term unsecured debt
obligations of which are rated at least "AA-" by Standard & Poor's if the
amounts on deposit are to be held in the account for no more than 365 days, and
the commercial paper, short-term debt obligations or other short-term deposits
of which are rated at least "P-1" by Xxxxx'x and "F1+" by Fitch (or a comparable
rating if another Rating Agency is specified by the Depositor by written notice
to the Master Servicer, the Servicers, the Securities Administrator and the
Trustee) (in each case, to the extent they are designated as Rating Agencies in
the Preliminary Statement).
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
XXXXX-Xxxxxxxxxx Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of Prohibited
Transaction Exemption ("PTE") 2002-41, 67 Fed. Reg. 54487 (2002) (or any
successor thereto), or any substantially similar administrative exemption
granted by the U.S. Department of Labor.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Escrow Account: The Eligible Account or Accounts established and
maintained pursuant to Section 3.09(b).
Escrow Payments: As defined in Section 3.09(b) of this Agreement.
Event of Default: As defined in Section 7.01.
Excess Overcollateralized Amount: With respect to any Distribution
Date, the excess, if any, of (a) the Overcollateralized Amount on such
Distribution Date over (b) the Specified Overcollateralized Amount for such
Distribution Date.
Excess Reserve Fund Account: The separate Eligible Account created
and maintained by the Securities Administrator pursuant to Sections 3.27(a) in
the name of the Securities Administrator for the benefit of the Regular
Certificateholders and designated "Xxxxx Fargo Bank, N.A. in trust for
registered Holders of GSAMP Trust 2006-HE3, Mortgage Pass-Through Certificates,
Series 2006-HE3." Funds in the Excess Reserve Fund Account shall be held in
trust for the Regular Certificateholders for the uses and purposes set forth in
this Agreement. Amounts on deposit in the Excess Reserve Fund Account shall not
be invested.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Expense Fee Rate: As to each Mortgage Loan, a per annum rate equal
to the sum of the Servicing Fee Rate and the Master Servicing Fee Rate.
Expense Fees: As to each Mortgage Loan, the sum of the Servicing Fee
and the Master Servicing Fee.
Extra Principal Distribution Amount: As of any Distribution Date,
the lesser of (x) the related Total Monthly Excess Spread for such Distribution
Date and (y) the related Overcollateralization Deficiency for such Distribution
Date.
Xxxxxx Xxx: The Federal National Mortgage Association and its
successors in interest.
Xxxxxx Xxx Guides: The Xxxxxx Xxx Seller's Guide and the Xxxxxx Xxx
Servicer's Guide and all amendments or additions thereto.
FDIC: The Federal Deposit Insurance Corporation, and its successors
in interest.
Final Recovery Determination: With respect to any defaulted Mortgage
Loan or any REO Property (other than a Mortgage Loan or REO Property purchased
by the Depositor, the Sponsor, Aames, Fremont, Impac or Meritage as contemplated
by this Agreement), a determination made by the applicable Servicer that all
Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds and other
payments or recoveries which the applicable Servicer, in its reasonable good
faith judgment, expects to be finally recoverable in respect thereof have been
so recovered. Each Servicer shall maintain records, prepared by a Servicing
Officer, of each Final Recovery Determination made thereby.
Final Scheduled Distribution Date: The Final Scheduled Distribution
Date for each Class of Certificates is the Distribution Date occurring in May
2046.
First Lien Mortgage Loan: Any Mortgage Loan secured by a first lien
Mortgage on the related Mortgaged Property.
Fitch: Fitch, Inc., and its successors in interest. If Fitch is
designated as a Rating Agency in the Preliminary Statement, for purposes of
Section 12.05(b) the address for notices to Fitch shall be Fitch, Inc., Xxx
Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: MBS Monitoring - GSAMP
Trust 2006-HE3, or such other address as Fitch may hereafter furnish to the
Depositor, the Servicers, the Master Servicer, the Securities Administrator and
the Trustee.
Fixed Rate Mortgage Loan: A fixed rate Mortgage Loan.
Fixed Swap Rate: For any Distribution Date and the related Interest
Accrual Period a per annum rate equal to the product of (i) 2 and (ii) the rate
specified in the Interest Rate Swap Agreement for such Distribution Date and
related Interest Accrual Period.
Forbearance: As defined in Section 3.07(a).
Form 8-K Disclosure Information: As defined in Section 8.12(g).
40-Year Trigger Event: If on the 241st Distribution Date or any
Distribution Date thereafter, (i) the aggregate Stated Principal Balance of the
mortgage loans with a 40-year term to maturity, exceeds (ii) the actual
Overcollateralization Amount for such Distribution Date (after giving effect to
principal distributions on such Distribution Date other than principal
distributions resulting from this event).
Freddie Mac: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of the
Emergency Home Finance Act of 1970, as amended, and its successors in interest.
Fremont: Fremont Investment & Loan, a California state charted
industrial bank, and its successors in interest.
Fremont Agreements: Collectively, the Fremont Purchase Agreement,
the Fremont Servicing Agreement and the Fremont Assignment Agreement, copies of
which are attached hereto as Exhibit Z.
Fremont Assignment Agreement: The Assignment, Assumption and
Recognition Agreement, dated as of May 26, 2006, by and among Fremont, the
Sponsor and the Depositor.
Fremont Mortgage Loan: Each Mortgage Loan purchased by the Sponsor
pursuant to a Fremont Purchase Agreement and identified as a "Fremont Mortgage
Loan" on the Mortgage Loan Schedule.
Fremont Purchase Agreement: The First Amended and Restated Mortgage
Loan Purchase and Warranties Agreements, dated as of January 1, 2006, by and
between Fremont and the Sponsor, solely insofar as the Fremont Purchase
Agreement relates to the Fremont Mortgage Loans.
Fremont Servicing Agreement: The Amended and Restated Flow Interim
Servicing Agreement, dated as of January 1, 2006, by and between Fremont and the
Sponsor, solely insofar as the Fremont Servicing Agreement relates to the
Fremont Mortgage Loans.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan,
the fixed percentage amount set forth in the related Mortgage Note to be added
to the applicable Index to determine the Mortgage Interest Rate.
Group I Mortgage Loans: The Mortgage Loans identified on the
Mortgage Loan Schedule as Group I Mortgage Loans.
Group II Mortgage Loans: The Mortgage Loans identified on the
Mortgage Loan Schedule as Group II Mortgage Loans.
High Cost Mortgage Loan: A Mortgage Loan that is (a) covered by the
Home Ownership and Equity Protection Act of 1994, (b) identified, classified or
characterized as "high cost," "threshold," "covered," or "predatory" under any
other applicable state, federal or local law (or a similarly identified,
classified or characterized loan using different terminology under an applicable
law imposing heightened regulatory scrutiny or additional legal liability for
residential mortgage loans having high interest rates, points and/or fees) or
(c) categorized as "High Cost" or "Covered" pursuant to Appendix E of the
Standard & Poor's Glossary.
Home Loan: A Mortgage Loan categorized as "Home Loan" pursuant to
Appendix E of Standard & Poor's Glossary.
Impac: Impac Funding Corporation, a California corporation, and its
successors in interest.
Impac Agreements: Collectively, the Impac Purchase Agreement and the
Impac Assignment Agreement, copies of which are attached hereto as Exhibit AA.
Impac Assignment Agreement: The Assignment, Assumption and
Recognition Agreement, dated as of May 26, 2006, by and among Xxxxx (as
successor in interest to Novelle Financial Services, Inc.), the Sponsor and the
Depositor.
Impac Mortgage Loan: Each Mortgage Loan purchased by the Sponsor
pursuant to an Impac Purchase Agreement and identified as a "Impac Mortgage
Loan" on the Mortgage Loan Schedule.
Impac Purchase Agreement: The Mortgage Loan Purchase and Warranties
Agreements, dated as of December 1, 2005, by and between Novelle Financial
Services, Inc. and the Sponsor, solely insofar as the Impac Purchase Agreement
relates to the Impac Mortgage Loans.
Index: As to each Adjustable Rate Mortgage Loan, the index from time
to time in effect for the adjustment of the Mortgage Interest Rate set forth as
such on the related Mortgage Note.
Initial Certification: The Initial Certification submitted by each
Custodian substantially in the form of Exhibit F.
Insurance Policy: With respect to any Mortgage Loan included in the
Trust Fund, any insurance policy, including all riders and endorsements thereto
in effect, including any replacement policy or policies for any Insurance
Policies.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property.
Interest Accrual Period: With respect to each Class of LIBOR
Certificates and each Corresponding Class of Lower-Tier Regular Interests and
each Corresponding Class of Upper-Tier Regular Interests for any Distribution
Date, the period commencing on the immediately preceding Distribution Date (or,
for the initial Distribution Date, the Closing Date) and ending on the day
immediately preceding the current Distribution Date. For purposes of computing
interest accruals on each Class of LIBOR Certificates, each Corresponding Class
of Lower-Tier Regular Interest and each Corresponding Class of Upper-Tier
Regular Interest, each Interest Accrual Period has the actual number of days in
such period and each year is assumed to have 360 days.
Interest Only Mortgage Loan: A Mortgage Loan for which the related
Mortgage Note provides for Scheduled Payments of interest only for a period of
time as specified in the related Mortgage Note.
Interest Rate Swap Agreement: The interest rate swap agreement,
dated as of May 26, 2006, between Xxxxxxx Xxxxx Capital Markets, L.P. (as
assigned to and assumed by the Swap Provider) and Xxxxxxx Xxxxx Mortgage Company
or any other swap agreement (including any related schedules) entered into by
the Securities Administrator on behalf of the Trust pursuant to Section 2.01(d),
a copy of which is attached hereto as Exhibit X.
Interest Remittance Amount: With respect to any Distribution Date
and the Mortgage Loans in a Loan Group, that portion of Available Funds
allocated to interest relating to the Mortgage Loans in such Loan Group and any
Net Swap Receipts attributable to such Loan Group for such Distribution Date,
net of any Net Swap Payments made from such Loan Group with respect to such
Distribution Date. For purposes of this Agreement, any Net Swap Payments or Net
Swap Receipts shall be allocated by the Securities Administrator between Loan
Groups based on the respective aggregate Stated Principal Balance of the
Mortgage Loans in each Loan Group.
Investment Account: As defined in Section 3.12(a).
Investor: With respect to each MERS Designated Mortgage Loan, the
Person named on the MERS System as the investor pursuant to the MERS Procedures
Manual.
Investor-Based Exemption: Any of Prohibited Transaction Class
Exemption ("PTCE") 84-14 (for transactions by independent "qualified
professional asset managers"), PTCE 91-38 (for transactions by bank collective
investment funds), PTCE 90-1 (for transactions by insurance company pooled
separate accounts), PTCE 95-60 (for transactions by insurance company general
accounts) or PTCE 96-23 (for transactions effected by "in-house asset
managers"), or any comparable exemption available under Similar Law.
X.X. Xxxxxx Trust Company: X.X. Xxxxxx Trust Company, National
Association, a national banking association, and its successors in interest.
Late Collections: With respect to any Mortgage Loan and any Due
Period, all amounts received after the Determination Date immediately following
such Due Period, whether as late payments of Scheduled Payments or as Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds or otherwise, which
represent late payments or collections of principal and/or interest due (without
regard to any acceleration of payments under the related Mortgage and Mortgage
Note) but delinquent for such Due Period and not previously recovered.
Lender: As defined in Section 10.07.
LIBOR: With respect to any Interest Accrual Period for the LIBOR
Certificates, the rate determined by the Securities Administrator on the related
LIBOR Determination Date on the basis of the offered rate for one-month U.S.
dollar deposits as such rate appears on Telerate Page 3750 as of 11:00 a.m.
(London time) on such date; provided, that if such rate does not appear on
Telerate Page 3750, the rate for such date will be determined on the basis of
the rates at which one-month U.S. dollar deposits are offered by the Reference
Banks at approximately 11:00 a.m. (London time) on such date to prime banks in
the London interbank market. In such event, the Securities Administrator shall
request the principal London office of each of the Reference Banks to provide a
quotation of its rate. If at least two such quotations are provided, the rate
for that date will be the arithmetic mean of the quotations (rounded upwards if
necessary to the nearest whole multiple of 1/16%). If fewer than two quotations
are provided as requested, the rate for that date will be the arithmetic mean of
the rates quoted by major banks in New York City, selected by the Securities
Administrator (after consultation with the Depositor), at approximately 11:00
a.m. (New York City time) on such date for one-month U.S. dollar loans to
leading European banks.
LIBOR Certificates: As specified in the Preliminary Statement.
LIBOR Determination Date: With respect to any Interest Accrual
Period for the LIBOR Certificates, the second London Business Day preceding the
commencement of such Interest Accrual Period.
Lifetime Rate Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute maximum Mortgage
Interest Rate thereunder. The Mortgage Interest Rate during the terms of each
Adjustable Rate Mortgage Loan shall not at any time exceed the Mortgage Interest
Rate at the time of origination of such Adjustable Rate Mortgage Loan by more
than the amount per annum set forth on the Mortgage Loan Schedule.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) which was liquidated or
charged-off in the calendar month preceding the month of such Distribution Date
and as to which the applicable Servicer has certified (in accordance with this
Agreement) that it has made a Final Recovery Determination.
Liquidation Event: With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made as to such Mortgage Loan; or (iii) such Mortgage Loan is
removed from coverage under this Agreement by reason of its being purchased,
sold or replaced pursuant to or as contemplated by this Agreement. With respect
to any REO Property, either of the following events: (i) a Final Recovery
Determination is made as to such REO Property; or (ii) such REO Property is
removed from coverage under this Agreement by reason of its being purchased
pursuant to this Agreement.
Liquidation Proceeds: The amounts, other than Insurance Proceeds,
Condemnation Proceeds or those received following the acquisition of REO
Property, received in connection with the liquidation of a defaulted Mortgage
Loan, whether through a trustee's sale, foreclosure sale or otherwise, including
any Subsequent Recoveries.
Xxxxxx: Xxxxxx Loan Servicing LP, a Delaware limited partnership,
and its successors in interest.
Loan Group: The Group I Mortgage Loans or the Group II Mortgage
Loans, as applicable.
Loan Group Cap: The Loan Group I Cap or the Loan Group II Cap, as
applicable.
Loan Group I Cap: With respect to the Group I Mortgage Loans as of
any Distribution Date, a per annum rate equal to the product of (i) 30 divided
by the actual number of days in the applicable Interest Accrual Period and (ii)
the sum of (A) the weighted average of the Mortgage Interest Rates for each
Group I Mortgage Loan (in each case, less the applicable Expense Fee Rate) then
in effect on the beginning of the related Due Period and (B) Net Swap Receipts,
if any, less Net Swap Payments if any, for that Distribution Date divided by the
Stated Principal Balance of the Mortgage Loans at the beginning of the related
Due Period, multiplied by 12.
Loan Group II Cap: With respect to the Group II Mortgage Loans as of
any Distribution Date, a per annum rate equal to the product of (i) 30 divided
by the actual number of days in the applicable Interest Accrual Period and (ii)
the sum of (A) the weighted average of the Mortgage Interest Rates for each
Group II Mortgage Loan (in each case, less the applicable Expense Fee Rate) then
in effect on the beginning of the related Due Period and (B) Net Swap Receipts,
if any, less Net Swap Payments if any, for that Distribution Date divided by the
Stated Principal Balance of the Mortgage Loans at the beginning of the related
Due Period, multiplied by 12.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan, at
any time, the ratio (expressed as a percentage) of the principal balance of the
Mortgage Loan as of the date of determination, to the Appraisal Value of the
related Mortgaged Property.
London Business Day: Any day on which dealings in deposits of United
States dollars are transacted in the London interbank market.
Lower-Tier Interest Rate: As described in the Preliminary Statement.
Lower-Tier Principal Amount: As described in the Preliminary
Statement.
Lower-Tier Regular Interest: Each of the Class LT-A-1, Class
LT-A-2A, Class LT-A-2B, Class LT-A-2C, Class LT-A-2D, Class LT-M-1, Class
LT-M-2, Class LT-M-3, Class LT-M-4, Class LT-M-5, Class LT-M-6, Class LT-M-7,
Class LT-M-8, Class LT-M-9, Class LT-B-1, Class LT-B-2, Class LT-IO, Class LT-3,
Class LT-Group I, Class LT-Group II, and Class LT-Accrual Interests as described
in the Preliminary Statement.
Lower-Tier REMIC: As described in the Preliminary Statement.
Master Servicer: Wells Fargo, and if a successor master servicer is
appointed hereunder, such successor.
Master Servicer Event of Default: As defined in Section 9.04.
Master Servicing Fee: With respect to each Mortgage Loan and any
Distribution Date, an amount equal to the product of (i) one-twelfth of the
Master Servicing Fee Rate and (ii) the Stated Principal Balance of such Mortgage
Loan as of the first day of the calendar month preceding the month in which such
Distribution Date occurs. Such fee shall be payable monthly.
Master Servicing Fee Rate: With respect to any Mortgage Loan, a per
annum rate equal to 0.0075%.
Master Servicing Officer: Any officer of the Master Servicer
involved in, or responsible for, the administration and master servicing of the
Mortgage Loans.
Meritage: Meritage Mortgage Corporation, an Oregon corporation, and
its successors in interest.
Meritage Agreements: Collectively, the Meritage Purchase Agreement
and the Meritage Assignment Agreement, copies of which are attached hereto as
Exhibit BB.
Meritage Assignment Agreement: The Assignment, Assumption and
Recognition Agreement, dated as of May 26, 2006, by and among Meritage, the
Sponsor and the Depositor.
Meritage Mortgage Loan: Each Mortgage Loan purchased by the Sponsor
pursuant to a Meritage Purchase Agreement and identified as a "Meritage Mortgage
Loan" on the Mortgage Loan Schedule.
Meritage Purchase Agreement: The Amended and Restated Mortgage Loan
Purchase and Warranties Agreements, dated as of November 1, 2005, by and between
Meritage and the Sponsor, solely insofar as the Meritage Purchase Agreement
relates to the Meritage Mortgage Loans.
MERS: As defined in Section 2.01(b).
MERS Designated Mortgage Loan: Mortgage Loans for which (a) the
applicable Original Loan Seller has designated or will designate MERS as, and
has taken or will take such action as is necessary to cause MERS to be, the
mortgagee of record, as nominee for the applicable Original Loan Seller, in
accordance with the MERS Procedures Manual and (b) the applicable Original Loan
Seller has designated or will designate the Trust as the Investor on the MERS(R)
System.
MERS Procedures Manual: The MERS Procedures Manual, as it may be
amended, supplemented or otherwise modified from time to time.
MERS(R) System: MERS mortgage electronic registry system, as more
particularly described in the MERS Procedures Manual.
Monthly Statement: The statement made available to the
Certificateholders pursuant to Section 4.03.
Moody's: Xxxxx'x Investors Service, Inc., and its successors in
interest. If Xxxxx'x is designated as a Rating Agency in the Preliminary
Statement, for purposes of Section 12.05(b) the address for notices to Moody's
shall be Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Residential Mortgage Pass-Through Group, or such other address
as Moody's may hereafter furnish to the Depositor, the Securities Administrator,
the Servicers and the Trustee.
Mortgage: The mortgage, deed of trust or other instrument identified
on the Mortgage Loan Schedule as securing a Mortgage Note, including all riders
thereto.
Mortgage File: The items pertaining to a particular Mortgage Loan
contained in either the Servicing File or Custodial File.
Mortgage Interest Rate: The annual rate of interest borne on a
Mortgage Note with respect to each Mortgage Loan.
Mortgage Loan: An individual Mortgage Loan which is the subject of
this Agreement, each Mortgage Loan originally sold and subject to this Agreement
being identified on the Mortgage Loan Schedule, which Mortgage Loan includes,
without limitation, the Mortgage File, the Custodial File, the Servicing File,
the Scheduled Payments, Principal Prepayments, Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds, REO Disposition proceeds, Prepayment
Premiums and all other rights, benefits, proceeds and obligations arising from
or in connection with such Mortgage Loan, excluding replaced or repurchased
Mortgage Loans.
Mortgage Loan Documents: The mortgage loan documents pertaining to
each Mortgage Loan.
Mortgage Loan Schedule: A schedule of Mortgage Loans delivered to
the Securities Administrator on the Closing Date and referred to on Schedule I,
such schedule setting forth the following information with respect to each
Mortgage Loan as of the Cut-off Date: (1) the applicable Original Loan Seller's
Mortgage Loan identifying number; (2) the Mortgagor's name; (3) the street
address of the Mortgaged Property including the city, state and zip code; (4) a
code indicating whether the Mortgaged Property is owner-occupied, a second home
or investment property; (5) the number and type of residential units
constituting the Mortgaged Property (i.e., a single family residence, a 2-4
family residence, a unit in a condominium project or a unit in a planned unit
development or a manufactured housing unit); (6) the original months to maturity
or the remaining months to maturity from the Cut-off Date, in any case based on
the original amortization schedule and, if different, the maturity expressed in
the same manner but based on the actual amortization schedule; (7) with respect
to First Lien Mortgage Loans, the Loan-to-Value Ratio at origination, and with
respect to Second Lien Mortgage Loans, the Combined Loan-to-Value Ratio at
origination; (8) the Mortgage Interest Rate as of the Cut-off Date; (9) the date
on which the Scheduled Payment was due on the Mortgage Loan and, if such date is
not consistent with the Due Date currently in effect, such Due Date; (10) the
stated maturity date; (11) the amount of the Scheduled Payment as of the Cut-off
Date; (12) the last payment date on which a Scheduled Payment was actually
applied to pay interest and the outstanding principal balance; (13) the original
principal amount of the Mortgage Loan; (14) the principal balance of the
Mortgage Loan as of the close of business on the Cut-off Date, after deduction
of payments of principal due and collected on or before the Cut-off Date; (15)
with respect to Adjustable Rate Mortgage Loans, the Adjustment Date; (16) with
respect to Adjustable Rate Mortgage Loans, the Gross Margin; (17) with respect
to Adjustable Rate Mortgage Loans, the Lifetime Rate Cap under the terms of the
Mortgage Note; (18) with respect to Adjustable Rate Mortgage Loans, a code
indicating the type of Index; (19) with respect to Adjustable Rate Mortgage
Loans, the Periodic Mortgage Interest Rate Cap under the terms of the Mortgage
Note; (20) with respect to Adjustable Rate Mortgage Loans, the Periodic Mortgage
Interest Rate Floor under the terms of the Mortgage Note; (21) the type of
Mortgage Loan (i.e., fixed rate, adjustable rate, first lien, second lien); (22)
a code indicating the purpose of the loan (i.e., purchase, rate and term
refinance, equity take-out refinance); (23) a code indicating the documentation
style (i.e., full documentation, limited documentation or stated income); (24)
the loan credit classification (as described in the Underwriting Guidelines);
(25) whether such Mortgage Loan provides for a Prepayment Premium; (26) the
Prepayment Premium period of such Mortgage Loan, if applicable; (27) a
description of the Prepayment Premium, if applicable; (28) the Mortgage Interest
Rate as of origination; (29) the credit risk score (FICO score) at origination;
(30) the date of origination; (31) the date of the purchase of the Mortgage
Loan, if applicable; (32) a code indicating whether the Mortgage Loan is
assumable; (33) the Mortgage Interest Rate adjustment period; (34) the Mortgage
Interest Rate floor; (35) the Mortgage Interest Rate calculation method (i.e.,
30/360, simple interest, other); (36) a code indicating whether the Mortgage
Loan has been modified; (37) the one-year payment history; (38) the Due Date for
the first Scheduled Payment; (39) the original Scheduled Payment due; (40) with
respect to the related Mortgagor, the debt-to-income ratio; (41) the Appraised
Value of the Mortgaged Property; (42) the sales price of the Mortgaged Property
if the Mortgage Loan was originated in connection with the purchase of the
Mortgaged Property; (43) whether the Mortgage Loan is covered by PMI policy and
name of insurer; (44) with respect to each MERS Designated Mortgage Loan, the
MERS identification number; (45) a code indicating whether the Mortgage Loan is
a Group I Mortgage Loan or a Group II Mortgage Loan; (46) a code indicating if a
Mortgage Loan is or has had a 30 Day Delinquency; (47) with respect to each MERS
Designated Mortgage Loan, the MERS identification number; (48) a code indicating
if the Mortgage Loan is an Interest Only Mortgage Loan; (49) a code indicating
whether such Mortgage Loan is a Home Loan; (50) the Original Purchase Date; (51)
the applicable Custodian; (52) the applicable Servicer and (53) an
identification of the Mortgage Loan as an Aames Mortgage Loan, an Acoustic
Mortgage Loan, a Conduit Mortgage Loan, a Fremont Mortgage Loan, an Impac
Mortgage Loan or a Meritage Mortgage Loan. With respect to the Mortgage Loans in
the aggregate: (1) the number of Mortgage Loans; (2) the current aggregate
outstanding principal balance of the Mortgage Loans; (3) the weighted average
Mortgage Interest Rate of the Mortgage Loans; and (4) the weighted average
maturity of the Mortgage Loans.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor under a Mortgage Loan, including all riders thereto.
Mortgaged Property: The real property (or leasehold estate, if
applicable) identified on the Mortgage Loan Schedule as securing repayment of
the debt evidenced by a Mortgage Note.
Mortgagor: The obligor(s) on a Mortgage Note.
Net Monthly Excess Cash Flow: For any Distribution Date the amount
remaining for distribution pursuant to Section 4.02(a)(iii) (before giving
effect to distributions pursuant to such subsection).
Net Prepayment Interest Shortfall: For any Distribution Date, the
amount by which the sum of the Prepayment Interest Shortfalls for such
Distribution Date exceeds the sum of the Compensating Interest payments made
with respect to such Distribution Date.
Net Swap Payment: With respect to any Distribution Date, any net
payment (other than a Swap Termination Payment) payable by the Trust to the Swap
Provider on the related Fixed Rate Payer Payment Date (as defined in the
Interest Rate Swap Agreement).
Net Swap Receipt: With respect to any Distribution Date, any net
payment (other than a Swap Termination Payment) made by the Swap Provider to the
Trust on the related Floating Rate Payer Payment Date (as defined in the
Interest Rate Swap Agreement).
NIM Issuer: The entity established as the issuer of the NIM
Securities.
NIM Securities: Any debt securities secured or otherwise backed by
some or all of the Class X and Class P Certificates that are rated by one or
more Rating Agencies.
NIM Trustee: The trustee for the NIM Securities.
90+ Day Delinquent Mortgage Loan: Each Mortgage Loan with respect to
which any portion of a Scheduled Payment is, as of the last day of the prior Due
Period, three months or more past due (without giving effect to any grace
period), including each Mortgage Loan in foreclosure, all REO Property and each
Mortgage Loan for which the Mortgagor has filed for bankruptcy.
Non-Permitted Transferee: As defined in Section 8.11(e).
Nonrecoverable P&I Advance: Any P&I Advance previously made or
proposed to be made in respect of a Mortgage Loan or REO Property that, in the
good faith business judgment of the applicable Servicer, the Master Servicer or
any successor Master Servicer including the Trustee, will not or, in the case of
a proposed P&I Advance, would not be ultimately recoverable from related late
payments, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds on
such Mortgage Loan or REO Property as provided herein.
Nonrecoverable Servicing Advance: Any Servicing Advances previously
made or proposed to be made in respect of a Mortgage Loan or REO Property,
which, in the good faith business judgment of the applicable Servicer, the
Master Servicer or any successor Master Servicer including the Trustee, will not
or, in the case of a proposed Servicing Advance, would not, be ultimately
recoverable from related Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds or otherwise.
Non-Rule 144A Investment Letter: As defined in Section 5.02(b).
Notice of Final Distribution: The notice to be provided pursuant to
Section 9.02 to the effect that final distribution on any of the Certificates
shall be made only upon presentation and surrender thereof.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate signed by an officer of any
Servicer or the Master Servicer, as applicable, with responsibility for the
servicing of the Mortgage Loans required to be serviced by such Servicer and
listed on a list delivered to the Trustee and Securities Administrator pursuant
to this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be
in-house counsel for a Servicer or a Subservicer, reasonably acceptable to the
Trustee and/or the Securities Administrator; provided, that any Opinion of
Counsel relating to (a) qualification of any Trust REMIC as a REMIC or (b)
compliance with the REMIC Provisions, must (unless otherwise stated in such
Opinion of Counsel) be an opinion of counsel who (i) is in fact independent of
such Servicer or the Master Servicer of the Mortgage Loans, (ii) does not have
any material direct or indirect financial interest in such Servicer or the
Master Servicer of the Mortgage Loans or in an Affiliate of such Servicer and
(iii) is not connected with such Servicer or the Master Servicer of the Mortgage
Loans as an officer, employee, director or person performing similar functions.
Optional Termination Date: The Distribution Date on which the
aggregate Stated Principal Balance of the Mortgage Loans, as of the last day of
the related Due Period, is equal to (i) with respect to Avelo, 10% or less of
the Cut-off Date Pool Principal Balance or (ii) with respect to Xxxxxx, 5% or
less of the Cut-off Date Pool Principal Balance.
Original Loan Sellers: With respect to each Aames Mortgage Loan,
Aames, with respect to each Fremont Mortgage Loan, Fremont, with respect to each
Impac Mortgage Loan, Impac, with respect to each Meritage Mortgage Loan,
Meritage, with respect to each Acoustic Mortgage Loan, Acoustic and with respect
to each Conduit Mortgage Loan, the Person who sold such Conduit Mortgage Loan to
the Sponsor.
Original Purchase Date: With respect to any Mortgage Loan, the date
on which the applicable Original Loan Seller sold such Mortgage Loan to the
Sponsor pursuant to the applicable Purchase Agreement.
OTS: Office of Thrift Supervision, and any successor thereto.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(i) Certificates theretofore cancelled by the Securities
Administrator or delivered to the Securities Administrator for cancellation; and
(ii) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Securities Administrator
pursuant to this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with
a Stated Principal Balance greater than zero which was not the subject of a
Principal Prepayment in Full prior to such Due Date and which did not become a
Liquidated Mortgage Loan prior to such Due Date.
Overcollateralized Amount: As of any Distribution Date, the excess,
if any, of (a) the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date over (b) the aggregate of the Class Certificate Balances
of the LIBOR Certificates and the Residual Certificates as of such Distribution
Date (after giving effect to the payment of the Principal Remittance Amount on
such Certificates on such Distribution Date).
Overcollateralization Deficiency: With respect to any Distribution
Date, the excess, if any, of (a) the Specified Overcollateralized Amount
applicable to such Distribution Date over (b) the Overcollateralized Amount
applicable to such Distribution Date.
Overcollateralization Floor: With respect to any Distribution Date,
0.50% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date.
Overcollateralization Reduction Amount: With respect to any
Distribution Date, an amount equal to the lesser of (a) the Excess
Overcollateralized Amount and (b) the Net Monthly Excess Cash Flow.
Ownership Interest: As to any Residual Certificate, any ownership
interest in such Certificate including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial.
P&I Advance: As to any Mortgage Loan or REO Property, any advance
made by the applicable Servicer in respect of any Remittance Date representing
the aggregate of all payments of principal and interest, net of the Servicing
Fee, that were due during the related Due Period on the Mortgage Loans and that
were delinquent on the related Remittance Date, plus certain amounts
representing assumed payments not covered by any current net income on the
Mortgaged Properties acquired by foreclosure or deed in lieu of foreclosure as
determined pursuant to Section 4.01(a).
Pass-Through Margin: Except as set forth in the following sentence,
with respect to each Class of LIBOR Certificates, the following percentages:
Class A-1 Certificates, 0.150%; Class A-2A Certificates, 0.050%; Class A-2B
Certificates, 0.100%; Class A-2C Certificates, 0.160%; Class A-2D Certificates,
0.250%; Class M-1 Certificates, 0.280%; Class M-2 Certificates, 0.300%; Class
M-3 Certificates, 0.340%; Class M-4 Certificates, 0.350%; Class M-5
Certificates, 0.380%; Class M-6 Certificates, 0.470%; Class M-7 Certificates,
0.880%; Class M-8 Certificates, 1.100%; Class M-9 Certificates, 1.870%; Class
B-1 Certificates, 2.500%; and Class B-2 Certificates, 2.500%. On the first
possible Optional Termination Date, the Pass-Through Margins shall increase to:
Class A-1 Certificates, 0.300%; Class A-2A Certificates, 0.100%; Class A-2B
Certificates, 0.200%; Class A-2C Certificates, 0.320%; Class A-2D Certificates,
0.500%; Class M-1 Certificates, 0.420%; Class M-2 Certificates, 0.450%; Class
M-3 Certificates, 0.510%; Class M-4 Certificates, 0.525%; Class M-5
Certificates, 0.570%; Class M-6 Certificates, 0.705%; Class M-7 Certificates,
1.320%; Class M-8 Certificates, 1.650%; Class M-9 Certificates, 2.805%; Class
B-1 Certificates, 3.750%; and Class B-2 Certificates, 3.750%.
Pass-Through Rate: For each Class of Regular Certificates, each
Pooling-Tier REMIC-1 Regular Interest, each Pooling-Tier REMIC-2 Regular
Interest, each Lower-Tier Regular Interest, each Upper-Tier Regular Interest,
and each Class X REMIC Regular Interest, the per annum rate set forth or
calculated in the manner described in the Preliminary Statement.
PCAOB: The Public Company Accounting Oversight Board.
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
such percentage interest being set forth on the face thereof or equal to the
percentage obtained by dividing the Denomination of such Certificate by the
aggregate of the Denominations of all Certificates of the same Class.
Periodic Mortgage Interest Rate Cap: With respect to each Adjustable
Rate Mortgage Loan, the provision of each Mortgage Note which provides for an
absolute maximum amount by which the Mortgage Interest Rate therein may increase
or decrease on an Adjustment Date above or below the Mortgage Interest Rate
previously in effect. The Periodic Mortgage Interest Rate Cap for each
Adjustable Rate Mortgage Loan is the rate set forth on the Mortgage Loan
Schedule.
Periodic Mortgage Interest Rate Floor: With respect to each
Adjustable Rate Mortgage Loan, the provision of each Mortgage Note which
provides for an absolute minimum amount by which the Mortgage Interest Rate
therein may increase or decrease on an Adjustment Date above or below the
Mortgage Interest Rate previously in effect. The Periodic Mortgage Interest Rate
Floor for each Adjustable Rate Mortgage Loan is the rate set forth on the
Mortgage Loan Schedule.
Permitted Investments: Any one or more of the following obligations
or securities acquired at a purchase price of not greater than par, regardless
of whether issued by any Servicer, the Trustee, the Securities Administrator or
any of their respective Affiliates:
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any
agency or instrumentality thereof, provided such obligations are backed by
the full faith and credit of the United States;
(ii) demand and time deposits in, certificates of deposit of, or
bankers' acceptances (which shall each have an original maturity of not
more than 90 days and, in the case of bankers' acceptances, shall in no
event have an original maturity of more than 365 days or a remaining
maturity of more than 30 days) denominated in United States dollars and
issued by any Depository Institution and rated "P-1" by Xxxxx'x, "A-1+" by
Standard & Poor's and "F1+" by Fitch (in each case, to the extent they are
designated as Rating Agencies in the Preliminary Statement);
(iii) repurchase obligations with respect to any security described
in clause (i) above entered into with a Depository Institution (acting as
principal);
(iv) securities bearing interest or sold at a discount that are
issued by any corporation incorporated under the laws of the United States
of America or any state thereof and that are rated by each Rating Agency
that rates such securities in its highest long-term unsecured rating
categories at the time of such investment or contractual commitment
providing for such investment;
(v) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a
specified date not more than 30 days after the date of acquisition
thereof) that is rated by each Rating Agency that rates such securities in
its highest short-term unsecured debt rating available at the time of such
investment;
(vi) units of money market funds, including money market funds
advised by the Depositor or the Securities Administrator or an Affiliate
thereof, that have been rated "Aaa" by Xxxxx'x, "AAAm" or "AAAm-G" by
Standard & Poor's and at least "AA" by Fitch (in each case, to the extent
they are designated as Rating Agencies in the Preliminary Statement and
such funds are so rated by such Rating Agency); and
(vii) if previously confirmed in writing to the Securities
Administrator, any other demand, money market or time deposit, or any
other obligation, security or investment, as may be acceptable to the
Rating Agencies as a permitted investment of funds backing "Aaa" or "AAA"
rated securities;
provided, however, that no instrument described hereunder shall evidence either
the right to receive (a) only interest with respect to the obligations
underlying such instrument or (b) both principal and interest payments derived
from obligations underlying such instrument and the interest and principal
payments with respect to such instrument provide a yield to maturity at par
greater than 120% of the yield to maturity at par of the underlying obligations.
For investments in the Distribution Account (except during the Securities
Administrator Float Period), only the obligations or securities (or instruments
which invest in the obligations or securities) specified in clause (i) above
shall constitute Permitted Investments.
Permitted Transferee: Any Person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, international organization or
any agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income) on any
excess inclusions (as defined in Section 860E(c)(1) of the Code) with respect to
any Residual Certificate, (iv) rural electric and telephone cooperatives
described in Section 1381(a)(2)(C) of the Code, (v) a Person that is not a U.S.
Person or a U.S. Person with respect to whom income from a Residual Certificate
is attributable to a foreign permanent establishment or fixed base (within the
meaning of an applicable income tax treaty) of such Person or any other U.S.
Person, or a U.S. Person treated as a partnership for federal income tax
purposes, any beneficial owner of which (other than through a U.S. corporation)
is not a U.S. Person, (vi) an "electing large partnership" within the meaning of
Section 775 of the Code and (vii) any other Person so designated by the
Depositor based upon an Opinion of Counsel that the Transfer of an Ownership
Interest in a Residual Certificate to such Person may cause any Trust REMIC to
fail to qualify as a REMIC at any time that the Certificates are outstanding.
The terms "United States," "State" and "international organization" shall have
the meanings set forth in Section 7701 of the Code or successor provisions. A
corporation will not be treated as an instrumentality of the United States or of
any State or political subdivision thereof for these purposes if all of its
activities are subject to tax and, with the exception of Freddie Mac, a majority
of its board of directors is not selected by such government unit.
Person: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government, or any agency or political
subdivision thereof.
Physical Certificates: As specified in the Preliminary Statement.
Plan: As defined in Section 5.02(b).
Pool Stated Principal Balance: As to any Distribution Date, the
aggregate of the Stated Principal Balances of the Mortgage Loans for such
Distribution Date that were Outstanding Mortgage Loans on the Due Date in the
related Due Period.
Pooling-Tier REMIC-1: As described in the Preliminary Statement.
Pooling-Tier REMIC-1 Interest Rate: As described in the Preliminary
Statement.
Pooling-Tier REMIC-1 Loan Group I WAC Rate: With respect to the
Group I Mortgage Loans as of any Distribution Date, a per annum rate equal to
(a) the weighted average of the Mortgage Interest Rates for each such Mortgage
Loan (in each case, less than the applicable Expense Fee Rate) then in effect on
the beginning of the related Due Period on such Mortgage Loans, multiplied by
(b) 30 divided by the actual number of days in the related Interest Accrual
Period.
Pooling-Tier REMIC-1 Loan Group II WAC Rate: With respect to the
Group II Mortgage Loans as of any Distribution Date, a per annum rate equal to
(a) the weighted average of the Mortgage Interest Rates for each such Mortgage
Loan (in each case, less than the applicable Expense Fee Rate) then in effect on
the beginning of the related Due Period on such Mortgage Loans, multiplied by
(b) 30 divided by the actual number of days in the related Interest Accrual
Period.
Pooling-Tier REMIC-1 Principal Amount: As described in the
Preliminary Statement.
Pooling-Tier REMIC-1 Regular Interest: As described in the
Preliminary Statement.
Pooling-Tier REMIC-2: As described in the Preliminary Statement.
Pooling-Tier REMIC-2 Interest Rate: As described in the Preliminary
Statement.
Pooling-Tier REMIC-2 IO Interest: Any of the Pooling-Tier REMIC-2
Regular Interests with the designation "IO" in its name.
Pooling-Tier REMIC-2 IO Notional Balance: As described in the
Preliminary Statement.
Pooling-Tier REMIC-2 Principal Amount: As described in the
Preliminary Statement.
Pooling-Tier REMIC-2 Regular Interest: As described in the
Preliminary Statement.
Prepayment Interest Shortfall: With respect to any Distribution
Date, the sum of, for each Mortgage Loan that was, during the related Prepayment
Period, the subject of a Principal Prepayment that was applied by the applicable
Servicer to reduce the outstanding principal balance of such Mortgage Loan on a
date preceding the Due Date in the succeeding Prepayment Period, an amount equal
to the product of (a) the Mortgage Interest Rate net of the Servicing Fee Rate
for such Mortgage Loan, (b) the amount of the Principal Prepayment for such
Mortgage Loan, (c) 1/360 and (d) the number of days commencing on the date on
which such Principal Prepayment was applied and ending on the last day of the
related Prepayment Period.
Prepayment Period: With respect to any Distribution Date, the
calendar month preceding the calendar month in which such Distribution Date
occurs.
Prepayment Premium: Any prepayment premium, penalty or charge
collected by any Servicer with respect to a Mortgage Loan from a Mortgagor in
connection with any voluntary Principal Prepayment pursuant to the terms of the
related Mortgage Note.
Principal Distribution Amount: For any Distribution Date, the sum of
(i) the Basic Principal Distribution Amount for such Distribution Date and (ii)
the Extra Principal Distribution Amount for such Distribution Date.
Principal Prepayment: Any full or partial payment or other recovery
of principal on a Mortgage Loan (including upon liquidation of a Mortgage Loan)
which is received in advance of its scheduled Due Date, excluding any Prepayment
Premium and which is not accompanied by an amount of interest representing
scheduled interest due on any date or dates in any month or months subsequent to
the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
Principal Remittance Amount: With respect to any Distribution Date,
the amount equal to the sum of the following amounts (without duplication) with
respect to the related Due Period: (i) each Scheduled Payment of principal on a
Mortgage Loan due during such Due Period and received by the applicable Servicer
on or prior to the related Determination Date or advanced by the applicable
Servicer for the related Remittance Date, (ii) all Principal Prepayments
received during the related Prepayment Period, (iii) all Liquidation Proceeds,
Condemnation Proceeds and Insurance Proceeds on the Mortgage Loans allocable to
principal actually collected by the applicable Servicer during the related
Prepayment Period, (iv) the portion of the Repurchase Price allocable to
principal with respect to each Deleted Mortgage Loan, the repurchase obligation
for which arose during the related Prepayment Period, that was repurchased
during the period from the prior Distribution Date through the Remittance Date
for the current Distribution Date, (v) the portion of all Substitution
Adjustment Amounts allocable to principal with respect to the substitutions of
Mortgage Loans that occur during the calendar month in which such Distribution
Date occurs, and (vi) the allocable portion of the proceeds received with
respect to the termination of the Trust Fund pursuant to clause (a) of Section
9.01 (to the extent such proceeds relate to principal).
Privacy Laws: Title V of the Xxxxx-Xxxxx-Xxxxxx Act of 1999, as
amended, and all applicable regulations promulgated thereunder.
Private Certificates: As specified in the Preliminary Statement.
Prospectus Supplement: The Prospectus Supplement, dated May 23,
2006, relating to the Offered Certificates.
PTCE 95-60: As defined in Section 5.02(b).
PUD: A planned unit development.
Purchase Agreement: The Aames Purchase Agreement, the Fremont
Purchase Agreement, the Impac Purchase Agreement, the Meritage Purchase
Agreement or the Acoustic Purchase Agreement, as applicable.
Rated Final Distribution Date: For each Class of LIBOR Certificates
the Distribution Date occurring in May 2036.
Rating Agency: Each of the Rating Agencies specified in the
Preliminary Statement. If such organization or a successor is no longer in
existence, "Rating Agency" shall be such nationally recognized statistical
rating organization, or other comparable Person, as is designated by the
Depositor, notice of which designation shall be given to the Trustee and the
Securities Administrator. References herein to a given rating or rating category
of a Rating Agency shall mean such rating category without giving effect to any
modifiers. For purposes of Section 12.05(b), the addresses for notices to each
Rating Agency shall be the address specified therefor in the definition
corresponding to the name of such Rating Agency, or such other address as either
such Rating Agency may hereafter furnish to the Depositor, the Securities
Administrator, the Trustee and the Servicers.
Realized Losses: With respect to any date of determination and any
Liquidated Mortgage Loan, the amount, if any, by which (a) the unpaid principal
balance of such Liquidated Mortgage Loan together with accrued and unpaid
interest thereon exceeds (b) the Liquidation Proceeds with respect thereto net
of the expenses incurred by the applicable Servicer in connection with the
liquidation of such Liquidated Mortgage Loan and net of the amount of
unreimbursed Servicing Advances with respect to such Liquidated Mortgage Loan.
Record Date: With respect to any Distribution Date, the close of
business on the last Business Day of the related Interest Accrual Period;
provided, however, that for any Certificate issued in definitive form, the
Record Date shall be the close of business on the last Business Day of the month
preceding the month in which such applicable Distribution Date occurs.
Reference Bank: As defined in Section 4.04.
Regular Certificates: As specified in the Preliminary Statement.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or
by the staff of the Commission, or as may be provided by the Commission or its
staff from time to time.
Relief Act Interest Shortfall: With respect to any Distribution Date
and any Mortgage Loan, any reduction in the amount of interest collectible on
such Mortgage Loan for the most recently ended Due Period as a result of the
application of the Servicemembers Civil Relief Act, or any similar state or
local statutes.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time as well as provisions of applicable state laws.
Remittance Date: With respect to any Distribution Date, no later
than 1:30 PM New York City Time on the Business Day immediately preceding such
Distribution Date and with respect to Xxxxxx, no later than 1:30 PM New York
City Time on the 14th day of each calendar month or, if such day is not a
Business Day, the next succeeding Business Day.
REO Disposition: The final sale by the applicable Servicer of any
REO Property.
REO Imputed Interest: As to any REO Property, for any period, an
amount equivalent to interest (at the Mortgage Interest Rate net of the
Servicing Fee Rate that would have been applicable to the related Mortgage Loan
had it been outstanding) on the unpaid principal balance of the Mortgage Loan as
of the date of acquisition thereof (as such balance is reduced pursuant to
Section 3.17 by any income from the REO Property treated as a recovery of
principal).
REO Property: A Mortgaged Property acquired by the Trust Fund
through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Mortgage Loan.
Replacement Swap Provider Payment: Any payments that have been
received by the Trust as a result of entering into a replacement interest rate
swap agreement following an Additional Termination Event described in Part
5(n)(iii) of the Schedule to the Interest Rate Swap Agreement.
Reportable Event: As defined in Section 8.12(g).
Reporting Date: The 10th day of each calendar month or the
immediately following Business Day if the 10th is not a Business Day.
Representations and Warranties Agreement: The Representations and
Warranties Agreement, dated as of May 26, 2006, by and between the Depositor and
the Sponsor, a copy of which is attached hereto as Exhibit S.
Repurchase Price: With respect to any Mortgage Loan, (a) repurchased
by the Sponsor, an amount equal to the sum of (i) the unpaid principal balance
of such Mortgage Loan as of the date of repurchase, (ii) interest on such unpaid
principal balance of such Mortgage Loan at the Mortgage Interest Rate from the
last date through which interest has been paid and distributed to the Securities
Administrator to the date of repurchase, (iii) all unreimbursed Servicing
Advances, (iv) all expenses incurred by the applicable Servicer, the Master
Servicer, the Trust or the Trustee, as the case may be, in respect of a breach
or defect, including, without limitation, expenses arising out of any
Servicer's, the Master Servicer's or the Trustee's, as the case may be,
enforcement of the Sponsor's repurchase obligations, to the extent not included
in clause (iii), and (v) any costs and damages incurred by the Trust in
connection with any violation by such Mortgage Loan of any predatory lending law
or abusive lending law, and (b) repurchased by Xxxxx, the "Repurchase Price" as
defined in the Aames Purchase Agreement, repurchased by Fremont, "the
"Repurchase Price" as defined in the Fremont Purchase Agreement, repurchased by
Impac, "the "Repurchase Price" as defined in the Impac Purchase Agreement or
repurchased by Meritage, "the "Repurchase Price" as defined in the Meritage
Purchase Agreement, as applicable.
Request for Release: The Request for Release submitted by the
applicable Servicer to each Custodian substantially in the form of Exhibit L.
Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee, the
Master Servicer, or the Securities Administrator, any vice president, any
assistant vice president, any assistant secretary, any assistant treasurer, any
associate assigned, with respect to the Trustee, to the Global Securities and
Trust Services Group (or successor group) or any other officer of the Trustee,
the Master Servicer or the Securities Administrator customarily performing
functions similar to those performed by any of the above designated officers who
at such time shall be officers to whom, with respect to a particular matter,
such matter is referred because of such officer's knowledge of and familiarity
with the particular subject and who shall have direct responsibility for the
administration of this Agreement.
Rule 144A Letter: As defined in Section 5.02(b).
Sarbanes Certification: As defined in Section 8.12(c).
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan
due on any Due Date allocable to principal and/or interest on such Mortgage Loan
which, unless otherwise specified herein, shall give effect to any related Debt
Service Reduction and any Deficient Valuation that affects the amount of the
monthly payment due on such Mortgage Loan.
Second Lien Mortgage Loan: A Mortgage Loan secured by a second lien
Mortgage on the related Mortgaged Property.
Securities Act: The Securities Act of 1933, as amended.
Securities Administrator: Xxxxx Fargo, and its successors in
interest, if any, and, if a successor securities administrator is appointed
hereunder, such successor.
Securities Administrator Float Period: With respect to the
Distribution Date and the related amounts in the Distribution Account, the
period commencing on the Business Day immediately preceding such Distribution
Date and ending on such Distribution Date.
Senior Enhancement Percentage: With respect to any Distribution
Date, the percentage obtained by dividing (x) the sum of (i) the aggregate Class
Certificate Balance of the Subordinated Certificates and (ii) the
Overcollateralized Amount (in each case after taking into account the
distribution of the Principal Distribution Amount and any principal payments on
those Classes of Certificates from the Supplemental Interest Trust on that
Distribution Date) by (y) the aggregate Stated Principal Balance of the Mortgage
Loans for such Distribution Date.
Senior Specified Enhancement Percentage: As of any date of
determination, 49.70%.
Servicer: Xxxxxx, SPS, Avelo or Fremont (solely with respect to the
Fremont Mortgage Loans, and only until the Servicing Transfer Date), as
applicable, and if a successor servicer to any is appointed hereunder, such
successor. When the term "Servicer" is used in this Agreement in connection with
the administration of servicing obligations with respect to any Mortgage Loan,
Mortgaged Property, REO Property or Mortgage File, "Servicer" shall mean the
Person identified as the Servicer of such Mortgage Loan on the Mortgage Loan
Schedule.
Servicer Remittance Report: As defined in Section 4.03(d).
Servicer's Assignee: As defined in Section 12.07.
Servicing Advances: The reasonable "out-of-pocket" costs and
expenses (including legal fees) incurred by the applicable Servicer in the
performance of its servicing obligations in connection with a default,
delinquency or other unanticipated event, including, but not limited to, the
cost of (i) the preservation, restoration, inspection and protection of a
Mortgaged Property, (ii) any enforcement or judicial proceedings, including
foreclosures and litigation, in respect of a particular Mortgage Loan, (iii) the
management (including reasonable fees in connection therewith) and liquidation
of any REO Property and (iv) the performance of its obligations under Sections
3.01, 3.09, 3.13 and 3.15. None of the Servicers shall be required to make any
Nonrecoverable Servicing Advances.
Servicing Criteria: The "servicing criteria" set forth in Item
1122(d) of Regulation AB, which as of the Closing Date are listed on Exhibit T
hereto.
Servicing Fee: With respect to each Servicer, each Mortgage Loan
serviced by such Servicer and for any Distribution Date, an amount equal to the
product of (i) one-twelfth of the Servicing Fee Rate and (ii) the Stated
Principal Balance of such Mortgage Loan as of the first day of the calendar
month preceding the month in which such Distribution Date occurs. Such fee shall
be payable monthly. The Servicing Fee is payable solely from the interest
portion (including recoveries with respect to interest from Liquidation
Proceeds, Insurance Proceeds, Condemnation Proceeds and proceeds received with
respect to REO Properties, to the extent permitted by Section 3.11) of such
Scheduled Payment collected by such Servicer or as otherwise provided under
Section 3.11.
Servicing Fee Rate: With respect to each Mortgage Loan, 0.50% per
annum.
Servicing File: With respect to each Mortgage Loan, the file
retained by the applicable Servicer consisting of originals or copies of all
documents in the Mortgage File which are not delivered to the applicable
Custodian in the Custodial File and copies of the Mortgage Loan Documents set
forth in Exhibit M hereto.
Servicing Function Participant: As defined in Section 3.23(a).
Servicing Officer: Any officer of any Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and facsimile signature appear on a list of servicing officers furnished to
the Master Servicer and the Trustee by such Servicer on the Closing Date
pursuant to this Agreement, as such list may from time to time be amended.
Servicing Rights: Any and all of the following: (a) all rights and
obligations to service the Mortgage Loans; (b) any compensation for servicing
the Mortgage Loans; (c) any late fees, penalties or similar payments with
respect to the Mortgage Loans (other than prepayment penalties); (d) all
agreements or documents creating, defining or evidencing any such servicing
rights to the extent they relate to such servicing rights; (e) any interest on
Escrow Accounts allowed by law or other similar payments with respect to the
Mortgage Loans and any amounts actually collected with respect thereto; (f) all
accounts and other rights to payment related to any of the property described in
this paragraph; (g) the right to possess and use any and all servicing files,
servicing records, data tapes, computer records, or other information pertaining
to the Mortgage Loans to the extent relating to the past, present or prospective
servicing of the Mortgage Loans; and (h) all rights, powers and privileges
incident to any of the foregoing.
Servicing Rights Pledgee: One or more lenders, selected by Xxxxxx,
to which Xxxxxx may pledge and assign some or all of its right, title and
interest in, to and under this Agreement (other than rights with respect to P&I
Advances and Servicing Advances herein) pursuant to and as provided in Section
6.06, including without limitation JPMorgan Chase Bank, National Association as
the representative of certain lenders.
Servicing Transfer Costs: All reasonable out-of-pocket costs and
expenses incurred by the Master Servicer or Trustee in connection with the
transfer of servicing from a terminated Servicer, including, without limitation,
any such costs or expenses associated with the complete transfer of all
servicing data and the completion, correction or manipulation of such servicing
data as may be required by the Master Servicer to correct any errors or
insufficiencies in the servicing data or otherwise to enable the Master Servicer
(or any successor Servicer appointed pursuant to Section 7.02) to service the
Mortgage Loans properly and effectively.
Servicing Transfer Date: With respect to each applicable Mortgage
Loan, the date, previously identified in writing to the Securities Administrator
and the related Servicer by the Depositor or its designee, on which servicing of
the applicable Mortgage Loans was transferred to related Servicer.
Similar Law: As defined in Section 5.02(b).
60+ Day Delinquent Mortgage Loan: Each Mortgage Loan with respect to
which any portion of a Scheduled Payment is, as of the last day of the prior Due
Period, two months or more past due (without giving effect to any grace period),
each Mortgage Loan in foreclosure, all REO Property and each Mortgage Loan for
which the Mortgagor has filed for bankruptcy.
Specified Overcollateralized Amount: Prior to the Stepdown Date, an
amount equal to 2.90% of the Cut-off Date Pool Principal Balance. On and after
the Stepdown Date, an amount equal to 5.80% of the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date, subject, until the
Class Certificate Balance of each Class of LIBOR Certificates has been reduced
to zero, to a minimum amount equal to the Overcollateralization Floor; provided,
however, that if, on any Distribution Date, a Trigger Event exists, the
Specified Overcollateralized Amount shall not be reduced to the applicable
percentage of the then current aggregate Stated Principal Balance of the
Mortgage Loans until the Distribution Date on which a Trigger Event no longer
exists. When the Class Certificate Balance of each Class of LIBOR Certificates
has been reduced to zero, the Specified Overcollateralized Amount will
thereafter equal zero.
Sponsor: Xxxxxxx Xxxxx Mortgage Company, a New York limited
partnership, and its successors in interest, as purchaser of the Mortgage Loans
under each of the Purchase Agreements.
SPS: Select Portfolio Servicing, Inc., a Utah corporation, and its
successors in interest.
SPV: As defined in Section 12.07.
Standard & Poor's: Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc., and its successors in interest. If Standard &
Poor's is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 12.05(b) the address for notices to Standard & Poor's shall
be Standard & Poor's, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Residential Mortgage Surveillance Group - GSAMP Trust 2006-HE3, or such other
address as Standard & Poor's may hereafter furnish to the Depositor, the
Securities Administrator, the Servicers, each Custodian and the Trustee.
Standard & Poor's Glossary: Version 5.6(b) of the Standard & Poor's
LEVELS(R) Glossary.
Start-up Day: As defined in Section 2.05.
Stated Principal Balance: As to each Mortgage Loan and as of any
date of determination, (i) the principal balance of the Mortgage Loan at the
Cut-off Date after giving effect to payments of principal due on or before such
date (whether or not received), minus (ii) all amounts previously remitted to
the Securities Administrator with respect to the related Mortgage Loan
representing payments or recoveries of principal including advances in respect
of Scheduled Payments of principal. For purposes of any Distribution Date, the
Stated Principal Balance of any Mortgage Loan will give effect to any Scheduled
Payments of principal received by the related Servicer on or prior to the
related Determination Date or advanced by the related Servicer for the related
Remittance Date and any unscheduled principal payments and other unscheduled
principal collections received during the related Prepayment Period, and the
Stated Principal Balance of any Mortgage Loan that has prepaid in full or has
become a Liquidated Mortgage Loan during the related Prepayment Period shall be
zero.
Stepdown Date: The earlier to occur of (a) the date on which the
aggregate Class Certificate Balances of the Class A Certificates have been
reduced to zero, and (b) the later to occur of (i) the Distribution Date in June
2009, and (ii) the first Distribution Date on which the Senior Enhancement
Percentage is greater than or equal to the Senior Specified Enhancement
Percentage.
Subcontractor: Any third-party or Affiliated vendor, subcontractor
or other Person utilized by a Servicer, a Subservicer, the Trustee or any
Custodian, as applicable, that is not responsible for the overall servicing (as
"servicing" is commonly understood by participants in the mortgage-backed
securities market) of Mortgage Loans but performs one or more discrete functions
identified in Item 1122(d) of Regulation AB with respect to Mortgage Loans.
Subordinated Certificates: As specified in the Preliminary
Statement.
Subsequent Recoveries: Amounts received with respect to any
Liquidated Mortgage Loan after it has become a Liquidated Mortgage Loan.
Subservicer: Any Person that services Mortgage Loans on behalf of a
Servicer or any Subservicer and is responsible for the performance (whether
directly or through Subservicers or Subcontractors) of a substantial portion of
the material servicing functions required to be performed by a Servicer under
this Agreement, with respect to some or all of the Mortgage Loans, that are
identified in Item 1122(d) of Regulation AB.
Subservicing Account: As defined in Section 3.08.
Subservicing Agreements: As defined in Section 3.02(a).
Substitute Mortgage Loan: A Mortgage Loan eligible to be substituted
for a Deleted Mortgage Loan pursuant to the terms of the Aames Assignment
Agreement, the Fremont Assignment Agreement, the Impac Assignment Agreement or
the Representations and Warranties Agreement, as applicable.
Substitution Adjustment Amount: Any amount required to be paid in
connection with a Substitute Mortgage Loan pursuant to the Aames Assignment
Agreement, the Fremont Assignment Agreement, the Impac Assignment Agreement or
the Representations and Warranties Agreement, as applicable.
Supplemental Interest Trust: The corpus of a trust created pursuant
to Section 4.06 of this Agreement, consisting of the Interest Rate Swap
Agreement, the Class IO Interest and the right to receive Class IO Shortfalls,
subject to the obligation to pay amounts specified in Section 4.06.
Swap LIBOR: With respect to any Distribution Date (and the related
Interest Accrual Period), the product of (i) USD-LIBOR-BBA (as used in the
Interest Rate Swap Agreement), (ii) two, and (iii) the quotient of (a) the
actual number of days in the Interest Accrual Period for the LIBOR Certificates
divided by (b) 30.
Swap Provider: Xxxxxxx Xxxxx Mitsui Marine Derivative Products,
L.P., a Delaware limited partnership, and its successors in interest, and any
successor swap provider under any replacement Interest Rate Swap Agreement.
Swap Termination Payment: Any payment payable by the Trust or the
Swap Provider upon termination of the Interest Rate Swap Agreement as a result
of an Event of Default (as defined in the Interest Rate Swap Agreement) or a
Termination Event (as defined in the Interest Rate Swap Agreement).
Tax Matters Person: The Holder of the (i) Class RC, (ii) Class R and
(iii) Class RX Certificates designated as "tax matters person" of (i)
Pooling-Tier REMIC-1, (ii) Pooling-Tier REMIC-2, the Lower-Tier REMIC and the
Upper-Tier REMIC, and (iii) the Class X REMIC respectively, in the manner
provided under Treasury Regulations Section 1.860F-4(d) and Treasury Regulations
Section 301.6231(a)(7)-1.
Tax Service Contract: As defined in Section 3.09(a).
Telerate Page 3750: The display page currently so designated on the
Bridge Telerate Service (or such other page as may replace that page on that
service for displaying comparable rates or prices).
Termination Price: As defined in Section 9.01.
30 Day Delinquency: The failure of the Mortgagor to make any
Scheduled Payment due under the Mortgage Note on a Due Date, which failure
continues unremedied for a period of one month after the following Due Date.
Total Monthly Excess Spread: As to any Distribution Date, an amount
equal to the excess if any, of (i) the interest on the Mortgage Loans received
by the Servicers on or prior to the related Determination Date or advanced by
the Servicers for the related Remittance Date (net of Expense Fees) and plus any
Net Swap Receipts and less any Net Swap Payments and Swap Termination Payments,
other than Defaulted Swap Termination Payments, for such Distribution Date, over
(ii) the sum of the interest payable to the LIBOR Certificates on such
Distribution Date pursuant to Section 4.02(a)(i), provided however that Net Swap
Receipts shall be included in Total Monthly Excess Spread (and correspondingly
any Extra Principal Distribution Amount) only to the extent of current or prior
Realized Losses not previously reimbursed.
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Transfer Affidavit: As defined in Section 5.02(c).
Transferor Certificate: As defined in Section 5.02(b).
Trigger Event: With respect to any Distribution Date, a Trigger
Event exists if (i) the quotient (expressed as a percentage) of (1) the rolling
three month average of the aggregate unpaid principal balance of 60+ Day
Delinquent Mortgage Loans, divided by (2) the aggregate unpaid principal balance
of the Mortgage Loans as of the last day of the related Due Period, equals or
exceeds 32.20% of the Senior Enhancement Percentage as of the last day of the
prior Due Period or (ii) the quotient (expressed as a percentage) of (x) the
aggregate amount of Realized Losses incurred since the Cut-off Date through the
last day of the related Prepayment Period divided by (y) the Cut-off Date Pool
Principal Balance, exceeds the applicable percentages set forth below with
respect to such Distribution Date:
Distribution Date Occurring In Cumulative Realized Loss Percentage
------------------------------ -----------------------------------
June 2008 through May 2009 1.65% for the first month, plus an
additional 1/12th of 2.10% for each month
thereafter
June 2009 through May 2010 3.75% for the first month, plus an
additional 1/12th of 2.10% for each month
thereafter
June 2010 through May 2011 5.85% for the first month, plus an
additional 1/12th of 1.65% for each month
thereafter
June 2011 through May 2012 7.50% for the first month, plus an
additional 1/12th of 0.50% for each month
thereafter
June 2012 and thereafter 8.00%
Trust: The express trust created hereunder in Section 2.01(c).
Trust Fund: The corpus of the trust created hereunder consisting of
(i) the Mortgage Loans and all interest and principal with respect thereto
received on or after the related Cut-off Date, other than such amounts which
were due on the Mortgage Loans on or before the related Cut-off Date; (ii) the
Collection Account, the Excess Reserve Fund Account, the Distribution Account
and all amounts deposited therein pursuant to the applicable provisions of this
Agreement; (iii) property that secured a Mortgage Loan and has been acquired by
foreclosure, deed-in-lieu of foreclosure or otherwise; (iv) the Interest Rate
Swap Agreement; (v) the Trust's rights under the Representations and Warranties
Agreement or the related Assignment Agreement; (vi) the Supplemental Interest
Trust; and (vii) all proceeds of the conversion, voluntary or involuntary, of
any of the foregoing.
Trust REMIC: Any of Pooling-Tier REMIC-1, Pooling-Tier REMIC-2, the
Lower-Tier REMIC, the Upper-Tier REMIC or the Class X REMIC, as applicable.
Trustee: LaSalle Bank National Association, a national banking
association, and its successors in interest and, if a successor trustee is
appointed hereunder, such successor.
Underwriter's Exemption: Any exemption listed in footnote 1 of, and
amended by, Prohibited Transaction Exemption 2002-41, 67 Fed. Reg. 54487 (2002),
or any successor exemption.
Underwriting Guidelines: The underwriting guidelines attached to the
applicable Purchase Agreement.
Unpaid Interest Amount: As of any Distribution Date and any Class of
Certificates, the sum of (a) the portion of the Accrued Certificate Interest
Distribution Amount from prior Distribution Dates remaining unpaid immediately
prior to the current Distribution Date and (b) interest on the amount in clause
(a) above at the applicable Pass-Through Rate (to the extent permitted by
applicable law).
Upper-Tier Carry Forward Amount: With respect to each Class of LIBOR
Certificates, as of any Distribution Date, the sum of (A) if on such
Distribution Date the Upper-Tier Interest Rate for the Class of Corresponding
Upper-Tier REMIC Regular Interest is based upon the Upper-Tier REMIC Loan Group
I Rate or Upper-Tier REMIC Loan Group II Rate, as and if applicable, or the
Upper-Tier REMIC WAC Rate, the excess, if any, of (i) the amount of interest
such Class of Upper-Tier Regular Interest would otherwise be entitled to receive
on such Distribution Date had such Upper-Tier REMIC Regular Interest not been
subject to the Upper-Tier REMIC Loan Group I Rate or Upper-Tier REMIC Loan Group
II Rate, as and if applicable, or the Upper-Tier REMIC WAC Rate, over (ii) the
amount of interest payable on such Class of Certificates on such Distribution
Date taking into account the Upper-Tier REMIC Loan Group I Rate or Upper-Tier
REMIC Loan Group II Rate, as and if applicable, or the Upper-Tier REMIC WAC Rate
and (B) the Upper-Tier Carry Forward Amount for such Class of Certificates for
all previous Distribution Dates not previously paid, together with interest
thereon at a rate equal to the applicable Upper-Tier Interest Rate for such
Class of Certificates for such Distribution Date, without giving effect to the
Upper-Tier REMIC Loan Group I Rate or Upper-Tier REMIC Loan Group II Rate, as
and if applicable, or the Upper-Tier REMIC WAC Rate.
Upper-Tier Interest Rate: As described in the Preliminary Statement.
Upper-Tier Regular Interest: As described in the Preliminary
Statement.
Upper-Tier REMIC: As described in the Preliminary Statement.
Upper-Tier REMIC Loan Group I Rate: As described in the Preliminary
Statement.
Upper-Tier REMIC Loan Group II Rate: As described in the Preliminary
Statement.
Upper-Tier REMIC WAC Rate: For any Distribution Date, the weighted
average of the Lower-Tier Interest Rates on the Lower-Tier Regular Interests
(other than the Class LT-IO and Class LT-3 Interests), as of the first day of
the related Interest Accrual Period, weighted on the basis of the Lower-Tier
Principal Amounts of such Lower-Tier Regular Interests as of the first day of
the related Interest Accrual Period.
U.S. Bank National Association: U.S. Bank National Association, a
national banking association, and its successors in interest.
U.S. Person: (i) A citizen or resident of the United States; (ii) a
corporation (or entity treated as a corporation for tax purposes) created or
organized in the United States or under the laws of the United States or of any
State thereof, including, for this purpose, the District of Columbia; (iii) a
partnership (or entity treated as a partnership for tax purposes) organized in
the United States or under the laws of the United States or of any state
thereof, including, for this purpose, the District of Columbia (unless provided
otherwise by future Treasury regulations); (iv) an estate whose income is
includible in gross income for United States income tax purposes regardless of
its source; or (v) a trust, if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more U.S. Persons have authority to control all substantial decisions of the
trust. Notwithstanding the last clause of the preceding sentence, to the extent
provided in Treasury regulations, certain trusts in existence on August 20,
1996, and treated as U.S. Persons prior to such date, may elect to continue to
be U.S. Persons.
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to the Class X
Certificates, if any (such Voting Rights to be allocated among the holders of
Certificates of each such Class in accordance with their respective Percentage
Interests), (b) 1% of all Voting Rights shall be allocated to the Class P
Certificates, if any, and (c) the remaining Voting Rights shall be allocated
among Holders of the remaining Classes of Certificates in proportion to the
Certificate Balances of their respective Certificates on such date.
WAC Cap: With respect to the Mortgage Loans as of any Distribution
Date, a per annum rate equal to the product of (i) 30 divided by the actual
number of days in the applicable Interest Accrual Period and (ii) the sum of (A)
the weighted average of the Adjusted Net Mortgage Interest Rates then in effect
at the beginning of the related Due Period on the Mortgage Loans, and (B) Net
Swap Receipts, if any, for that Distribution Date less Net Swap Payments, if
any, for that Distribution Date divided by the Stated Principal Balance of the
Mortgage Loans at the beginning of the related Due Period, multiplied by 12.
Xxxxx Fargo: Xxxxx Fargo Bank, N.A., a national banking association,
and its successors in interest.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans. (a) The Depositor,
concurrently with the execution and delivery hereof, hereby sells, transfers,
assigns, sets over and otherwise conveys to the Trustee for the benefit of the
Certificateholders, without recourse, all the right, title and interest of the
Depositor in and to the Trust Fund, and the Trustee, on behalf of the Trust,
hereby accepts the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage
Loan, the Depositor has delivered or caused to be delivered to the applicable
Custodian for the benefit of the Certificateholders the following documents or
instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note (except for up to 0.01% of the
Mortgage Notes for which there is a lost note affidavit and the copy of
the Mortgage Note), with all applicable riders, bearing all intervening
endorsements showing a complete chain of endorsement from the originator
to the last endorsee, endorsed "Pay to the order of _____________, without
recourse" and signed in the name of the last endorsee. To the extent that
there is no room on the face of any Mortgage Note for an endorsement, the
endorsement may be contained on an allonge, unless state law does not so
allow and the Trustee (and applicable Custodian) is advised by the
applicable Original Loan Seller that state law does not so allow. If the
Mortgage Loan was acquired by the applicable Original Loan Seller in a
merger, the endorsement must be by "[last endorsee], successor by merger
to [name of predecessor]". If the Mortgage Loan was acquired or originated
by the last endorsee while doing business under another name, the
endorsement must be by "[last endorsee], formerly known as [previous
name]";
(ii) the original of any guarantee executed in connection with the
mortgage note, if provided;
(iii) the original Mortgage, with all applicable riders, with
evidence of recording thereon. If in connection with any Mortgage Loan,
the applicable Original Loan Seller, cannot deliver or cause to be
delivered the original Mortgage with evidence of recording thereon on or
prior to the Closing Date because of a delay caused by the public
recording office where such Mortgage has been delivered for recordation or
because such Mortgage has been lost or because such public recording
office retains the original recorded Mortgage, the applicable Original
Loan Seller, (to the extent that it has not previously delivered the same
to the Sponsor or the applicable Custodian) shall deliver or cause to be
delivered to the applicable Custodian, a photocopy of such Mortgage,
together with (i) in the case of a delay caused by the public recording
office, an officer's certificate of (or certified by) the applicable
Original Loan Seller (or certified by the title company, escrow agent, or
closing attorney) stating that such Mortgage has been dispatched to the
appropriate public recording office for recordation and that the original
recorded Mortgage or a copy of such Mortgage certified by such public
recording office to be a true and complete copy of the original recorded
Mortgage will be promptly delivered to applicable Custodian upon receipt
thereof by the applicable Original Loan Seller; or (ii) in the case of a
Mortgage where a public recording office retains the original recorded
Mortgage or in the case where a Mortgage is lost after recordation in a
public recording office, a copy of such Mortgage certified by such public
recording office to be a true and complete copy of the original recorded
Mortgage;
(iv) the originals of all assumption, modification, consolidation or
extension agreements, if any, with evidence of recording thereon or a
certified true copy of such agreement submitted for recording;
(v) except with respect to each MERS Designated Mortgage Loan, the
original Assignment of Mortgage for each Mortgage Loan endorsed in blank
and in recordable form;
(vi) the originals of all intervening Assignments of Mortgage (if
any) evidencing a complete chain of assignment from the applicable
originator (or MERS with respect to each MERS Designated Mortgage Loan) to
the last endorsee with evidence of recording thereon, or if any such
intervening assignment has not been returned from the applicable recording
office or has been lost or if such public recording office retains the
original recorded Assignments of Mortgage, the applicable Original Loan
Seller (to the extent that it has not previously delivered the same to the
Sponsor or the applicable Custodian) shall deliver or cause to be
delivered to the applicable Custodian, a photocopy of such intervening
assignment, together with (A) in the case of a delay caused by the public
recording office, an officer's certificate of (or certified by) the
applicable Original Loan Seller (or certified by the title company, escrow
agent, or closing attorney) stating that such intervening Assignment of
Mortgage has been dispatched to the appropriate public recording office
for recordation and that such original recorded intervening Assignment of
Mortgage or a copy of such intervening assignment of mortgage certified by
the appropriate public recording office to be a true and complete copy of
the original recorded intervening assignment of mortgage will be promptly
delivered to the applicable Custodian upon receipt thereof by the
applicable Original Loan Seller; or (B) in the case of an intervening
Assignment of Mortgage where a public recording office retains the
original recorded intervening assignment or in the case where an
intervening assignment is lost after recordation in a public recording
office, a copy of such intervening assignment certified by such public
recording office to be a true and complete copy of the original recorded
intervening assignment;
(vii) the original or duplicate of xxxxxx's title policy and all
riders thereto or, any one of an original title binder, an original
preliminary title report or an original title commitment, or a copy
thereof certified by the title company; and
(viii) a security agreement, chattel mortgage or equivalent document
executed in connection with the Mortgage (if provided).
The Depositor shall use reasonable efforts to assist the Trustee in
enforcing the obligations of the Sponsor under the related Assignment Agreement
and the Representations and Warranties Agreement.
Each Mortgage Loan for which a Mortgage Note is missing shall be
evidenced by a lost note affidavit as of the Closing Date. In the event one or
more lost note affidavits are provided to cover multiple missing Mortgage Notes
on the Closing Date, the Depositor shall use reasonable efforts to cause Aames,
Fremont, Meritage, Impac or the Sponsor, as applicable, to deliver to the
applicable Custodian the applicable individual lost note affidavits within ten
(10) Business Days of the Closing Date. If Aames, Fremont, Meritage, Impac or
the Sponsor, as applicable, fails to deliver the required individual lost note
affidavits within the specified period of time, the Trustee, upon receipt of
notification of such failure from the applicable Custodian or exception report
noting such missing document from the applicable Custodian, shall notify Aames,
Fremont, Meritage, Impac or the Sponsor, as applicable, to take such remedial
actions, including, without limitation, (a) the repurchase by the Sponsor of any
Acoustic Mortgage Loans, Impac of any Impac Mortgage Loans, or Aames of any
Aames Mortgage Loans, as applicable, within 30 days of the Closing Date, (b) the
repurchase by Fremont of any Fremont Mortgage Loans or Meritage of any Meritage
Mortgage Loans, as applicable within 60 days of the Closing Date, or (c) the
repurchase by the Sponsor of any Conduit Mortgage Loan within 180 days of the
Closing Date, as applicable.
The Depositor shall use reasonable efforts to cause the Sponsor and
Aames, Fremont, Meritage or Impac, as applicable, to deliver to the applicable
Custodian the applicable recorded document promptly upon receipt from the
respective recording office but in no event later than 180 days from the Closing
Date.
If any Mortgage has been recorded in the name of Mortgage Electronic
Registration System, Inc. ("MERS") or its designee, no Assignment of Mortgage in
favor of the Trustee will be required to be prepared or delivered and instead,
the applicable Servicer shall take all reasonable actions as are necessary at
the expense of the Depositor to cause the Trust to be shown as the owner of the
related Mortgage Loan on the records of MERS for the purpose of the system of
recording transfers of beneficial ownership of mortgages maintained by MERS.
The Depositor shall use reasonable efforts to cause Aames, Fremont,
Meritage, Impac and the Sponsor, as applicable, to forward to the applicable
Custodian additional documents evidencing an assumption, modification,
consolidation or extension of a Mortgage Loan approved by Aames, Fremont,
Meritage, Impac or the Sponsor, as applicable, in accordance with the terms of
the applicable Purchase Agreement. All such Mortgage Loan Documents held by the
applicable Custodian as to each applicable Mortgage Loan shall constitute the
"Custodial File."
On or prior to the Closing Date, the Depositor shall use reasonable
efforts to cause Aames, Fremont, Meritage, Impac and the Sponsor, as applicable,
to deliver to the applicable Custodian Assignments of Mortgages, in blank, for
each Mortgage Loan (except with respect to each MERS Designated Mortgage Loan).
The Depositor shall use reasonable efforts to cause Aames, Fremont, Meritage,
Impac and the Sponsor, as applicable, the Assignments of Mortgage with completed
recording information to be provided to the applicable Servicer in a reasonably
acceptable manner. In the event that any Assignment of Mortgage is not recorded
or is improperly recorded, the applicable Servicer will have no liability
directly resulting from such lack of recordation or such improper recordation
and solely resulting from any failure to receive notices made with regard to
such Assignment of Mortgage, except for any liability incurred by reason of
willful misfeasance, bad faith or negligence by such Servicer in the performance
of its duties hereunder or by reason of reckless disregard of its obligations
and duties hereunder. No later than thirty (30) Business Days following the
later of the Closing Date and the date of receipt by the Depositor of the fully
completed Assignments of Mortgages in recordable form, the Depositor shall
promptly submit or cause to be submitted for recording, at the expense of Aames,
Fremont, Meritage, Impac or the Sponsor, as applicable, pursuant to the
applicable Purchase Agreement, at no expense to the Trust Fund, the Master
Servicer, the Securities Administrator, the applicable Servicer, the applicable
Custodian, the Trustee or the Depositor in the appropriate public office for
real property records, each Assignment of Mortgage referred to in Section
2.01(b)(v). Notwithstanding the foregoing, however, for administrative
convenience and facilitation of servicing and to reduce closing costs, the
Assignments of Mortgage shall not be required to be completed and submitted for
recording with respect to any Mortgage Loan (i) if the Trustee and each Rating
Agency has received an opinion of counsel (which opinion shall not be an expense
of the Trustee, any Servicers or the Trust Fund), satisfactory in form and
substance to the Trustee and each Rating Agency, to the effect that the
recordation of such Assignments of Mortgage in any specific jurisdiction is not
necessary to protect the Trustee's interest in the related Mortgage Note or (ii)
if such Mortgage Loan is a MERS Designated Mortgage Loan. If the Assignment of
Mortgage is to be recorded, the Depositor shall use reasonable efforts to cause
the Sponsor to assign the Mortgage at the Sponsor's expense to "LaSalle Bank
National Association, as trustee under the Pooling and Servicing Agreement dated
as of May 1, 2006, GSAMP Trust 2006-HE3." In the event that any such assignment
is lost or returned unrecorded because of a defect therein with respect to any
Mortgage Loan, and such defect is not cured, the Trustee shall cause the Sponsor
to repurchase such Mortgage Loan pursuant to the related Assignment Agreement or
the Representations and Warranties Agreement, as applicable.
On or prior to the Closing Date, the Depositor shall deliver to the
applicable Custodian, the Trustee, the Master Servicer and the applicable
Servicer a copy of the Data Tape Information in electronic, machine readable
medium in a form mutually acceptable to the Depositor, the applicable Custodian,
the Master Servicer and the Trustee. Within ten (10) Business Days of the
Closing Date, the Depositor shall deliver a copy of the complete Mortgage Loan
Schedule to the each Custodian, the Master Servicer, the Securities
Administrator, the Trustee and each Servicer, and the applicable Custodian shall
promptly, upon receipt of the Mortgage Loan Schedule (or any other mortgage loan
schedules received by the applicable Custodian from the Depositor), inform the
Depositor of receipt thereof.
In the event, with respect to any Mortgage Loan, that such original
or copy of any document submitted for recordation to the appropriate public
recording office is not so delivered to the applicable Custodian within 90 days
(or with respect to the Fremont Mortgage Loans, 180 days) following the
applicable Original Purchase Date, and in the event that the Sponsor, Aames,
Fremont, Meritage, or Impac, as applicable, does not cause such failure to be
cured within 60 days (or with respect to the Aames Mortgage Loans, the Meritage
Mortgage Loans, the Impac Mortgage Loans and the Fremont Mortgage Loans, as
applicable, 30 days) of discovery of receipt of written notification of such
failure from the Depositor, the related Mortgage Loan shall, upon the request of
the Depositor, be repurchased by Aames pursuant to the Aames Assignment
Agreement, Fremont pursuant to the Fremont Assignment Agreement, Impac pursuant
to the Impac Assignment Agreement, Meritage pursuant to the Meritage Assignment
Agreement or the Sponsor pursuant to the Representations and Warranties
Agreement, at the price and in the manner specified in the Representations and
Warranties Agreement. The foregoing repurchase remedy shall not apply in the
event that the Sponsor cannot deliver such original or copy of any document
submitted for recordation to the appropriate public recording office within the
specified period due to a delay caused by the recording office in the applicable
jurisdiction; provided, that Aames, Fremont, Meritage, Impac or the Sponsor
shall instead deliver a recording receipt of such recording office or, if such
recording receipt is not available, an officer's certificate of an officer of
Aames, Fremont, Meritage, Impac or the Sponsor confirming that such document has
been accepted for recording.
Notwithstanding anything to the contrary contained in this Section
2.01, in those instances where the public recording office retains or loses the
original Mortgage or assignment after it has been recorded, the obligations of
the Sponsor shall be deemed to have been satisfied upon delivery by the Sponsor
to the applicable Custodian prior to the Closing Date of a copy of such Mortgage
or assignment, as the case may be, certified (such certification to be an
original thereof) by the public recording office to be a true and complete copy
of the recorded original thereof.
(c) The Depositor does hereby establish, pursuant to the further
provisions of this Agreement and the laws of the State of New York, an express
trust (the "Trust") to be known, for convenience, as "GSAMP Trust 2006-HE3" and
LaSalle Bank National Association is hereby appointed as Trustee in accordance
with the provisions of this Agreement. The Trust's fiscal year is the calendar
year.
(d) The Trust shall have the capacity, power and authority, and the
Trustee on behalf of the Trust is hereby authorized, to accept the sale,
transfer, assignment, set over and conveyance by the Depositor to the Trust of
all the right, title and interest of the Depositor in and to the Trust Fund
(including, without limitation, the Mortgage Loans, the Assignment Agreements,
the Representations and Warranties Agreement and the Interest Rate Swap
Agreement) pursuant to Section 2.01(a). The parties hereby acknowledge and agree
that the execution and delivery of the Interest Rate Swap Agreement by the
Securities Administrator on behalf of the Trust was authorized and is hereby
ratified and confirmed.
(e) It is agreed and understood by the Depositor and the Trustee
that it is the policy and intention of the Trust to acquire only Mortgage Loans
meeting the requirements set forth in this Agreement, including without
limitation, including the requirement that no Mortgage Loan be a High Cost
Mortgage Loan and no Mortgage Loan originated on or after October 1, 2002
through March 6, 2003 be governed by the Georgia Fair Lending Act.
Section 2.02 Acceptance by the Trustee of the Mortgage Loans. The
Trustee, on behalf of the Trust, hereby accepts the Trust Fund and assumes
(solely in its capacity as trustee hereunder) the obligations of the Depositor
under the Representations and Warranties Agreement and the Assignment Agreements
from and after the Closing Date and solely insofar as they relate to the
Mortgage Loans. For avoidance of doubt, the parties acknowledge that all
obligations so assumed are obligations of the Trust and, to the extent such
obligations are payment or monetary obligations, are payable solely from the
Trust Fund, and not of the Trustee in its individual capacity. The applicable
Custodian acknowledges receipt of the documents identified in the Initial
Certification in the form annexed hereto as Exhibit F, subject to any exceptions
listed on the exception report attached thereto, and that the applicable
Custodian, on the Trustee's behalf, holds and will hold such documents and the
other documents delivered to the applicable Custodian pursuant to Section 2.01,
and that the applicable Custodian holds or will hold such other assets as are
included in the Trust Fund, in trust for the exclusive use and benefit of all
present and future Certificateholders. The applicable Custodian acknowledges
that it will maintain possession of the related Mortgage Notes in the State of
Texas or Minnesota, unless otherwise permitted by the Rating Agencies.
Prior to and as a condition to the Closing, the applicable Custodian
shall deliver via facsimile (with original to follow the next Business Day) to
the Depositor, the Trustee, the Master Servicer and the applicable Servicer an
Initial Certification prior to the Closing Date, or as the Depositor agrees to,
on the Closing Date, certifying receipt of a Mortgage Note and Assignment of
Mortgage for each Mortgage Loan with any exceptions noted on the exception
report attached thereto. The applicable Custodian shall not be responsible to
verify the validity, sufficiency or genuineness of any document in any Custodial
File.
On the Closing Date, the applicable Custodian shall ascertain that
all documents required to be reviewed by it are in its possession, and shall
deliver to the Depositor, the Trustee, the Master Servicer and the applicable
Servicer an Initial Certification, in the form annexed hereto as Exhibit F, and
shall deliver to the Depositor, the Trustee, the Master Servicer and such
Servicer a Document Certification and Exception Report, in the form annexed
hereto as Exhibit G, within 90 days (or with respect to any Substitute Mortgage
Loan delivered to the applicable Custodian, within 30 days after the receipt of
the Mortgage File by the applicable Custodian) after the Closing Date to the
effect that, as to each Mortgage Loan listed in the Mortgage Loan Schedule
(other than any Mortgage Loan paid in full or any Mortgage Loan specifically
identified in such certification as an exception and not covered by such
certification): (i) all documents required to be reviewed by it are in its
possession; (ii) such documents have been reviewed by it and appear regular on
their face and relate to such Mortgage Loan; (iii) based on its examination and
only as to the foregoing documents, the information set forth in items (1), (2)
and (13) of the Mortgage Loan Schedule and items (1), (2) and (13) of the Data
Tape Information respecting such Mortgage Loan is correct; and (iv) each
Mortgage Note has been endorsed as provided in Section 2.01 of this Agreement.
The applicable Custodian shall not be responsible to verify the validity,
sufficiency or genuineness of any document in any Custodial File.
The applicable Custodian shall retain possession and custody of each
applicable Custodial File in accordance with and subject to the terms and
conditions set forth herein. The applicable Servicer shall promptly deliver to
the applicable Custodian, upon the execution or receipt thereof, the originals
of such other documents or instruments constituting the Custodial File as come
into the possession of such Servicer from time to time.
The Depositor shall use reasonable efforts to cause Aames, Fremont,
Meritage, Impac or the Sponsor, as applicable, to deliver to the applicable
Servicer copies of all trailing documents required to be included in the
Custodial File at the same time the original or certified copies thereof are
delivered to the applicable Custodian, including but not limited to such
documents as the title insurance policy and any other Mortgage Loan Documents
upon return from the public recording office. The Depositor shall use reasonable
efforts to cause Aames, Fremont, Meritage, Impac or the Sponsor, as applicable,
to deliver such documents, at the Sponsor's, Aames' Fremont's, Impac's or
Meritage's expense, as applicable, to the applicable Servicer and in no event
shall such Servicer be responsible for any expenses relating to such delivery
obligation.
Section 2.03 Representations, Warranties and Covenants of the
Servicers and each Custodian (a) Xxxxxx hereby makes the representations and
warranties set forth in Schedule II hereto to the Depositor, the Master
Servicer, the Securities Administrator and the Trustee as of the Closing Date.
SPS hereby makes the representations and warranties set forth in Schedule III
hereto to the Depositor, the Master Servicer, the Securities Administrator and
the Trustee as of the dates set forth in such Schedule. Avelo hereby makes the
representations and warranties set forth in Schedule IV hereto to the Depositor,
the Master Servicer, the Securities Administrator and the Trustee as of the
dates set forth in such Schedule. X.X. Xxxxxx Trust Company hereby makes the
representations and warranties set forth in Schedule V hereto to the Depositor,
the Master Servicer, the Securities Administrator and the Trustee as of the
Closing Date. U.S. Bank National Association hereby makes the representations
and warranties set forth in Schedule VI hereto to the Depositor, the Master
Servicer, the Securities Administrator and the Trustee as of the Closing Date.
Deutsche Bank hereby makes the representations and warranties set forth in
Schedule VII hereto to the Depositor, the Master Servicer, the Securities
Administrator and the Trustee as of the Closing Date.
(b) It is understood and agreed by each Servicer and each Custodian
that the representations and warranties set forth in this Section 2.03 shall
survive the transfer of the Mortgage Loans by the Depositor to the Trustee, and
shall inure to the benefit of the Depositor, the Servicers and the Trustee
notwithstanding any restrictive or qualified endorsement on any Mortgage Note or
Assignment of Mortgage or the examination or failure to examine any Mortgage
File. Upon discovery by any of the Depositor, the Master Servicer, the
Securities Administrator, the Trustee, each Custodian, or each Servicer of a
breach of any of the foregoing representations and warranties, the party
discovering such breach shall give prompt written notice to the others.
(c) In connection with any repurchase or substitution of a Mortgage
Loan pursuant to this Section 2.03, Section 2.07, Section 3.28 or the related
Assignment Agreement or the Representations and Warranties Agreement, the
applicable Servicer shall, based on information provided by Aames, Fremont,
Impac, Meritage or the Sponsor, as applicable, amend the Mortgage Loan Schedule
for the benefit of the Certificateholders to reflect the removal of such Deleted
Mortgage Loan and the substitution of the Substitute Mortgage Loan or Loans and
such Servicer shall deliver the amended Mortgage Loan Schedule to each
Custodian. The applicable Servicer shall have no liability with respect to the
information provided by the Sponsor related to the Substitute Mortgage Loan.
Upon any such repurchase or any substitution and the deposit to the Collection
Account of any Substitution Adjustment Amount, the applicable Custodian shall
release the Mortgage File held for the benefit of the Certificateholders
relating to such Deleted Mortgage Loan to the Sponsor, the Depositor or the
applicable Original Loan Seller, as applicable, and shall execute and deliver at
the direction of the Sponsor, the Depositor or the applicable Original Loan
Seller, as applicable, such instruments of transfer or assignment prepared by
the Sponsor, the Depositor or the applicable Original Loan Seller, as
applicable, in each case without recourse, as shall be necessary to vest title
in the Sponsor or its designee, the Depositor or the applicable Original Loan
Seller, as applicable, or their respective designees, the Trustee's interest in
any Deleted Mortgage Loan repurchased or substituted for as described above in
this Section 2.03(c).
(d) For any month in which the Sponsor or the applicable Original
Loan Seller, as applicable, substitutes one or more Substitute Mortgage Loans
for one or more Deleted Mortgage Loans, the applicable Servicer will determine
the amount (if any) by which the aggregate unpaid principal balance of all such
Substitute Mortgage Loans serviced by such Servicer as of the date of
substitution is less than the aggregate Stated Principal Balance of all such
Deleted Mortgage Loans (after application of the scheduled principal portion of
the Scheduled Payments due in the Due Period of substitution) serviced by such
Servicer. The Depositor shall use reasonable efforts to cause the Sponsor or the
applicable Original Loan Seller, as applicable, to remit to the applicable
Servicer for deposit into the Collection Account on or before the next
Remittance Date any Substitution Adjustment Amount.
(e) In the event that a Mortgage Loan shall have been repurchased
pursuant to this Agreement, an Assignment Agreement or the Representations and
Warranties Agreement, the Repurchase Price thereof shall be deposited in the
Collection Account by the applicable Servicer pursuant to Section 3.10 on or
before the next Remittance Date and upon such deposit of the Repurchase Price,
and receipt of a Request for Release in the form of Exhibit L hereto, each
Custodian shall release the related Custodial File held for the benefit of the
Certificateholders to such Person as directed by such Servicer, and the Trustee,
upon receipt of a copy of the Request for Release from the Servicer, shall
execute and deliver at such Person's direction such instruments of transfer or
assignment prepared by such Person, in each case without recourse, as shall be
necessary to transfer title from the Trustee. It is understood and agreed that
the obligation under this Agreement of any Person to cure, repurchase or replace
any Mortgage Loan as to which a breach has occurred and is continuing together
with satisfaction of any related indemnification obligations shall constitute
the sole remedy against such Persons respecting such breach available to
Certificateholders, the Depositor, each Servicer, the Master Servicer, the
Securities Administrator, each Custodian or the Trustee on their behalf.
The representations and warranties made pursuant to this Section
2.03 shall survive delivery of the respective Custodial Files to each Custodian
for the benefit of the Certificateholders.
Section 2.04 Execution and Delivery of Certificates. The Trustee
acknowledges the transfer and assignment to it of the Trust Fund and,
concurrently with such transfer and assignment, the Securities Administrator has
executed and delivered to or upon the order of the Depositor, the Certificates
in authorized Denominations evidencing directly or indirectly the entire
ownership of the Trust Fund. The Trustee agrees to hold the Trust Fund and
exercise the rights referred to above for the benefit of all present and future
Holders of the Certificates.
Section 2.05 REMIC Matters. The Preliminary Statement sets forth the
designations for federal income tax purposes of all interests created hereby.
The "Start-up Day" of each Trust REMIC for purposes of the REMIC Provisions
shall be the Closing Date. The "latest possible maturity date" of the regular
interests in each Trust REMIC is the Distribution Date in May 2036, which is the
Distribution Date in the month following the month in which the latest maturity
date of any Mortgage Loan occurs. Amounts distributable to the Class X
Certificates (prior to any reduction for any Basis Risk Payment or Swap
Termination Payment), exclusive of any amounts received from the Swap Provider,
shall be deemed paid from the Upper-Tier REMIC to the Class X REMIC in respect
of the Class UT-X Interest and the Class UT-IO Interest and then from the Class
X REMIC in respect of the Class X Interest and the Class IO Interest to the
Holders of the Class X Certificates prior to distribution of any Basis Risk
Payments to the LIBOR Certificates or Net Swap Payments or Swap Termination
Payments to the Swap Provider.
For federal income tax purposes, any amount distributed on the LIBOR
Certificates on any Distribution Date in excess of the amount distributable on
their Corresponding Class of Upper-Tier Regular Interest on such Distribution
Date shall be treated as having been paid from the Excess Reserve Fund Account
or the Supplemental Interest Trust, as applicable, and any amount distributable
on such Corresponding Class of Upper-Tier Regular Interest on such Distribution
Date in excess of the amount distributable on the Corresponding Class of LIBOR
Certificates on such Distribution Date shall be treated as having been paid to
the Supplemental Interest Trust, all pursuant to and as further provided in
Section 8.13.
Section 2.06 Representations and Warranties of the Depositor. The
Depositor hereby represents, warrants and covenants to the Trustee, the Master
Servicer, the Securities Administrator and each Servicer that as of the date of
this Agreement or as of such date specifically provided herein:
(a) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware;
(b) The Depositor has the corporate power and authority to convey
the Mortgage Loans and to execute, deliver and perform, and to enter into and
consummate the transactions contemplated by, this Agreement;
(c) This Agreement has been duly and validly authorized, executed
and delivered by the Depositor, all requisite corporate action having been
taken, and, assuming the due authorization, execution and delivery hereof by the
other parties hereto, constitutes or will constitute the legal, valid and
binding agreement of the Depositor, enforceable against the Depositor in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights of creditors generally, and by general
equity principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law);
(d) No consent, approval, authorization or order of or registration
or filing with, or notice to, any governmental authority or court is required
for the execution, delivery and performance of or compliance by the Depositor
with this Agreement or the consummation by the Depositor of any of the
transactions contemplated hereby, except as have been made on or prior to the
Closing Date;
(e) None of the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby or thereby, or the
fulfillment of or compliance with the terms and conditions of this Agreement,
(i) conflicts or will conflict with or results or will result in a breach of, or
constitutes or will constitute a default or results or will result in an
acceleration under (A) the charter or bylaws of the Depositor, or (B) of any
term, condition or provision of any material indenture, deed of trust, contract
or other agreement or instrument to which the Depositor or any of its
subsidiaries is a party or by which it or any of its subsidiaries is bound; (ii)
results or will result in a violation of any law, rule, regulation, order,
judgment or decree applicable to the Depositor of any court or governmental
authority having jurisdiction over the Depositor or its subsidiaries; or (iii)
results in the creation or imposition of any lien, charge or encumbrance which
would have a material adverse effect upon the Mortgage Loans or any documents or
instruments evidencing or securing the Mortgage Loans;
(f) There are no actions, suits or proceedings before or against or
investigations of, the Depositor pending, or to the knowledge of the Depositor,
threatened, before any court, administrative agency or other tribunal, and no
notice of any such action, which, in the Depositor's reasonable judgment, might
materially and adversely affect the performance by the Depositor of its
obligations under this Agreement, or the validity or enforceability of this
Agreement;
(g) The Depositor is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency that may materially and adversely affect its
performance hereunder; and
(h) Immediately prior to the transfer and assignment by the
Depositor to the Trustee on the Closing Date, the Depositor had good title to,
and was the sole owner of each Mortgage Loan, free of any interest of any other
Person, and the Depositor has transferred all right, title and interest in each
Mortgage Loan to the Trustee. The transfer of each Mortgage Note and each
Mortgage as and in the manner contemplated by this Agreement is sufficient
either (i) fully to transfer to the Trustee, for the benefit of the
Certificateholders, all right, title, and interest of the Depositor thereto as
note holder and mortgagee or (ii) to grant to the Trustee, for the benefit of
the Certificateholders, the security interest referred to in Section 12.04.
It is understood and agreed that the representations, warranties and
covenants set forth in this Section 2.06 shall survive delivery of the
respective Custodial Files to each Custodian and shall inure to the benefit of
the Trustee and each Servicer.
Section 2.07 Enforcement of Obligations for Breach of Mortgage Loan
Representations. Upon discovery by any of the parties hereto of a breach of a
representation or warranty made by Aames pursuant to the Aames Assignment
Agreement, Fremont pursuant to the Fremont Assignment Agreement, Impac pursuant
to the Impac Assignment Agreement, Meritage pursuant to the Meritage Assignment
Agreement or the Sponsor pursuant to the Representations and Warranties
Agreement, the party discovering such breach shall give prompt written notice
thereof to the other parties to this Agreement and Aames, Fremont, Impac,
Meritage or the Sponsor, as applicable. The Trustee shall take such action, with
the Depositor's consent, with respect to such breach under the applicable
Assignment Agreement or the Representations and Warranties Agreement, as
applicable, as may be necessary or appropriate to enforce the rights of the
Trust with respect thereto. In such event, the legal expenses and costs of such
action and any liability resulting therefrom shall be expenses, costs and
liabilities of the Trust Fund, and the Trustee shall be entitled to be
reimbursed therefor out of the Collection Account.
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicers to Service Mortgage Loans. (a) For and on
behalf of the Certificateholders, each Servicer shall service and administer the
related Mortgage Loans in accordance with the terms of this Agreement and the
respective Mortgage Loans (provided, however that, prior to the related
Servicing Transfer Date, the applicable Original Loan Seller shall service such
applicable Mortgage Loans pursuant to this Agreement), to the extent consistent
with such terms, in compliance with all applicable federal, state and local
laws, and in the same manner in which it services and administers similar
mortgage loans for its own portfolio, giving due consideration to customary and
usual standards of practice of mortgage lenders and loan servicers administering
similar mortgage loans but without regard to:
(i) any relationship that such Servicer, any Subservicer or any
Affiliate of such Servicer or any Subservicer may have with the related
Mortgagor;
(ii) the ownership or non-ownership of any Certificate by such
Servicer or any Affiliate of such Servicer;
(iii) such Servicer's obligation to make P&I Advances or Servicing
Advances; or
(iv) such Servicer's or any Subservicer's right to receive
compensation for its services hereunder or with respect to any particular
transaction.
To the extent consistent with the foregoing, each Servicer shall
seek to maximize the timely and complete recovery of principal and interest on
the Mortgage Notes. Subject only to the above described servicing standards and
the terms of this Agreement and of the respective Mortgage Loans, each Servicer
shall have full power and authority, acting alone or through Subservicers as
provided in Section 3.02, to do or cause to be done any and all things in
connection with such servicing and administration which it may deem necessary or
desirable. Without limiting the generality of the foregoing, each Servicer in
its own name or in the name of the Trustee, solely in its capacity as Trustee
for the Trust, or in the name of a Subservicer is hereby authorized and
empowered by the Trustee when the applicable Servicer believes it appropriate in
its best judgment in accordance with Accepted Servicing Practices, to execute
and deliver any and all instruments of satisfaction or cancellation, or of
partial or full release or discharge, and all other comparable instruments, with
respect to the Mortgage Loans and the Mortgaged Properties and to institute
foreclosure proceedings or obtain a deed in lieu of foreclosure so as to convert
the ownership of such properties, and to hold or cause to be held title to such
properties, on behalf of the Trustee and in the name of the Trust. Each Servicer
shall service and administer the Mortgage Loans in accordance with applicable
state and federal law and shall provide to the Mortgagors any reports required
to be provided to them thereby. Each Servicer shall also comply in the
performance of this Agreement with all reasonable rules and requirements of each
insurer under any standard hazard insurance policy. Subject to Section 3.16, the
Trustee shall execute, at the written request of a Servicer, and the applicable
Custodian and/or the Trustee, as applicable, shall furnish to such Servicer and
any Subservicer such documents as are necessary or appropriate to enable such
Servicer or any Subservicer to carry out their servicing and administrative
duties hereunder, and the Trustee hereby grants to each Servicer, and this
Agreement shall constitute, a power of attorney to carry out such duties
including a power of attorney to take title to Mortgaged Properties after
foreclosure on behalf of the Trustee and in the name of the Trust. The
Securities Administrator shall execute a separate power of attorney in the form
attached hereto as Exhibit R in favor of each Servicer for the purposes
described herein to the extent necessary or desirable to enable each Servicer to
perform its duties hereunder. The Trustee shall not be liable for the actions of
any Servicer or any Subservicers under such powers of attorney.
(b) Subject to Section 3.09(b), in accordance with Accepted
Servicing Practices, each Servicer shall advance or cause to be advanced funds
as necessary for the purpose of effecting the timely payment of taxes and
assessments on the Mortgaged Properties, which advances shall be Servicing
Advances reimbursable in the first instance from related collections from the
Mortgagors pursuant to Section 3.09(b), and further as provided in Section 3.11.
Any cost incurred by a Servicer or by Subservicers in effecting the timely
payment of taxes and assessments on a Mortgaged Property shall not be added to
the unpaid principal balance of the related Mortgage Loan, notwithstanding that
the terms of such Mortgage Loan so permit.
(c) Notwithstanding anything in this Agreement to the contrary, a
Servicer may not make any future advances with respect to a Mortgage Loan
(except as provided in Section 4.01) and none of the Servicers shall (i) permit
any modification with respect to any Mortgage Loan that would change the
Mortgage Interest Rate, reduce or increase the principal balance (except for
reductions resulting from actual payments of principal) or change the final
maturity date on such Mortgage Loan (except for (A) a reduction of interest or
principal payments resulting from the application of the Servicemembers Civil
Relief Act or any similar state statutes or (B) as provided in Section 3.07(a),
if the Mortgagor is in default with respect to the Mortgage Loan or such default
is, in the judgment of such Servicer, reasonably foreseeable) or (ii) permit any
modification, waiver or amendment of any term of any Mortgage Loan that would
both (A) effect an exchange or reissuance of such Mortgage Loan under Section
1001 of the Code (or final, temporary or proposed Treasury regulations
promulgated thereunder) and (B) cause any Trust REMIC to fail to qualify as a
REMIC under the Code or the imposition of any tax on "prohibited transactions"
or "contributions after the start-up day" under the REMIC Provisions, or (iii)
except as provided in Section 3.07(a), waive any Prepayment Premiums.
(d) Each Servicer may delegate its responsibilities under this
Agreement; provided, however, that no such delegation shall release that
Servicer from the responsibilities or liabilities arising under this Agreement.
(e) No Servicer shall be required to remit, report or service, and
shall not be required to include in any certification to be provided by such
Servicer pursuant to this Agreement, in connection with the Reporting Date or
the Distribution Date in June 2006 (with regards to those Mortgage Loans with a
Servicing Transfer Date in June 2006) or July 2006 (with regards to those
Mortgage Loans with a Servicing Transfer Date in July 2006).
Section 3.02 Subservicing Agreements between a Servicer and
Subservicers. (a) Each Servicer may enter into subservicing agreements with
Subservicers, for the servicing and administration of the Mortgage Loans
("Subservicing Agreements"). Each Servicer represents and warrants to the other
parties hereto that no Subservicing Agreement is in effect as of the Closing
Date with respect to any Mortgage Loans required to be serviced by it hereunder.
Each Servicer shall give notice to the Depositor, the Master Servicer, the
Securities Administrator and the applicable Custodian of any such Subservicer
and Subservicing Agreement, which notice shall contain all information
(including without limitation a copy of the Subservicing Agreement) reasonably
necessary to enable the Securities Administrator, pursuant to Section 8.12(g),
to accurately and timely report the event under Item 6.02 of Form 8-K pursuant
to the Exchange Act (if such reports under the Exchange Act are required to be
filed under the Exchange Act). During the period when reports are required to be
filed for the Trust under the Exchange Act, no Subservicing Agreement shall be
effective until 30 days after such written notice is received by the Depositor,
the Master Servicer and the Securities Administrator and thereafter shall be
effective at the time the applicable Servicer and any Subservicer enter into any
such Subservicing Agreement. Neither the Securities Administrator nor the Master
Servicer shall not be required to review or consent to such Subservicing
Agreements and shall have no liability in connection therewith.
(b) Each Subservicer shall be (i) authorized to transact business in
the state or states in which the related Mortgaged Properties it is to service
are situated, if and to the extent required by applicable law to enable the
Subservicer to perform its obligations hereunder and under the Subservicing
Agreement, (ii) an institution approved as a mortgage loan originator by the
Federal Housing Administration or an institution that has deposit accounts
insured by the FDIC and (iii) a Freddie Mac or Xxxxxx Xxx approved mortgage
servicer. Each Subservicing Agreement must impose on the Subservicer
requirements conforming to the provisions set forth in Section 3.08 and provide
for servicing of the Mortgage Loans consistent with the terms of this Agreement.
Each Servicer will examine each Subservicing Agreement and will be familiar with
the terms thereof. The terms of any Subservicing Agreement will not be
inconsistent with any of the provisions of this Agreement. Each Servicer and the
respective Subservicers may enter into and make amendments to the Subservicing
Agreements or enter into different forms of Subservicing Agreements; provided,
however, that any such amendments or different forms shall be consistent with
and not violate the provisions of this Agreement, and that no such amendment or
different form shall be made or entered into which could be reasonably expected
to be materially adverse to the interests of the Trustee, without the consent of
the Trustee. Any variation without the consent of the Trustee from the
provisions set forth in Section 3.08 relating to insurance or priority
requirements of Subservicing Accounts, or credits and charges to the
Subservicing Accounts or the timing and amount of remittances by the
Subservicers to such Servicer, are conclusively deemed to be inconsistent with
this Agreement and therefore prohibited. Each Servicer shall deliver to the
Trustee, the Master Servicer, the Securities Administrator and the Depositor
copies of all Subservicing Agreements, and any amendments or modifications
thereof, promptly upon such Servicer's execution and delivery of such
instruments.
(c) As part of its servicing activities hereunder, each Servicer
(except as otherwise provided in the last sentence of this paragraph), for the
benefit of the Trustee, shall enforce the obligations of each Subservicer under
the related Subservicing Agreement, including, without limitation, any
obligation to make advances in respect of delinquent payments as required by a
Subservicing Agreement. Such enforcement, including, without limitation, the
legal prosecution of claims, termination of Subservicing Agreements, and the
pursuit of other appropriate remedies, shall be in such form and carried out to
such an extent and at such time as such Servicer, in its good faith business
judgment, would require were it the owner of the related Mortgage Loans. Each
Servicer shall pay the costs of such enforcement at its own expense, and shall
be reimbursed therefor only (i) from a general recovery resulting from such
enforcement, to the extent, if any, that such recovery exceeds all amounts due
in respect of the related Mortgage Loans or (ii) from a specific recovery of
costs, expenses or attorneys' fees against the party against whom such
enforcement is directed.
(d) Each Servicer shall cause any Subservicer engaged by such
Servicer (or by any Subservicer) for the benefit of the Depositor, the Master
Servicer, the Securities Administrator and the Trustee to comply with the
provisions of this Section 3.02 and with Sections 3.22, 3.23, 6.02 and 6.05 of
this Agreement to the same extent as if such Subservicer were such Servicer, and
to provide the information required with respect to such Subservicer under
Section 8.12(g) of this Agreement. Each Servicer shall be responsible for
obtaining from each such Subservicer and delivering to applicable Persons any
servicer compliance statement required to be delivered by such Subservicer under
Section 3.22 and any assessment of compliance report and related accountant's
attestation required to be delivered by such Subservicer under Section 3.23, in
each case as and when required to be delivered.
(e) Subject to the conditions set forth in this Section 3.02(e),
each Servicer and any Subservicer engaged by such Servicer is permitted to
utilize one or more Subcontractors to perform certain of its obligations
hereunder. Such Servicer shall promptly upon request provide to the Depositor or
the Master Servicer a written description (in form and substance satisfactory to
the Depositor) of the role and function of each Subcontractor utilized by such
Servicer or any such Subservicer, specifying, not later than the date specified
for delivery of the annual report on assessment of compliance set forth in
Section 3.23(b) (i) the identity of each such Subcontractor, if any, that is
"participating in the servicing function" within the meaning of Item 1122 of
Regulation AB, and (ii) which elements of the Servicing Criteria will be
addressed in assessments of compliance provided by each Subcontractor identified
pursuant to clause (i) of this paragraph. As a condition to the utilization by
such Servicer or any such Subservicer of any Subcontractor determined to be
"participating in the servicing function" within the meaning of Item 1122 of
Regulation AB, such Servicer shall cause any such Subcontractor used by such
Servicer (or by any such Subservicer) for the benefit of the Depositor, the
Master Servicer, the Securities Administrator and the Trustee to comply with the
provisions of Section 3.23 of this Agreement to the same extent as if such
Subcontractor were such Servicer. Such Servicer shall be responsible for
obtaining from each such Subcontractor and delivering to the applicable Persons
any assessment of compliance report and related accountant's attestation
required to be delivered by such Subcontractor under Section 3.23, in each case
as and when required to be delivered.
Notwithstanding the foregoing, if a Servicer engages a Subcontractor
in connection with the performance of any of its duties under this Agreement,
such Servicer shall be responsible for determining whether such Subcontractor is
a "servicer" within the meaning of Item 1101 of Regulation AB and whether any
such affiliate or third-party vendor meets the criteria in Item 1108(a)(2)(i)
through (iii) of Regulation AB. If a Servicer determines, pursuant to the
preceding sentence, that such Subcontractor is a "servicer" within the meaning
of Item 1101 of Regulation AB and meets the criteria in Item 1108(a)(2)(i)
through (iii) of Regulation AB, then such Subcontractor shall be deemed to be a
Subservicer for purposes of this Agreement (and shall not be required to meet
the requirements of a Subservicer set forth in Section 3.02(b)), the engagement
of such Subservicer shall not be effective unless and until notice is given
pursuant to Section 3.02(a) and such Servicer shall comply with Section 3.02(d)
with respect thereto.
Section 3.03 Successor Subservicers. Each Servicer shall be entitled
to terminate any Subservicing Agreement and the rights and obligations of any
Subservicer pursuant to any Subservicing Agreement in accordance with the terms
and conditions of such Subservicing Agreement; provided, however, that during
the period when reports are required to be filed for the Trust under the
Exchange Act, the termination, resignation or removal of a Subservicer shall be
not be effective until 30 days after written notice is received by each of the
Depositor, the Master Servicer and the Securities Administrator that contains
all information reasonably necessary to enable the Securities Administrator,
pursuant to Section 8.12(g), to accurately and timely report the event under
Item 6.02 of Form 8-K pursuant to the Exchange Act (if such reports under the
Exchange Act are required to be filed under the Exchange Act). In the event of
termination of any Subservicer, all servicing obligations of such Subservicer
shall be assumed simultaneously by the applicable Servicer without any act or
deed on the part of such Subservicer or such Servicer, and such Servicer either
shall service directly the related Mortgage Loans or shall enter into a
Subservicing Agreement with a successor Subservicer which qualifies under
Section 3.02.
Any Subservicing Agreement shall include the provision that such
agreement may be immediately terminated by the Depositor or the Master Servicer
without fee, in accordance with the terms of this Agreement, in the event that
the Servicer shall, for any reason, no longer be a Servicer (including
termination due to an Event of Default).
Section 3.04 Liability of the Servicer. Notwithstanding any
Subservicing Agreement, any of the provisions of this Agreement relating to
agreements or arrangements between a Servicer and a Subservicer or reference to
actions taken through a Subservicer or otherwise, such Servicer shall remain
obligated and primarily liable to the Trustee for the servicing and
administering of the Mortgage Loans in accordance with the provisions of Section
3.01 without diminution of such obligation or liability by virtue of such
Subservicing Agreements or arrangements or by virtue of indemnification from the
Subservicer and to the same extent and under the same terms and conditions as if
such Servicer alone were servicing and administering such Mortgage Loans. Each
Servicer shall be entitled to enter into any agreement with a Subservicer for
indemnification of such Servicer by such Subservicer and nothing contained in
this Agreement shall be deemed to limit or modify such indemnification.
Section 3.05 No Contractual Relationship between Subservicers, the
Trustee and the Master Servicer. Any Subservicing Agreement that may be entered
into and any transactions or services relating to the Mortgage Loans involving a
Subservicer in its capacity as such shall be deemed to be between the
Subservicer and the related Servicer alone, and neither the Trustee nor the
Master Servicer (or any successor to such Servicer) shall be deemed a party
thereto and shall have no claims, rights, obligations, duties or liabilities
with respect to the Subservicer except as set forth in Section 3.06. Each
Servicer shall be solely liable for all fees owed by it to any Subservicer,
irrespective of whether the Servicer's compensation pursuant to this Agreement
is sufficient to pay such fees.
Section 3.06 Assumption or Termination of Subservicing Agreements by
Master Servicer. In the event a Servicer at any time shall for any reason no
longer be a Servicer (including by reason of the occurrence of an Event of
Default), the Master Servicer, or its designee, or the successor Servicer if the
successor Servicer is not the Master Servicer, shall, subject to the rights of
the Servicing Rights Pledgee, thereupon assume all of the rights and obligations
of such Servicer under each Subservicing Agreement that such Servicer may have
entered into, with copies thereof provided to the Master Servicer prior to the
Master Servicer assuming such rights and obligations, unless the Master Servicer
elects to terminate any Subservicing Agreement in accordance with its terms as
provided in Section 3.03.
Upon such assumption, the Master Servicer, its designee or the
successor servicer shall be deemed, subject to Section 3.03, to have assumed all
of such Servicer's interest therein and to have replaced such Servicer as a
party to each Subservicing Agreement to the same extent as if each Subservicing
Agreement had been assigned to the assuming party, except that (i) such Servicer
shall not thereby be relieved of any liability or obligations under any
Subservicing Agreement that arose before it ceased to be a Servicer and (ii)
none of the Depositor, the Master Servicer, the Trustee, their designees or any
successor Servicer shall be deemed to have assumed any liability or obligation
of such Servicer that arose before it ceased to be a Servicer.
Each Servicer at its expense shall, upon request of the Master
Servicer, deliver to the assuming party all documents and records relating to
each Subservicing Agreement and the Mortgage Loans then being serviced and an
accounting of amounts collected and held by or on behalf of it, and otherwise
use its best efforts to effect the orderly and efficient transfer of the
Subservicing Agreements to the assuming party.
Section 3.07 Collection of Certain Mortgage Loan Payments. (a) Each
Servicer shall make reasonable efforts to collect all payments called for under
the terms and provisions of the Mortgage Loans and shall, to the extent such
procedures shall be consistent with this Agreement and the terms and provisions
of any applicable Insurance Policies, follow such collection procedures as it
would follow with respect to mortgage loans comparable to the Mortgage Loans and
held for its own account. Consistent with the foregoing and Accepted Servicing
Practices, each Servicer may (i) waive any late payment charge or, if
applicable, any penalty interest, or (ii) extend the Due Dates for the Scheduled
Payments due on a Mortgage Note for a period of not greater than 180 days;
provided, that any extension pursuant to clause (ii) above shall not affect the
amortization schedule of any Mortgage Loan for purposes of any computation
hereunder, except as provided below. In the event of any such arrangement
pursuant to clause (ii) above, the applicable Servicer shall make timely
advances on such Mortgage Loan during such extension pursuant to Section 4.01
and in accordance with the amortization schedule of such Mortgage Loan without
modification thereof by reason of such arrangements, subject to Section 4.01(d)
pursuant to which such Servicer shall not be required to make any such advances
that are Nonrecoverable P&I Advances. Notwithstanding the foregoing, in the
event that any Mortgage Loan is in default or, in the judgment of such Servicer,
such default is reasonably foreseeable, such Servicer, consistent with the
standards set forth in Section 3.01, may also waive, modify or vary any term of
such Mortgage Loan (including modifications that would change the Mortgage
Interest Rate, forgive the payment of principal or interest, extend the final
maturity date of such Mortgage Loan or waive, in whole or in part, a Prepayment
Premium), accept payment from the related Mortgagor of an amount less than the
Stated Principal Balance in final satisfaction of such Mortgage Loan, or consent
to the postponement of strict compliance with any such term or otherwise grant
indulgence to any Mortgagor (any and all such waivers, modifications, variances,
forgiveness of principal or interest, postponements, or indulgences collectively
referred to herein as "Forbearance"); provided, however, that the final maturity
date of any Mortgage Loan may not be extended beyond the Final Scheduled
Distribution Date for the LIBOR Certificates. The applicable Servicer's analysis
supporting any Forbearance and the conclusion that any Forbearance meets the
standards of Section 3.01 shall be reflected in writing in the applicable
Servicing File. Notwithstanding the foregoing, a Servicer may waive, in whole or
in part, a Prepayment Premium only under the following circumstances: (i) such
waiver relates to a default or a reasonably foreseeable default and would, in
the reasonable judgment of the applicable Servicer, maximize recovery of total
proceeds taking into account the value of such Prepayment Premium and the
related Mortgage Loan, (ii) such Prepayment Premium is not permitted to be
collected by applicable federal, state or local law or regulation, (iii) the
collection of such Prepayment Premium would be considered "predatory" pursuant
to written guidance published or issued by any applicable federal, state or
local regulatory authority acting in its official capacity and having
jurisdiction over such matters, (iv) the enforceability thereof is limited (1)
by bankruptcy, insolvency, moratorium, receivership or other similar laws
relating to creditor's rights generally or (2) due to acceleration in connection
with a foreclosure or other involuntary payment or (v) if the applicable
Servicer has not been provided with information sufficient to enable it to
collect the Prepayment Premium. If a Prepayment Premium is waived other than as
permitted in this Section 3.07(a), then the applicable Servicer is required to
pay the amount of such waived Prepayment Premium, for the benefit of the Holders
of the Class P Certificates, by depositing such amount into the Collection
Account as soon as possible after the date of payoff, but in no event later than
five (5) Business Days from such date.
(b) The applicable Servicer shall give notice to the Master
Servicer, the Securities Administrator, the Trustee, each Rating Agency and the
Depositor of any proposed change of the location of the Collection Account
within a reasonable period of time prior to any change thereof.
Section 3.08 Subservicing Accounts. In those cases where a
Subservicer is servicing a Mortgage Loan pursuant to a Subservicing Agreement,
the Subservicer will be required to establish and maintain one or more
segregated accounts (collectively, the "Subservicing Account"). The Subservicing
Account shall be an Eligible Account and shall otherwise be acceptable to the
related Servicer. The Subservicer shall deposit in the clearing account (which
account must be an Eligible Account) in which it customarily deposits payments
and collections on mortgage loans in connection with its mortgage loan servicing
activities on a daily basis, and in no event more than one Business Day after
the Subservicer's receipt thereof, all proceeds of Mortgage Loans received by
the Subservicer less its servicing compensation to the extent permitted by the
Subservicing Agreement, and shall thereafter deposit such amounts in the
Subservicing Account, in no event more than two Business Days after the deposit
of such funds into the clearing account. The Subservicer shall thereafter
deposit such proceeds in the Collection Account or remit such proceeds to the
applicable Servicer for deposit in the Collection Account not later than two
Business Days after the deposit of such amounts in the Subservicing Account. For
purposes of this Agreement, such Servicer shall be deemed to have received
payments on the Mortgage Loans when the Subservicer receives such payments.
Section 3.09 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts. (a) Each Servicer shall ensure that each First Lien Mortgage
Loan shall be covered by a paid-in-full, life-of-the-loan tax service contract
(each, a "Tax Service Contract"); provided, that the applicable Original Loan
Seller transferred a fully transferable Tax Service Contract to such Servicer at
no expense to that Servicer. Each Tax Service Contract shall be assigned to the
Master Servicer (or successor servicer), as applicable, at the applicable
Servicer's expense in the event that a Servicer is terminated as Servicer of the
related Mortgage Loan.
(b) To the extent that the services described in this paragraph (b)
are not otherwise provided pursuant to the Tax Service Contracts described in
paragraph (a) above, each Servicer undertakes to perform such functions. To the
extent the related Mortgage Loan provides for Escrow Payments, the related
Servicer shall establish and maintain, or cause to be established and
maintained, one or more segregated accounts (the "Escrow Accounts"), which shall
be Eligible Accounts. Each Servicer shall deposit in the clearing account (which
account must be an Eligible Account) in which it customarily deposits payments
and collections on mortgage loans in connection with its mortgage loan servicing
activities on a daily basis, and in no event more than one Business Day after
such Servicer's receipt thereof, all collections from the Mortgagors (or related
advances from Subservicers) for the payment of taxes, assessments, hazard
insurance premiums and comparable items for the account of the Mortgagors
("Escrow Payments") collected on account of the Mortgage Loans and shall
thereafter deposit such Escrow Payments in the Escrow Accounts, in no event more
than two Business Days after the deposit of such funds in the clearing account,
for the purpose of effecting the payment of any such items as required under the
terms of this Agreement. Withdrawals of amounts from an Escrow Account may be
made only to (i) effect payment of taxes, assessments, hazard insurance
premiums, and comparable items; (ii) reimburse such Servicer (or a Subservicer
to the extent provided in the related Subservicing Agreement) out of related
collections for any advances made pursuant to Section 3.01 (with respect to
taxes and assessments) and Section 3.13 (with respect to hazard insurance);
(iii) refund to Mortgagors any sums as may be determined to be overages; (iv)
pay interest, if required and as described below, to Mortgagors on balances in
the Escrow Account; (v) clear and terminate the Escrow Account at the
termination of such Servicer's obligations and responsibilities in respect of
the Mortgage Loans under this Agreement; or (vi) recover amounts deposited in
error. As part of its servicing duties, each Servicer or Subservicer shall pay
to the Mortgagors interest on funds in Escrow Accounts, to the extent required
by law and, to the extent that interest earned on funds in the Escrow Accounts
is insufficient, to pay such interest from its or their own funds, without any
reimbursement therefor. To the extent that a Mortgage does not provide for
Escrow Payments, the applicable Servicer shall determine whether any such
payments are made by the Mortgagor in a manner and at a time that is necessary
to avoid the loss of the Mortgaged Property due to a tax sale or the foreclosure
as a result of a tax lien. If any such payment has not been made and the
applicable Servicer receives notice of a tax lien with respect to the Mortgage
Loan being imposed, such Servicer will, promptly and to the extent required to
avoid loss of the Mortgaged Property, advance or cause to be advanced funds
necessary to discharge such lien on the Mortgaged Property. The applicable
Servicer assumes full responsibility for the payment of all such bills within
such time and shall effect payments of all such bills irrespective of the
Mortgagor's faithful performance in the payment of same or the making of the
Escrow Payments and shall make advances from its own funds to effect such
payments; provided, however, that such advances are deemed to be Servicing
Advances.
Section 3.10 Collection Account. (a) On behalf of the Trustee, each
Servicer shall establish and maintain, or cause to be established and
maintained, one or more segregated Eligible Accounts (such account or accounts,
the "Collection Account"), held in trust for the benefit of the Trustee for the
benefit of the Certificateholders. Funds in the Collection Account shall not be
commingled with any other funds of the applicable Servicer. On behalf of the
Trustee, each Servicer shall deposit or cause to be deposited in the clearing
account (which account must be an Eligible Account) in which it customarily
deposits payments and collections on mortgage loans in connection with its
mortgage loan servicing activities on a daily basis, and in no event more than
one Business Day after such Servicer's receipt thereof, and shall thereafter
deposit in the Collection Account, in no event more than two Business Days after
the deposit of such funds into the clearing account, as and when received or as
otherwise required hereunder, the following payments and collections received or
made by it subsequent to the Cut-off Date (other than in respect of principal or
interest on the related Mortgage Loans due on or before the Cut-off Date), or
payments (other than Principal Prepayments) received by it on or prior to the
Cut off Date but allocable to a Due Period subsequent thereto:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest (net of the related
Servicing Fee) on each Mortgage Loan;
(iii) all Insurance Proceeds and Condemnation Proceeds (to the
extent such Insurance Proceeds and Condemnation Proceeds are not to be
applied to the restoration of the related Mortgaged Property or released
to the related Mortgagor in accordance with the express requirements of
law or in accordance with Accepted Servicing Practices) and all
Liquidation Proceeds;
(iv) any amounts required to be deposited pursuant to Section 3.12
in connection with any losses realized on Permitted Investments with
respect to funds held in the Collection Account;
(v) any amounts required to be deposited by such Servicer pursuant
to the second paragraph of Section 3.13(a) in respect of any blanket
policy deductibles;
(vi) all proceeds of any Mortgage Loan repurchased or purchased in
accordance with this Agreement and any Substitution Adjustment Amount; and
(vii) all Prepayment Premiums collected by such Servicer.
The foregoing requirements for deposit in the Collection Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of late payment charges, NSF
fees, reconveyance fees, assumption fees and other similar fees and charges need
not be deposited by each Servicer in the Collection Account and shall, upon
collection, belong to the applicable Servicer as additional compensation for its
servicing activities. In the event a Servicer shall deposit in the Collection
Account any amount not required to be deposited therein, it may at any time
withdraw such amount from the Collection Account, any provision herein to the
contrary notwithstanding.
(b) Funds in the Collection Account may be invested in Permitted
Investments in accordance with the provisions set forth in Section 3.12. Each
Servicer shall give notice to the Master Servicer, the Securities Administrator,
the Trustee and the Depositor of the location of the Collection Account
maintained by it when established and prior to any change thereof.
Section 3.11 Withdrawals from the Collection Account. (a) Each
Servicer shall, from time to time, make withdrawals from the Collection Account
for any of the following purposes or as described in Section 4.01:
(i) on or prior to the Remittance Date, to remit to the Securities
Administrator for deposit in the Distribution Account, all Available Funds
(which solely for purposes of this Section 3.11(a)(i) shall not be net of
the Master Servicing Fee) in respect of the related Distribution Date
together with all amounts representing Prepayment Premiums from the
Mortgage Loans received during the related Prepayment Period;
(ii) to reimburse the applicable Servicer for P&I Advances, but only
to the extent of amounts received which represent Late Collections (net of
the related Servicing Fees) of Scheduled Payments on Mortgage Loans with
respect to which such P&I Advances were made in accordance with the
provisions of Section 4.01;
(iii) to pay such Servicer or any Subservicer (A) any unpaid
Servicing Fees or (B) any unreimbursed Servicing Advances with respect to
each Mortgage Loan, but in each case only to the extent of any Late
Collections, Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds or other amounts as may be collected by such Servicer from a
Mortgagor, or otherwise received with respect to such Mortgage Loan (or
the related REO Property);
(iv) to pay to such Servicer as servicing compensation (in addition
to the Servicing Fee) on the Remittance Date any interest or investment
income earned on funds deposited in the Collection Account;
(v) to pay the Sponsor or the Depositor, as applicable, with respect
to each Mortgage Loan that has previously been repurchased or replaced
pursuant to this Agreement all amounts received thereon subsequent to the
date of purchase or substitution, as the case may be;
(vi) to reimburse such Servicer for (A) any unreimbursed P&I Advance
or Servicing Advance previously made which such Servicer has determined to
be a Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance in
accordance with the provisions of Section 4.01, (B) any P&I Advance or
Servicing Advance previously made with respect to a delinquent Mortgage
Loan which Mortgage Loan has been modified by such Servicer in accordance
with the terms of this Agreement; provided that such Servicer shall only
reimburse itself for such P&I Advances and Servicing Advances at the time
of such modification and shall reimburse itself after such modification
only as otherwise permitted under the other clauses of this Section
3.11(a), and (C) any outstanding P&I Advance or Servicing Advance made by
the such Servicer from its own funds, from Amounts Held for Future
Distribution, provided, however, any funds so applied shall be replaced by
such Servicer by deposit in the Collection Account no later than the close
of business on the related Remittance Date on which such funds are
required to be distributed pursuant to Section 4.01(b);
(vii) to pay, or to reimburse such Servicer for advances in respect
of, expenses incurred in connection with any Mortgage Loan pursuant to
Section 3.15;
(viii) to reimburse the Master Servicer, such Servicer, the
Depositor, the Securities Administrator or the Trustee for expenses
incurred by or reimbursable to the Master Servicer, such Servicer, the
Depositor, the Securities Administrator or the Trustee, as the case may
be, pursuant to Section 6.03, Section 7.02 or Section 8.05;
(ix) to reimburse the Master Servicer, such Servicer or the Trustee,
as the case may be, for expenses reasonably incurred in respect of the
breach or defect giving rise to the repurchase obligation as described in
Section 2.03 that were included in the Repurchase Price of the Mortgage
Loan, including any expenses arising out of the enforcement of the
repurchase obligation, to the extent not otherwise paid pursuant to the
terms hereof;
(x) to invest funds in Permitted Investments in accordance with
Section 3.12;
(xi) to withdraw any amounts deposited in the Collection Account in
error;
(xii) to withdraw any amounts held in the Collection Account and not
required to be remitted to the Master Servicer on the Remittance Date
occurring in the month in which such amounts are deposited into the
Collection Account, to reimburse such Servicer for unreimbursed Advances;
and
(xiii) to clear and terminate the Collection Account upon
termination of this Agreement.
To the extent that a Servicer does not timely make the remittance
referred to in clause (i) above, such Servicer shall pay the Master Servicer for
the account of the Master Servicer interest on any amount not timely remitted at
the prime rate, from and including the applicable Remittance Date to but
excluding the date such remittance is actually made.
(b) Each Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Collection Account, to the extent held by or on behalf of
it, pursuant to subclauses (a)(ii), (iii), (iv), (v), (vi), (vii), (viii) and
(ix) above. Each Servicer shall provide written notification to the Depositor,
on or prior to the next succeeding Remittance Date, upon making any withdrawals
from the Collection Account pursuant to subclause (a)(vi) above.
Section 3.12 Investment of Funds in the Collection Account and the
Distribution Account. (a) Each Servicer may invest the funds in the Collection
Account. The Securities Administrator may invest funds in the Distribution
Account during the Securities Administrator Float Period, and shall (except
during the Securities Administrator Float Period), invest such funds in the
Distribution Account at the direction of the Depositor or Xxxxxx, in the case of
remittances from Xxxxxx. For purposes of this Section 3.12, each of the
Collection Accounts and the Distribution Accounts are referred to as an
"Investment Account") and all funds therein may be invested in one or more
Permitted Investments bearing interest or sold at a discount, and maturing,
unless payable on demand and in the absence of written instructions from Xxxxxx,
the Securities Administrator shall invest in the Xxxxx Fargo Advantage Prime
Investment Money Market Fund. no later than the Business Day on which such funds
are required to be withdrawn from such account pursuant to this Agreement
(except for investments made at the Depositor's direction, which shall mature no
later than the Business Day immediately preceding the date of required
withdrawal). All such Permitted Investments shall be held to maturity, unless
payable on demand. Any investment of funds in an Investment Account shall be
made in the name of the Securities Administrator. The Securities Administrator
shall be entitled to sole possession (except with respect to investment
direction of funds held in the related Account and any income and gain realized
thereon in any Account other than the Distribution Account during the Securities
Administrator Float Period) over each such investment, and any certificate or
other instrument evidencing any such investment shall be delivered directly to
the Securities Administrator or its agent, together with any document of
transfer necessary to transfer title to such investment to the Securities
Administrator. In the event amounts on deposit in an Investment Account are at
any time invested in a Permitted Investment payable on demand, the Securities
Administrator may:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an
amount equal to the lesser of (1) all amounts then payable
thereunder and (2) the amount required to be withdrawn on such
date; and
(y) demand payment of all amounts due thereunder that such
Permitted Investment would not constitute a Permitted
Investment in respect of funds thereafter on deposit in the
Investment Account.
(b) All income and gain realized from the investment of funds
deposited in the Collection Account held by or on behalf of the related
Servicer, shall be for the benefit of such Servicer and shall be subject to its
withdrawal in the manner set forth in Section 3.11. Such Servicer shall deposit
in the Collection Account the amount of any loss of principal incurred in
respect of any such Permitted Investment made with funds in such accounts
immediately upon realization of such loss.
(c) All income and gain realized from the investment of funds
deposited in the Distribution Account held by the Securities Administrator,
shall be for the benefit of the Depositor or Xxxxxx (except for any income or
gain realized from the investment of funds on deposit in the Distribution
Account during the Securities Administrator Float Period, which shall be for the
benefit of the Securities Administrator). The Depositor or Xxxxxx shall deposit
in the Distribution Account (except with respect to the Securities Administrator
Float Period, in which case the Securities Administrator shall so deposit) the
amount of any loss of principal incurred in respect of any such Permitted
Investment made with funds in such accounts immediately upon realization of such
loss.
(d) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Securities Administrator shall take such action as may be
appropriate to enforce such payment or performance, including the institution
and prosecution of appropriate proceedings.
(e) The Securities Administrator or its Affiliates are permitted to
receive additional compensation that could be deemed to be in the Securities
Administrator's economic self-interest for (i) serving as investment adviser,
administrator, shareholder, servicing agent, custodian or sub-custodian with
respect to certain of the Permitted Investments, (ii) using Affiliates to effect
transactions in certain Permitted Investments and (iii) effecting transactions
in certain Permitted Investments.
(f) The Securities Administrator shall not be liable for the amount
of any loss incurred with respect of any investment (except that during the
Securities Administrator Float Period, it will be responsible for reimbursing
the Trust for such loss) or lack of investment of funds held in any Investment
Account or the Distribution Account if made in accordance with Section 3.12(c).
Section 3.13 Maintenance of Hazard Insurance, Errors and Omissions
and Fidelity Coverage. (a) Each Servicer shall cause to be maintained for each
First Lien Mortgage Loan standard hazard insurance on the related Mortgaged
Property in an amount which is at least equal to the lesser of (i) the
outstanding principal balance of such Mortgage Loan, in each case in an amount
not less than such amount as is necessary to prevent the Mortgagor and/or the
Mortgagee from becoming a co-insurer, (ii) the amount necessary to fully
compensate for any damage or loss to the improvements that are a part of such
property on a replacement cost basis and (iii) the amount required under the
applicable regulations set forth by each of the Department of Housing and Urban
Development and Federal Housing Administration. Each Servicer shall also cause
to be maintained fire insurance with extended coverage on each REO Property in
an amount which is at least equal to the lesser of (i) the maximum insurable
value of the improvements which are a part of such property and (ii) the
outstanding principal balance of the related Mortgage Loan at the time it became
an REO Property, plus accrued interest at the Mortgage Interest Rate and related
Servicing Advances. Each Servicer will comply in the performance of this
Agreement with all reasonable rules and requirements of each insurer under any
such hazard policies. Any amounts to be collected by any Servicer under any such
policies (other than amounts to be applied to the restoration or repair of the
property subject to the related Mortgage or amounts to be released to the
Mortgagor in accordance with the procedures that such Servicer would follow in
servicing loans held for its own account, subject to the terms and conditions of
the related Mortgage and Mortgage Note) shall be deposited in the Collection
Account, subject to withdrawal pursuant to Section 3.11. Any cost incurred by
any Servicer in maintaining any such insurance shall not, for the purpose of
calculating distributions to the Securities Administrator, be added to the
unpaid principal balance of the related Mortgage Loan, notwithstanding that the
terms of such Mortgage Loan so permit. It is understood and agreed that no
earthquake or other additional insurance is to be required of any Mortgagor
other than pursuant to such applicable laws and regulations as shall at any time
be in force and as shall require such additional insurance. If the Mortgaged
Property or REO Property is at any time in an area identified in the Federal
Register by the Federal Emergency Management Agency as having special flood
hazards and flood insurance has been made available, the applicable Servicer
will cause to be maintained a flood insurance policy in respect thereof. Such
flood insurance shall be in an amount equal to the lesser of (i) the unpaid
principal balance of the related Mortgage Loan and (ii) the maximum amount of
such insurance available for the related Mortgaged Property under the national
flood insurance program (assuming that the area in which such Mortgaged Property
is located is participating in such program).
In the event that any Servicer shall obtain and maintain a blanket
policy with an insurer having a General Policy Rating of B:VI or better in
Best's (or such other rating that is comparable to such rating) insuring against
hazard losses on all of the Mortgage Loans, it shall conclusively be deemed to
have satisfied its obligations as set forth in the first two sentences of this
Section 3.13, it being understood and agreed that such policy may contain a
deductible clause, in which case such Servicer shall, in the event that there
shall not have been maintained on the related Mortgaged Property or REO Property
a policy complying with the first two sentences of this Section 3.13, and there
shall have been one or more losses which would have been covered by such policy,
deposit to the Collection Account from its own funds the amount not otherwise
payable under the blanket policy because of such deductible clause. In
connection with its activities as administrator and servicer of the Mortgage
Loans, each Servicer agrees to prepare and present, on behalf of itself, the
Trustee claims under any such blanket policy in a timely fashion in accordance
with the terms of such policy.
(b) Each Servicer shall keep in force during the term of this
Agreement a policy or policies of insurance covering errors and omissions for
failure in the performance of such Servicer's obligations under this Agreement,
which policy or policies shall be in such form and amount that would meet the
requirements of Xxxxxx Xxx or Freddie Mac if it were the purchaser of the
Mortgage Loans, unless such Servicer has obtained a waiver of such requirements
from Xxxxxx Xxx or Freddie Mac. Each Servicer shall also maintain a fidelity
bond in the form and amount that would meet the requirements of Xxxxxx Xxx or
Freddie Mac, unless such Servicer has obtained a waiver of such requirements
from Xxxxxx Xxx or Freddie Mac. Each Servicer shall provide the Master Servicer
upon request with copies of any such insurance policies and fidelity bond (or in
the case of Avelo, the Master Servicer will be provided access to review such
insurance policies and fidelity bond of Avelo or its affiliates). Each Servicer
shall be deemed to have complied with this provision if an Affiliate of the
applicable Servicer has such errors and omissions and fidelity bond coverage
and, by the terms of such insurance policy or fidelity bond, the coverage
afforded thereunder extends to such Servicer. Upon request from the Master
Servicer, each Servicer shall cause to be delivered to the Master Servicer proof
of coverage of the fidelity bond errors and omissions insurance policy and a
statement from the surety and the insurer that that surety and insurer shall
endeavor to notify the Trustee and the Master Servicer within 30 days prior to
such fidelity bond's errors and omissions insurance policy's termination or
material modification (or 10 days for non-payment of premium for such fidelity
bond's errors and omissions insurance policy). Each Servicer shall also cause
each Subservicer to maintain a policy of insurance covering errors and omissions
and a fidelity bond which would meet such requirements.
Section 3.14 Enforcement of Due-on-Sale Clauses; Assumption
Agreements. Each Servicer will, to the extent it has knowledge of any conveyance
or prospective conveyance of any Mortgaged Property by any Mortgagor (whether by
absolute conveyance or by contract of sale, and whether or not the Mortgagor
remains or is to remain liable under the Mortgage Note and/or the Mortgage),
exercise its rights to accelerate the maturity of such Mortgage Loan under the
"due on sale" clause, if any, applicable thereto; provided, however, that no
Servicer shall be required to take such action if, in the reasonable belief of
the such Servicer, such Servicer believes it is not in the best interests of the
Trust Fund and shall not exercise any such rights if prohibited by law from
doing so. If a Servicer reasonably believes it is unable under applicable law to
enforce such "due on sale" clause or if any of the other conditions set forth in
the proviso to the preceding sentence apply, such Servicer will make reasonable
efforts to enter into an assumption and modification agreement from or with the
person to whom such property has been conveyed or is proposed to be conveyed,
pursuant to which such person becomes liable under the Mortgage Note, such
Servicer has the prior consent of the primary mortgage guaranty insurer, if any,
and, to the extent permitted by applicable state law, the Mortgagor remains
liable thereon. Each Servicer is also authorized to enter into a substitution of
liability agreement with such person, pursuant to which the original Mortgagor
is released from liability and such person is substituted as the Mortgagor and
becomes liable under the Mortgage Note; provided, that no such substitution
shall be effective unless such person satisfies the underwriting criteria of
such Servicer and has a credit risk rating at least equal to that of the
original Mortgagor. In connection with any assumption, modification or
substitution, such Servicer shall apply such underwriting standards and follow
such practices and procedures as shall be normal and usual in its general
mortgage servicing activities and as it applies to other mortgage loans owned
solely by it. No Servicer shall take or enter into any assumption and
modification agreement, however, unless (to the extent practicable in the
circumstances) it shall have received confirmation, in writing, of the continued
effectiveness of any applicable hazard insurance policy, or a new policy meeting
the requirements of this Section is obtained. Any fee collected by a Servicer in
respect of an assumption or substitution of liability agreement will be retained
by such Servicer as additional servicing compensation. In connection with any
such assumption, no material term of the Mortgage Note (including but not
limited to the related Mortgage Interest Rate and the amount of the Scheduled
Payment) may be amended or modified, except as otherwise required pursuant to
the terms thereof. Each Servicer shall notify each Custodian that any such
substitution, modification or assumption agreement has been completed by
forwarding to the applicable Custodian the executed original of such
substitution or assumption agreement, which document shall be added to the
related Mortgage File and shall, for all purposes, be considered a part of such
Mortgage File to the same extent as all other documents and instruments
constituting a part thereof.
Notwithstanding the foregoing paragraph or any other provision of
this Agreement, a Servicer shall not be deemed to be in default, breach or any
other violation of its obligations hereunder by reason of any assumption of a
Mortgage Loan by operation of law or by the terms of the Mortgage Note or any
assumption which such Servicer may be restricted by law from preventing, for any
reason whatsoever. For purposes of this Section 3.14, the term "assumption" is
deemed to also include a sale (of the Mortgaged Property) subject to the
Mortgage that is not accompanied by an assumption or substitution of liability
agreement.
Section 3.15 Realization upon Defaulted Mortgage Loans. Each
Servicer shall use its best efforts, consistent with Accepted Servicing
Practices, to foreclose upon or otherwise comparably convert (which may include
an acquisition of REO Property) the ownership of properties securing such of the
Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments
pursuant to Section 3.07, and which are not released from this Agreement
pursuant to any other provision hereof. Each Servicer shall use reasonable
efforts to realize upon such defaulted Mortgage Loans in such manner as will
maximize the receipt of principal and interest by the Securities Administrator,
taking into account, among other things, the timing of foreclosure proceedings;
provided, however with respect to any Second Lien Mortgage Loan, if, after such
Mortgage Loan becomes 180 days or more delinquent, Xxxxxx determines that a
significant net recovery is not possible through foreclosure, such Mortgage Loan
may be charged off and the Mortgage Loan will be treated as a Liquidated
Mortgage Loan giving rise to a Realized Loss. The foregoing is subject to the
provisions that, in any case in which a Mortgaged Property shall have suffered
damage from an uninsured cause, a Servicer shall not be required to expend its
own funds toward the restoration of such property unless it shall determine in
its sole discretion (i) that such restoration will increase the net proceeds of
liquidation of the related Mortgage Loan to the Securities Administrator, after
reimbursement to itself for such expenses, and (ii) that such expenses will be
recoverable by such Servicer through Insurance Proceeds, Condemnation Proceeds
or Liquidation Proceeds from the related Mortgaged Property, as contemplated in
Section 3.11. Each Servicer shall be responsible for all other costs and
expenses incurred by it in any such proceedings; provided, however, that it
shall be entitled to reimbursement thereof from the related property, as
contemplated in Section 3.11. In circumstances where Xxxxxx determines that it
would be uneconomical to foreclose on the related Mortgaged Property, Xxxxxx may
write off the entire outstanding principal balance of the related Second Lien
Mortgage Loan as bad debt.
In the event that the related First Lien Mortgage Loan is not being
serviced by such Servicer, such Servicer shall have no liability for any losses
resulting from a foreclosure on a Second Lien Mortgage Loan in connection with
the foreclosure on the related First Lien Mortgage Loan for which the related
First Lien Mortgage Loan is not included in the Trust Fund where such Servicer
did not receive notice or otherwise had no actual knowledge regarding such
foreclosure on the related First Lien Mortgage Loan; provided, however, if such
Servicer is either notified or has actual knowledge that any holder of a First
Lien Mortgage Loan intends to accelerate the obligations secured by the First
Lien Mortgage Loan, or that any such holder intends to declare a default under
the mortgage or promissory note secured thereby, or has filed or intends to file
an election to have the related Mortgaged Property sold or foreclosed, such
Servicer shall take, on behalf of the Trust, whatever actions are necessary to
protect the interests of the Trust in accordance with Accepted Servicing
Practices and the REMIC Provisions. No Servicer shall be required to make a
Servicing Advance pursuant to Section 4.01 with respect thereto except to the
extent that it determines in its reasonable good faith judgment that such
advance would be recoverable from Liquidation Proceeds on the related Second
Lien Mortgage Loan, that a significant net recovery is possible through
foreclosure, and in no event in an amount that is greater than the then
outstanding principal balance of the related Second Lien Mortgage Loan. The
applicable Servicer shall thereafter take such action as is reasonably necessary
to recover any amount so advanced and to otherwise reimburse itself as a
Servicing Advance from the Collection Account pursuant to Section 3.11.
The proceeds of any Liquidation Event or REO Disposition, as well as
any recovery resulting from a partial collection of Insurance Proceeds,
Condemnation Proceeds or Liquidation Proceeds or any income from an REO
Property, will be applied in the following order of priority: first, to
reimburse such Servicer or any Subservicer for any related unreimbursed
Servicing Advances, pursuant to Section 3.11 or 3.17; second, to accrued and
unpaid interest on the Mortgage Loan or REO Imputed Interest, at the Mortgage
Interest Rate, to the date of the liquidation or REO Disposition, or to the Due
Date prior to the Remittance Date on which such amounts are to be distributed if
not in connection with a Liquidation Event or REO Disposition; third, to
reimburse such Servicer for any related unreimbursed P&I Advances, pursuant to
Section 3.11; and fourth, as a recovery of principal of the Mortgage Loan. If
the amount of the recovery so allocated to interest is less than a full recovery
thereof, that amount will be allocated as follows: first, to unpaid Servicing
Fees; and second, as interest at the Mortgage Interest Rate (net of the
Servicing Fee Rate). The portion of the recovery so allocated to unpaid
Servicing Fees shall be reimbursed to such Servicer or any Subservicer pursuant
to Section 3.11 or 3.17. The portions of the recovery so allocated to interest
at the Mortgage Interest Rate (net of the Servicing Fee Rate) and to principal
of the Mortgage Loan shall be applied as follows: first, to reimburse such
Servicer or any Subservicer for any related unreimbursed Servicing Advances in
accordance with Section 3.11 or 3.17, and second, to the Securities
Administrator in accordance with the provisions of Section 4.02, subject to the
last paragraph of Section 3.17 with respect to certain excess recoveries from an
REO Disposition.
Notwithstanding anything to the contrary contained herein, in
connection with a foreclosure or acceptance of a deed in lieu of foreclosure, in
the event a Servicer has received actual notice of, or has actual knowledge of
the presence of, hazardous or toxic substances or wastes on the related
Mortgaged Property, or if the Trustee or the Master Servicer otherwise requests,
such Servicer shall cause an environmental inspection or review of such
Mortgaged Property to be conducted by a qualified inspector. Upon completion of
the inspection, such Servicer shall promptly provide the Trustee, the Master
Servicer and the Depositor, with a written report of the environmental
inspection.
After reviewing the environmental inspection report, the applicable
Servicer shall determine consistent with Accepted Servicing Practices how to
proceed with respect to the Mortgaged Property. In the event (a) the
environmental inspection report indicates that the Mortgaged Property is
contaminated by hazardous or toxic substances or wastes and (b) the applicable
Servicer determines, consistent with Accepted Servicing Practices, to proceed
with foreclosure or acceptance of a deed in lieu of foreclosure, such Servicer
shall be reimbursed for all reasonable costs associated with such foreclosure or
acceptance of a deed in lieu of foreclosure and any related environmental
clean-up costs, as applicable, from the related Liquidation Proceeds, or if the
Liquidation Proceeds are insufficient to fully reimburse such Servicer, such
Servicer shall be entitled to be reimbursed from amounts in the Collection
Account pursuant to Section 3.11. In the event the applicable Servicer
determines not to proceed with foreclosure or acceptance of a deed in lieu of
foreclosure, such Servicer shall be reimbursed from general collections for all
Servicing Advances made with respect to the related Mortgaged Property from the
Collection Account pursuant to Section 3.11. The Trustee shall not be
responsible for any determination made by the applicable Servicer pursuant to
this paragraph or otherwise.
Section 3.16 Release of Mortgage Files. (a) Upon the payment in full
of any Mortgage Loan, or the receipt by a Servicer of a notification that
payment in full shall be escrowed in a manner customary for such purposes, such
Servicer will, within five (5) Business Days of the payment in full, notify the
applicable Custodian by a certification (which certification shall include a
statement to the effect that all amounts received or to be received in
connection with such payment which are required to be deposited in the
Collection Account pursuant to Section 3.10 have been or will be so deposited)
of a Servicing Officer and shall request delivery to it of the Custodial File by
completing a Request for Release in the form of Exhibit L hereto to the
applicable Custodian. Upon receipt of such certification and Request for
Release, the applicable Custodian shall promptly release the related Custodial
File to such Servicer within three (3) Business Days. No expenses incurred in
connection with any instrument of satisfaction or deed of reconveyance shall be
chargeable to the Collection Account.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan, including, for this purpose, collection under
any Insurance Policy relating to the Mortgage Loans, each Custodian shall, upon
request of such Servicer and delivery to the applicable Custodian, of a Request
for Release, release the related Custodial File to such Servicer, and the
Trustee shall, at the direction of such Servicer, execute such documents as
shall be necessary to the prosecution of any such proceedings and such Servicer
shall retain the Mortgage File in trust for the benefit of the Trustee. Such
Request for Release shall obligate the applicable Servicer to return each and
every document previously requested from the Custodial File to the applicable
Custodian when the need therefor by such Servicer no longer exists, unless the
Mortgage Loan has been liquidated and the Liquidation Proceeds relating to the
Mortgage Loan have been deposited in the Collection Account or the Mortgage File
or such document has been delivered to an attorney, or to a public trustee or
other public official as required by law, for purposes of initiating or pursuing
legal action or other proceedings for the foreclosure of the Mortgaged Property
either judicially or non judicially, and such Servicer has delivered to the
applicable Custodian a certificate of a Servicing Officer certifying as to the
name and address of the Person to which such Mortgage File or such document was
delivered and the purpose or purposes of such delivery. Upon receipt of a
certificate of a Servicing Officer stating that such Mortgage Loan was
liquidated and that all amounts received or to be received in connection with
such liquidation that are required to be deposited into the Collection Account
have been so deposited, or that such Mortgage Loan has become an REO Property, a
copy of the Request for Release shall be released by the applicable Custodian to
the applicable Servicer or its designee. Upon receipt of a Request for Release
under this Section 3.16, the applicable Custodian shall deliver the related
Custodial File to the requesting Servicer by regular mail or by overnight
courier, unless a Servicer requests that the applicable Custodian deliver such
Custodial File to such Servicer by overnight courier (in which case such
delivery shall be at the applicable Servicer's expense); provided, however, that
in the event such Servicer has not previously received copies of the relevant
Mortgage Loan Documents necessary to service the related Mortgage Loan in
accordance with Accepted Servicing Practices, the Depositor shall use reasonable
efforts to cause the Sponsor to reimburse such Servicer for any overnight
courier charges incurred for the requested Custodial Files.
Upon written certification of a Servicing Officer, the Trustee shall
execute and deliver to the applicable Servicer copies of any court pleadings,
requests for trustee's sale or other documents reasonably necessary to the
foreclosure or trustee's sale in respect of a Mortgaged Property or to any legal
action brought to obtain judgment against any Mortgagor on the Mortgage Note or
Mortgage or to obtain a deficiency judgment, or to enforce any other remedies or
rights provided by the Mortgage Note or Mortgage or otherwise available at law
or in equity, or shall exercise and deliver to such Servicer a power of attorney
sufficient to authorize such Servicer to execute such documents on its behalf.
Each such certification shall include a request that such pleadings or documents
be executed by the Trustee and a statement as to the reason such documents or
pleadings are required and that the execution and delivery thereof by the
Trustee will not invalidate or otherwise affect the lien of the Mortgage, except
for the termination of such a lien upon completion of the foreclosure or
trustee's sale.
Section 3.17 Title, Conservation and Disposition of REO Property.
(a) This Section shall apply only to REO Properties acquired for the account of
the Trustee for the benefit of the Certificateholders and shall not apply to any
REO Property relating to a Mortgage Loan which was purchased or repurchased from
the Trustee pursuant to any provision hereof. In the event that title to any
such REO Property is acquired, the applicable Servicer shall cause the deed or
certificate of sale to be issued in the name of the Trustee, on behalf of the
Certificateholders, or the Trustee's nominee.
(b) Each Servicer shall manage, conserve, protect and operate each
REO Property for the Trustee for the benefit of the Certificateholders solely
for the purpose of its prompt disposition and sale. Each Servicer, either itself
or through an agent selected by such Servicer, shall manage, conserve, protect
and operate the REO Property in the same manner that it manages, conserves,
protects and operates other foreclosed property for its own account, and in the
same manner that similar property in the same locality as the REO Property is
managed. Each Servicer shall attempt to sell the same (and may temporarily rent
the same for a period not greater than one year, except as otherwise provided
below) on such terms and conditions as such Servicer deems to be in the best
interest of the Master Servicer. Each Servicer shall notify the Master Servicer
from time to time as to the status of each REO Property.
(c) Each Servicer shall use its best efforts to dispose of the REO
Property as soon as possible (subject to the Master Servicer's right to veto any
proposed sale of REO Property) and shall sell such REO Property in any event
within three years after title has been taken to such REO Property, unless such
Servicer determines, and gives an appropriate notice to the Trustee and the
Master Servicer to such effect, that a longer period is necessary for the
orderly liquidation of such REO Property. If a period longer than three years is
permitted under the foregoing sentence and is necessary to sell any REO
Property, such Servicer shall report monthly to the Securities Administrator and
the Master Servicer as to the progress being made in selling such REO Property.
Notwithstanding its veto rights, the Trustee has no obligation with respect to
REO Dispositions.
(d) Each Servicer shall segregate and hold all funds collected and
received in connection with the operation of any REO Property separate and apart
from its own funds and general assets and shall deposit such funds in the
Collection Account.
(e) Each Servicer shall deposit net of reimbursement to such
Servicer for any related outstanding Servicing Advances and unpaid Servicing
Fees provided in Section 3.11, or cause to be deposited, on a daily basis in the
Collection Account all revenues received with respect to the related REO
Property and shall withdraw therefrom funds necessary for the proper operation,
management and maintenance of the REO Property.
(f) Each Servicer, upon an REO Disposition, shall be entitled to
reimbursement for any related unreimbursed Servicing Advances as well as any
unpaid Servicing Fees from proceeds received in connection with the REO
Disposition, as further provided in Section 3.11.
(g) Any net proceeds from an REO Disposition which are in excess of
the unpaid principal balance of the related Mortgage Loan plus all unpaid REO
Imputed Interest thereon through the date of the REO Disposition shall be
retained by the applicable Servicer as additional servicing compensation.
(h) Each Servicer shall use its reasonable best efforts, to sell, or
cause the Subservicer to sell, any REO Property as soon as possible, but in no
event later than the conclusion of the third calendar year beginning after the
year of its acquisition by the REMIC unless (i) such Servicer applies for an
extension of such period from the Internal Revenue Service pursuant to the REMIC
Provisions and Code Section 856(e)(3), in which event such REO Property shall be
sold within the applicable extension period, or (ii) such Servicer, at its
expense, obtains for and delivers to the Trustee and the Master Servicer an
Opinion of Counsel, addressed to the Depositor, the Trustee, the Master Servicer
and such Servicer, to the effect that the holding by the Pooling-Tier REMIC-1 of
such REO Property subsequent to such period will not result in the imposition of
taxes on "prohibited transactions" as defined in Section 860F of the Code or
cause any Trust REMIC to fail to qualify as a REMIC under the REMIC Provisions
or comparable provisions of relevant state laws at any time. Each Servicer shall
manage, conserve, protect and operate each REO Property serviced by such
Servicer for the Trustee solely for the purpose of its prompt disposition and
sale in a manner which does not cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) or result in the
receipt by the Pooling-Tier REMIC-1 of any "income from non-permitted assets"
within the meaning of Section 860F(a)(2)(B) of the Code or any "net income from
foreclosure property" which is subject to taxation under Section 860G(a)(1) of
the Code. Pursuant to its efforts to sell such REO Property, the applicable
Servicer shall either itself or through an agent selected by such Servicer
protect and conserve such REO Property in the same manner and to such extent as
is customary in the locality where such REO Property is located and may,
incident to its conservation and protection of the interests of the Trustee on
behalf of the Certificateholders, rent the same, or any part thereof, as such
Servicer deems to be in the best interest of the Trustee on behalf of the
Certificateholders for the period prior to the sale of such REO Property;
provided, however, that any rent received or accrued with respect to such REO
Property qualifies as "rents from real property" as defined in Section 856(d) of
the Code.
Section 3.18 Notification of Adjustments. With respect to each
Adjustable Rate Mortgage Loan, the applicable Servicer shall adjust the Mortgage
Interest Rate on the related Adjustment Date and shall adjust the Scheduled
Payment on the related mortgage payment adjustment date, if applicable, in
compliance with the requirements of applicable law and the related Mortgage and
Mortgage Note. In the event that an Index becomes unavailable or otherwise
unpublished, the related Servicer shall select a comparable alternative index
over which it has no direct control and which is readily verifiable. Each
Servicer shall execute and deliver any and all necessary notices required under
applicable law and the terms of the related Mortgage Note and Mortgage regarding
the Mortgage Interest Rate and Scheduled Payment adjustments. Each Servicer
shall promptly, upon written request therefor, deliver to the Master Servicer
such notifications and any additional applicable data regarding such adjustments
and the methods used to calculate and implement such adjustments. Upon the
discovery by a Servicer or the receipt of notice from the Master Servicer that a
Servicer has failed to adjust a Mortgage Interest Rate or Scheduled Payment in
accordance with the terms of the related Mortgage Note, such Servicer shall
deposit in the Collection Account from its own funds the amount of any interest
loss caused as such interest loss occurs.
Section 3.19 Access to Certain Documentation and Information
Regarding the Mortgage Loans. The applicable Servicer shall provide, or cause
the Subservicer to provide, to the Depositor, the Trustee, the OTS or the FDIC
and the examiners and supervisory agents thereof access to the documentation
regarding the Mortgage Loans in its possession required by applicable
regulations of the OTS. Such access shall be afforded without charge, but only
upon reasonable and prior written request and during normal business hours at
the offices of the applicable Servicer or any Subservicer. Nothing in this
Section shall derogate from the obligation of any such party to observe any
applicable law prohibiting disclosure of information regarding the Mortgagors
and the failure of any such party to provide access as provided in this Section
as a result of such obligation shall not constitute a breach of this Section.
Section 3.20 Documents, Records and Funds in Possession of the
Servicers to Be Held for the Securities Administrator for the Benefit of the
Trustee Each Servicer shall account fully to the Securities Administrator on
behalf of the Trustee for any funds received by such Servicer or which otherwise
are collected by such Servicer as Liquidation Proceeds, Condemnation Proceeds or
Insurance Proceeds in respect of any Mortgage Loan. All Mortgage Files and funds
collected or held by, or under the control of, a Servicer in respect of any
Mortgage Loans, whether from the collection of principal and interest payments
or from Liquidation Proceeds, including, but not limited to, any funds on
deposit in the Collection Account, shall be held by such Servicer for and on
behalf of the Trustee on behalf of the Certificateholders and shall be and
remain the sole and exclusive property of the Trustee, subject to the applicable
provisions of this Agreement. Each Servicer also agrees that it shall not
create, incur or subject any Mortgage File or any funds that are deposited in
the Collection Account, the Distribution Account or any Escrow Account, or any
funds that otherwise are or may become due or payable to the Securities
Administrator on behalf of the Trustee for the benefit of the
Certificateholders, to any claim, lien, security interest, judgment, levy, writ
of attachment or other encumbrance, or assert by legal action or otherwise any
claim or right of setoff against any Mortgage File or any funds collected on, or
in connection with, a Mortgage Loan, except, however, that such Servicer shall
be entitled to set off against and deduct from any such funds any amounts that
are properly due and payable to such Servicer under this Agreement.
Section 3.21 Servicing Compensation. (a) As compensation for its
activities hereunder, each Servicer shall, with respect to each Mortgage Loan,
be entitled to retain from deposits to the Collection Account and from
Liquidation Proceeds, Insurance Proceeds, and Condemnation Proceeds related to
such Mortgage Loan, the Servicing Fee with respect to each Mortgage Loan (less
any portion of such amounts retained by any Subservicer). In addition, each
Servicer shall be entitled to recover unpaid Servicing Fees out of related Late
Collections to the extent permitted in Section 3.11. The right to receive the
Servicing Fee may not be transferred in whole or in part except as provided in
Section 6.06 or in connection with the transfer of all of a Servicer's
responsibilities and obligations under this Agreement; provided, however, that
each Servicer may pay from the Servicing Fee any amounts due to a Subservicer
pursuant to a Subservicing Agreement entered into under Section 3.02.
(b) Additional servicing compensation in the form of assumption or
modification fees, late payment charges, NSF fees, reconveyance fees and other
similar fees and charges (other than Prepayment Premiums) shall be retained by a
Servicer only to the extent such fees or charges are received by such Servicer.
Each Servicer shall also be entitled pursuant to Section 3.09(b)(vi) and Section
3.11(a)(iv) to withdraw from the Collection Account, as additional servicing
compensation, interest or other income earned on deposits therein.
(c) Each Servicer shall be required to pay all expenses incurred by
it in connection with its servicing activities hereunder (including payment of
premiums for any blanket policy insuring against hazard losses pursuant to
Section 3.13, servicing compensation of the Subservicer to the extent not
retained by it and the fees and expenses of independent accountants and any
agents appointed by such Servicer), and shall not be entitled to reimbursement
therefor except as specifically provided in Section 3.11.
Section 3.22 Annual Statement as to Compliance. Each Servicer, the
Securities Administrator and the Master Servicer shall deliver or cause to be
delivered, and each Servicer shall cause each Subservicer engaged by such
Servicer to deliver or cause to be delivered to the Depositor, the Securities
Administrator, the Master Servicer, the Rating Agencies and the Trustee on or
before March 15th of each calendar year, commencing in 2007, an Officer's
Certificate stating, as to each signatory thereof, that (i) a review of the
activities of the Securities Administrator, the Master Servicer, the Trustee (in
its capacity as successor master servicer, if applicable), the Servicer or
Subservicer, as applicable, during the preceding calendar year and of its
performance under this Agreement, or the applicable Subservicing Agreement, as
the case may be, has been made under such officers' supervision, and (ii) to the
best of such officers' knowledge, based on such review, the Securities
Administrator, the Master Servicer, the Trustee (in its capacity as successor
master servicer, if applicable), such Servicer or Subservicer, as applicable,
has fulfilled all of its obligations under this Agreement or the applicable
Subservicing Agreement, as the case may be, in all material respects throughout
such year, or, if there has been a failure to fulfill any such obligation in any
material respect, specifying each such failure known to such officers and the
nature and status thereof. Promptly after receipt of each such Officer's
Certificate, the Depositor shall review such Officer's Certificate and, if
applicable, consult with the applicable Servicer as to the nature of any
defaults by the applicable Servicer or any related Subservicer in the
fulfillment of any of a Servicer's or Subservicer's obligations. The obligations
of the Securities Administrator, the Master Servicer, the Trustee (in its
capacity as successor master servicer, if applicable), each Servicer or
Subservicer under this Section apply to each Servicer and Subservicer that
serviced a Mortgage Loan during the applicable period, whether or not such
Servicer or Subservicer is acting as a Servicer or Subservicer, as applicable,
at the time such Officer's Certificate is required to be delivered. None of the
Securities Administrator, the Master Servicer, the Trustee (in its capacity as
successor master servicer, if applicable), the Servicers or Subservicer shall be
required to cause the delivery of any Officer's Certificate required by this
Section in any given year so long as it has received written confirmation from
the Depositor that a Form 10-K is not required to be filed in respect of the
Trust for the preceding calendar year.
Section 3.23 Annual Reports on Assessment of Compliance with
Servicing Criteria; Annual Independent Public Accountants' Attestation Report(a)
(a) Not later than March 15th of each calendar year commencing in 2007 (and with
respect to each Custodian, only until a Form 15 Suspension Notice has been
filed), each Servicer, the Securities Administrator, the Master Servicer, each
Custodian and the Trustee (in its capacity as successor master servicer, if
applicable) each shall deliver, and each Servicer shall cause each Subservicer
engaged by such Servicer, and each Servicer, the Securities Administrator, the
Master Servicer and the Trustee (in its capacity as successor master servicer,
if applicable) shall cause each Subcontractor utilized by such Servicer (or by
any such Subservicer), the Master Servicer, the Securities Administrator or the
Trustee (in its capacity as successor master servicer, if applicable), as
applicable, and determined by such Servicer, the Master Servicer, the Securities
Administrator or the Trustee (in its capacity as successor master servicer, if
applicable), as applicable, pursuant to Section 3.02(e) to be "participating in
the servicing function" within the meaning of Item 1122 of Regulation AB (in
each case, a "Servicing Function Participant"), to deliver, each at its own
expense, to the Depositor and the Securities Administrator, a report on an
assessment of compliance with the Servicing Criteria applicable to it that
contains (A) a statement by such party of its responsibility for assessing
compliance with the Servicing Criteria applicable to it, (B) a statement that
such party used the Servicing Criteria to assess compliance with the applicable
Servicing Criteria, (C) such party's assessment of compliance with the
applicable Servicing Criteria as of and for the period ending the end of the
fiscal year covered by the Form 10-K required to be filed pursuant to Section
8.12, including, if there has been any material instance of noncompliance with
the applicable Servicing Criteria, a discussion of each such failure and the
nature and status thereof, and (D) a statement that a registered public
accounting firm has issued an attestation report on such Person's assessment of
compliance with the applicable Servicing Criteria as of and for such period.
Each such assessment of compliance report shall be addressed to the Depositor
and signed by an authorized officer of the applicable company, and shall address
each of the applicable Servicing Criteria set forth on Exhibit T hereto, or as
set forth in the notification furnished to the Depositor and the Securities
Administrator pursuant to Section 3.23(c). The Servicers, the Securities
Administrator, the Master Servicer, the Trustee (in its capacity as successor
master servicer, if applicable) and the Custodian hereby acknowledge and agree
that their respective assessments of compliance will cover the items identified
on Exhibit T hereto as being covered by such party. The parties to this
Agreement acknowledge that where a particular Servicing Criteria has multiple
components, each party's assessment of compliance (and related attestation of
compliance) will relate only to those components that are applicable to such
party. Promptly after receipt of each such report on assessment of compliance,
(i) the Depositor shall review each such report and, if applicable, consult with
the applicable Servicer, the Securities Administrator, the Master Servicer, the
Trustee (in its capacity as successor master servicer, if applicable) or the
Custodian as to the nature of any material instance of noncompliance with the
Servicing Criteria applicable to it (and each Subservicer or Servicing Function
Participant engaged or utilized by the related Servicer, such Subservicer or the
Trustee (in its capacity as successor master servicer, if applicable), as
applicable), as the case may be. No Subcontractor engaged by a Servicer, the
Securities Administrator or the Master Servicer shall be required to deliver any
such assessments required by this paragraph in any given year so long as it has
received written confirmation from the Depositor that a Form 10-K is not
required to be filed in respect of the Trust for the preceding calendar year.
(b) Not later than March 15th of each calendar year, commencing in
2007 (and with respect to each Custodian, only until a Form 15 Suspension Notice
has been filed), each Servicer, the Securities Administrator, the Master
Servicer, the Trustee (in its capacity as successor master servicer, if
applicable) and each Custodian shall cause, and each Servicer, the Securities
Administrator and the Master Servicer shall cause each Subservicer engaged by
such Servicer and such Servicer, the Securities Administrator and the Master
Servicer shall cause each Servicing Function Participant utilized by the
Securities Administrator, the Master Servicer or such Servicer, as applicable
(or by any Subservicer engaged by such Servicer), to cause, each at its own
expense, a registered public accounting firm (which may also render other
services to such party) and that is a member of the American Institute of
Certified Public Accountants to furnish a report to the Securities Administrator
and the Depositor, with a copy to the Rating Agencies, to the effect that (i) it
has obtained a representation regarding certain matters from the management of
such Person, which includes an assertion that such Person has complied with the
Servicing Criteria applicable to it pursuant to Section 3.23(a) and (ii) on the
basis of an examination conducted by such firm in accordance with standards for
attestation engagements issued or adopted by the PCAOB, that attests to and
reports on such Person's assessment of compliance with the Servicing Criteria
applicable to it. In the event that an overall opinion cannot be expressed, such
registered public accounting firm shall state in such report why it was unable
to express such an opinion. Each such related accountant's attestation report
shall be made in accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X
under the Securities Act and the Exchange Act. Such report must be available for
general use and not contain restricted use language. Promptly after receipt of
each such accountants' attestation report, the Depositor shall review the report
and, if applicable, consult with the applicable Servicer, the Securities
Administrator, the Master Servicer, the Trustee (in its capacity as successor
master servicer, if applicable) or the Custodian as to the nature of any
defaults by the applicable Servicer, the Securities Administrator, the Master
Servicer, the Trustee (in its capacity as successor master servicer, if
applicable) or the Custodian (and each Subservicer or Servicing Function
Participant engaged or utilized by the applicable Servicer, the Master Servicer,
Master Servicer and Trustee (in its capacity as successor master servicer, if
applicable), as applicable, or by any Subservicer engaged by a Servicer), as the
case may be, in the fulfillment of any of such Servicers', the Securities
Administrator's, the Master Servicer's, the Trustee's (in its capacity as
successor master servicer, if applicable), the Custodian's or the applicable
Subservicer's or Servicing Function Participant's obligations hereunder or under
any applicable sub-servicing agreement. No Subcontractor engaged by a Servicer
shall be required to deliver any such attestation required by this paragraph in
any given year so long as it has received written confirmation from the
Depositor that a Form 10-K is not required to be filed in respect of the Trust
for the preceding calendar year.
(c) Unless previously provided under Section 3.02(e), no later than
March 1 of each fiscal year, commencing in 2007, each Servicer shall notify the
Securities Administrator, the Master Servicer and the Depositor as to the name
of each Subservicer engaged by it and each Servicing Function Participant
utilized by it and by each Subservicer engaged by it, and the Securities
Administrator and the Master Servicer shall notify the Depositor as to the name
of each Servicing Function Participant utilized by it, and each such notice will
specify what specific Servicing Criteria will be addressed in the report on
assessment of compliance prepared by such Servicing Function Participant in each
case, to the extent of any change from the prior year's notice, if any. When a
Servicer, the Securities Administrator or the Master Servicer submits its
assessment pursuant to Section 3.23(a), such Servicer, the Securities
Administrator and the Master Servicer, as applicable, will also at such time
include the assessment (and related attestation pursuant to Section 3.23(b)) of
each Servicing Function Participant utilized by it and by each Subservicer
engaged by it.
Section 3.24 Master Servicer to Act as Servicer. (a) In the event
that a Servicer shall for any reason no longer be a Servicer hereunder
(including by reason of an Event of Default), the Master Servicer or its
successor, subject to the rights of the Servicing Rights Pledgee (if any) under
Sections 6.06 and 7.02, shall thereupon assume all of the rights and obligations
of such Servicer hereunder arising thereafter (except that the Master Servicer
shall not be (i) liable for losses of the predecessor Servicer pursuant to
Section 3.10 or any acts or omissions of the predecessor Servicer hereunder,
(ii) obligated to make Advances if it is prohibited from doing so by applicable
law, (iii) obligated to effectuate repurchases or substitutions of Mortgage
Loans hereunder, including but not limited to repurchases or substitutions
pursuant to Section 2.03, (iv) responsible for expenses of such Servicer
pursuant to Section 2.03 or (v) deemed to have made any representations and
warranties of such Servicer hereunder). Any such assumption shall be subject to
Sections 6.06 and 7.02.
(b) Every Subservicing Agreement entered into by each Servicer shall
contain a provision giving the successor Servicer the option to terminate such
agreement in the event a successor Servicer is appointed.
(c) If the applicable Servicer shall for any reason no longer be a
Servicer (including by reason of any Event of Default), the Master Servicer (or
any other successor Servicer) may, at its option, succeed to any rights and
obligations of such Servicer under any Subservicing Agreement in accordance with
the terms thereof; provided, that the Master Servicer (or any other successor
Servicer) shall not incur any liability or have any obligations in its capacity
as successor Servicer under a Subservicing Agreement arising prior to the date
of such succession unless it expressly elects to succeed to the rights and
obligations of the applicable Servicer thereunder; and such Servicer shall not
thereby be relieved of any liability or obligations under the Subservicing
Agreement arising prior to the date of such succession.
(d) The applicable Servicer shall, upon request of the Master
Servicer, but at the expense of such Servicer, deliver to the assuming party all
documents and records relating to each Subservicing Agreement (if any) and the
Mortgage Loans then being serviced thereunder and an accounting of amounts
collected and held by it and otherwise use its best efforts to effect the
orderly and efficient transfer of the Subservicing Agreement to the assuming
party.
Section 3.25 Compensating Interest. The applicable Servicer shall
remit to the Securities Administrator on each Remittance Date an amount from its
own funds equal to Compensating Interest payable by such Servicer for such
Remittance Date.
Section 3.26 Credit Reporting; Xxxxx-Xxxxx-Xxxxxx Act. (a) With
respect to each Mortgage Loan, the applicable Servicer shall fully furnish, in
accordance with the Fair Credit Reporting Act and its implementing regulations,
accurate and complete information (e.g., favorable and unfavorable) on the
related Mortgagor credit files to Equifax, Experian and TransUnion Credit
Information Company (three of the national credit repositories), on a monthly
basis.
(b) Each Servicer shall comply with all provisions of the Privacy
Laws relating to the Mortgage Loans, the related borrowers and any "nonpublic
personal information" (as defined in the Privacy Laws) received by such Servicer
incidental to the performance of its obligations under this Agreement,
including, maintaining adequate information security procedures to protect such
nonpublic personal information and providing all privacy notices required by the
Privacy Laws.
Section 3.27 Excess Reserve Fund Account; Distribution Account. (a)
The Securities Administrator shall establish and maintain the Excess Reserve
Fund Account, on behalf of the Class X Certificateholders, to receive that
portion of the distributions on the Class X Interest up to an amount equal to
any Basis Risk Payments and to pay to the LIBOR Certificateholders any Basis
Risk Carry Forward Amounts (prior to using any Net Swap Receipts). For the
avoidance of doubt, any Basis Risk Carry Forward Amounts shall be paid to the
LIBOR Certificates first from the Excess Reserve Fund Account and then from the
Supplemental Interest Trust.
On each Distribution Date on which there exists a Basis Risk Carry
Forward Amount on any Class of LIBOR Certificates, the Securities Administrator
shall (1) withdraw from the Distribution Account and deposit in the Excess
Reserve Fund Account, as set forth in Section 4.02(a)(iii)(L), the lesser of the
Class X Distributable Amount (to the extent remaining after the distributions
specified in Sections 4.02(a)(iii)(A)-(K) and without regard to the reduction in
clause (iii) of the definition thereof for any Basis Risk Carry Forward Amounts
or any Defaulted Swap Termination Payment) and the aggregate Basis Risk Carry
Forward Amount and (2) withdraw from the Excess Reserve Fund Account amounts
necessary to pay to such Class or Classes of LIBOR Certificates the applicable
Basis Risk Carry Forward Amounts. Such payments, along with payments from the
Supplemental Interest Trust, shall be allocated to those Classes based upon the
amount of Basis Risk Carry Forward Amount owed to each such Class and shall be
paid in the priority set forth in Section 4.02(a)(iii)(M). In the event that the
Class Certificate Balance of any Class of Certificates is reduced because of
Applied Realized Loss Amounts, the applicable Certificateholders will not be
entitled to receive Basis Risk Carry Forward Amounts on the written down amounts
on such Distribution Date or any future Distribution Dates (except to the extent
such Class Certificate Balance is increased as a result of any Subsequent
Recoveries), even if funds are otherwise available for distribution.
The Securities Administrator shall account for the Excess Reserve
Fund Account as an asset of a grantor trust under subpart E, Part I of
subchapter J of the Code and not as an asset of any Trust REMIC created pursuant
to this Agreement. The beneficial owners of the Excess Reserve Fund Account are
the Class X Certificateholders.
Any Basis Risk Carry Forward Amounts distributed by the Securities
Administrator to the LIBOR Certificateholders from the Excess Reserve Fund
Account shall be accounted for by the Securities Administrator, for federal
income tax purposes, as amounts paid first to the Holders of the Class X
Certificates (in respect of the Class X Interest) and then to the respective
Class or Classes of LIBOR Certificates. In addition, the Securities
Administrator shall account for the rights of Holders of each Class of LIBOR
Certificates to receive payments of Basis Risk Carry Forward Amounts from the
Excess Reserve Fund Account (along with payments of Basis Risk Carry Forward
Amounts and without duplication, Upper-Tier Carry Forward Amounts from the
Supplemental Interest Trust) as rights in a separate limited recourse interest
rate cap contract written by the Class X Certificateholders in favor of Holders
of each such Class.
Notwithstanding any provision contained in this Agreement, the
Securities Administrator shall not be required to make any payments from the
Excess Reserve Fund Account except as expressly set forth in this Section
3.27(a).
(b) The Securities Administrator shall establish and maintain the
Distribution Account on behalf of the Certificateholders. The Securities
Administrator shall, promptly upon receipt on the Business Day received, deposit
in the Distribution Account and retain therein the following:
(i) the aggregate amount remitted by such Servicer to the Securities
Administrator pursuant to Section 3.11;
(ii) any amount deposited by such Servicer pursuant to Section
3.12(b) in connection with any losses on Permitted Investments;
(iii) any amounts remitted by such Servicer to the Securities
Administrator in respect of Compensating Interest pursuant to Section
3.25; and
(iv) any other amounts deposited hereunder which are required to be
deposited in the Distribution Account.
In the event that the applicable Servicer shall remit any amount not
required to be remitted, such Servicer may at any time direct the Securities
Administrator in writing to withdraw such amount from the Distribution Account,
any provision herein to the contrary notwithstanding. Such direction may be
accomplished by delivering notice to the Securities Administrator, which
describes the amounts deposited in error in the Distribution Account. All funds
deposited in the Distribution Account shall be held by the Securities
Administrator in trust for the Certificateholders until disbursed in accordance
with this Agreement or withdrawn in accordance with Section 4.02.
(c) In order to comply with its duties under the USA Patriot Act of
2001, the Securities Administrator shall obtain and verify certain information
and documentation from the other parties to this Agreement including, but not
limited to, each such party's name, address, and other identifying information.
To help fight the funding of terrorism and money laundering
activities, Deutsche Bank will obtain, verify, and record information that
identifies individuals or entities that establish a relationship or open an
account with it. Deutsche Bank will ask for the name, address, tax
identification number and other information that will allow Deutsche Bank to
identify the individual or entity who is establishing the relationship or
opening the account. Deutsche Bank may also ask for formation documents such as
articles of incorporation, an offering memorandum, or other identifying
documents to be provided.
Section 3.28 Optional Purchase of Delinquent Mortgage Loans. The
Depositor, in its sole discretion, shall have the option, but shall not be
obligated, to purchase any 90+ Delinquent Mortgage Loans from the Trust Fund.
During the first ten (10) days after a Mortgage Loan becomes a 90+ Delinquent
Mortgage Loan, the Depositor shall have the exclusive option to purchase such
90+ Delinquent Mortgage Loan. The purchase price for any such Mortgage Loan
shall be 100% of the unpaid principal balance of such Mortgage Loan plus accrued
and unpaid interest on the related Mortgage Loan at the applicable Mortgage
Interest Rate, plus the amount of any unreimbursed Servicing Advances made by
such Servicer. Upon receipt of such purchase price, the applicable Servicer
shall provide to the applicable Custodian a Request for Release and the
applicable Custodian shall promptly release to the Depositor or such Servicer,
as applicable, the Mortgage File relating to the Mortgage Loan being
repurchased.
Section 3.29 Transfer of Servicing for Certain Mortgage Loans Prior
to the Servicing Transfer Date, the Depositor shall cause the applicable
Original Loan Seller to comply with each of the servicing transfer requirements
in accordance with customary industry procedures.
ARTICLE IV
DISTRIBUTIONS AND
ADVANCES BY THE SERVICER
Section 4.01 Advances. (a) The amount of P&I Advances to be made by
each Servicer for any Remittance Date shall equal, subject to Section 4.01(c),
the sum of (i) the aggregate amount of Scheduled Payments (with each interest
portion thereof net of the related Servicing Fee) due during the Due Period
immediately preceding such Remittance Date in respect of the related Mortgage
Loans, which Scheduled Payments were not received as of the close of business on
the related Determination Date, (ii) with respect to Second Lien Mortgage Loans
for which Scheduled Payments were not received as of the close of business on
the related Determination Date, the interest portion of the aggregate amount of
Scheduled Payments (net of the related Servicing Fee), due during the Due Period
immediately preceding such Remittance Date, (iii) with respect to each REO
Property, which REO Property was acquired during or prior to the related
Prepayment Period and as to which such REO Property an REO Disposition did not
occur during the related Prepayment Period, an amount equal to the REO Imputed
Interest that would have been due on the related Due Date in respect of the
related Mortgage Loans and (iv) with respect to each Mortgage Loan that required
a balloon payment on its final Due Date, a payment equal to the assumed monthly
payment that would have been due on the related Due Date based upon the original
principal amortization schedule for such balloon mortgage loan.
(b) On each Remittance Date, each Servicer shall remit in
immediately available funds to the Securities Administrator for deposit in the
Distribution Account an amount equal to the aggregate amount of P&I Advances, if
any, to be made in respect of the Mortgage Loans and REO Properties for the
related Remittance Date either (i) from its own funds or (ii) from the
Collection Account, to the Amounts Held for Future Distribution (in which case,
such Servicer will cause to be made an appropriate entry in the records of the
Collection Account that Amounts Held for Future Distribution have been, as
permitted by this Section 4.01, used by such Servicer in discharge of any such
P&I Advance) or (iii) in the form of any combination of (i) and (ii) aggregating
the total amount of P&I Advances to be made by such Servicer with respect to the
Mortgage Loans and REO Properties. Any Amounts Held for Future Distribution and
so used shall be appropriately reflected in such Servicer's records and replaced
by such Servicer by deposit in the Collection Account on or before any future
Remittance Date to the extent required. In addition, such Servicer shall have
the right to reimburse itself for any outstanding P&I Advance and Servicing
Advance made by it from its own funds from Amounts Held For Future Distribution.
Any funds so applied and transferred pursuant to the previous sentence shall be
replaced by such Servicer by deposit in the Collection Account no later than the
close of business on the related Remittance Date on which such funds are
required to be distributed pursuant to this Agreement. The applicable Servicer
may reimburse itself from the Collection Account for unreimbursed P&I Advances
and Xxxxxxxxx Advances made in connection with the modification of a Mortgage
Loan.
(c) The obligation of each Servicer to make such P&I Advances is
mandatory, notwithstanding any other provision of this Agreement but subject to
paragraph (d) below, and, with respect to any Mortgage Loan or REO Property,
shall continue until a Final Recovery Determination in connection therewith or
the removal thereof from coverage under this Agreement, except as otherwise
provided in this Section 4.01.
(d) Notwithstanding anything herein to the contrary, no P&I Advance
or Servicing Advance shall be required to be made hereunder by the Servicer if
such P&I Advance or Servicing Advance would, if made, constitute a
Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance. The
determination by any Servicer that it has made a Nonrecoverable P&I Advance or a
Nonrecoverable Servicing Advance or that any proposed P&I Advance or Servicing
Advance, if made, would constitute a Nonrecoverable P&I Advance or a
Nonrecoverable Servicing Advance, respectively, shall be evidenced by an
Officer's Certificate of such Servicer delivered to the Master Servicer. In
addition, the applicable Servicer shall not be required to make any P&I Advances
on Mortgage Loans subject to bankruptcy proceedings or for any Relief Act
Interest Shortfalls.
(e) Except as otherwise provided herein, each Servicer shall be
entitled to reimbursement pursuant to Section 3.11 for Servicing Advances from
recoveries from the related Mortgagor or from all Liquidation Proceeds and other
payments or recoveries (including Insurance Proceeds and Condemnation Proceeds)
with respect to the related Mortgage Loan.
(f) On each Remittance Date, the Master Servicer shall deposit in
the Distribution Account all funds remitted to it by the Servicer pursuant to
Sections 3.11(a)(i) and 3.25 and this Section 4.01. The Securities Administrator
may retain or withdraw from the Distribution Account, (i) the Master Servicing
Fee, (ii) amounts necessary to reimburse the Master Servicer or the Servicer for
any previously unreimbursed Advances and any Advances the Master Servicer deems
to be nonrecoverable from the related Mortgage Loan proceeds, (iii) an amount to
indemnify the Master Servicer or the Servicer for amounts due in accordance with
this Agreement, and (iv) any other amounts that each of the Master Servicer and
the Securities Administrator is entitled to receive hereunder for reimbursement,
indemnification or otherwise
Section 4.02 Priorities of Distribution. (a) On each Distribution
Date, the Securities Administrator shall allocate from amounts then on deposit
in the Distribution Account in the following order of priority and to the extent
of the Available Funds remaining and, on such Distribution Date, shall make
distributions on the Certificates in accordance with such allocation:
(i) to the Supplemental Interest Trust and to the holders of each
Class of LIBOR Certificates in the following order of priority:
(A) to the Supplemental Interest Trust, the sum of (x) all Net
Swap Payments and (y) any Swap Termination Payment owed to the Swap
Provider other than a Defaulted Swap Termination Payment;
(B) concurrently, (1) from the Interest Remittance Amount
related to the Group I Mortgage Loans, to the Class A-1
Certificates, the related Accrued Certificate Interest Distribution
Amounts and Unpaid Interest Amounts for the Class A-1 Certificates;
(2) from the Interest Remittance Amount related to the Group II
Mortgage Loans, pro rata (based on the Accrued Certificate Interest
Distribution Amounts and Unpaid Interest Amounts distributable to
the Class A-2A, Class A-2B, Class A-2C and Class A-2D Certificates)
to the Class A-2A, Class A-2B, Class A-2C and Class A-2D
Certificates, the related Accrued Certificate Interest Distribution
Amounts and Unpaid Interest Amounts for the Class A-2A, Class A-2B,
Class A-2C and Class A-2D Certificates; (3) provided, that if the
Interest Remittance Amount for either Loan Group is insufficient to
make the related payments set forth clause (1) or (2) above, any
Interest Remittance Amount relating to the other Loan Group
remaining after payment of the related Accrued Certificate Interest
Distribution Amounts and Unpaid Interest Amounts will be available
to cover that shortfall;
(C) from any remaining Interest Remittance Amounts, to the
Class M-1 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(D) from any remaining Interest Remittance Amounts, to the
Class M-2 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(E) from any remaining Interest Remittance Amounts, to the
Class M-3 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(F) from any remaining Interest Remittance Amounts, to the
Class M-4 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(G) from any remaining Interest Remittance Amounts, to the
Class M-5 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(H) from any remaining Interest Remittance Amounts, to the
Class M-6 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(I) from any remaining Interest Remittance Amounts, to the
Class M-7 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(J) from any remaining Interest Remittance Amounts, to the
Class M-8 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(K) from any remaining Interest Remittance Amounts, to the
Class M-9 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(L) from any remaining Interest Remittance Amounts, to the
Class B-1 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class; and
(M) from any remaining Interest Remittance Amounts, to the
Class B-2 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class.
(ii) (A) on each Distribution Date (a) prior to the Stepdown Date or
(b) with respect to which a Trigger Event is in effect, to the holders of
the Class or Classes of LIBOR Certificates then entitled to distributions
of principal as set forth below, an amount equal to the Principal
Distribution Amount in the following order of priority:
(a) sequentially:
(x) concurrently to the Class R, Class RC and Class RX
Certificates, allocated pro rata, until their respective Class
Certificate Balances have been reduced to zero; and (y) to the Class
A Certificates, allocated as described in Section 4.02(c), until
their respective Class Certificate Balances are reduced to zero;
(b) sequentially, to the Class M-1, Class M-2, Class M-3,
Class M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class M-9,
Class B-1 and Class B-2 Certificates, in that order, until their
respective Class Certificate Balances are reduced to zero;
(B) on each Distribution Date (a) on and after the Stepdown Date
and (b) so long as a Trigger Event is not in effect, to the holders of the
Class or Classes of LIBOR Certificates then entitled to distributions of
principal as set forth below, an amount equal to the Principal
Distribution Amount in the following order of priority:
(a) the lesser of (x) the Principal Distribution Amount and
(y) the Class A Principal Distribution Amount to the Class A
Certificates, allocated as described in Section 4.02(c), until their
respective Class Certificate Balances are reduced to zero;
(b) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificates in clause (ii)(B)(a) above and (y) the Class M-1
Principal Distribution Amount, to the Class M-1 Certificates until
their Class Certificate Balance has been reduced to zero;
(c) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificates in clause (ii)(B)(a) above and to the Class M-1
Certificates in clause (ii)(B)(b) above, and (y) the Class M-2
Principal Distribution Amount, to the Class M-2 Certificates until
their Class Certificate Balance has been reduced to zero;
(d) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificates in clause (ii)(B)(a) above, to the Class M-1
Certificates in clause (ii)(B)(b) above and to the Class M-2
Certificates in clause (ii)(B)(c) above, and (y) the Class M-3
Principal Distribution Amount, to the Class M-3 Certificates until
their Class Certificate Balance has been reduced to zero;
(e) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificates in clause (ii)(B)(a) above, to the Class M-1
Certificates in clause (ii)(B)(b) above, to the Class M-2
Certificates in clause (ii)(B)(c) above and to the Class M-3
Certificates in clause (ii)(B)(d) above, and (y) the Class M-4
Principal Distribution Amount, to the Class M-4 Certificates until
their Class Certificate Balance has been reduced to zero;
(f) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificates in clause (ii)(B)(a) above, to the Class M-1
Certificates in clause (ii)(B)(b) above, to the Class M-2
Certificates in clause (ii)(B)(c) above, to the Class M-3
Certificates in clause (ii)(B)(d) above and to the Class M-4
Certificates in clause (ii)(B)(e) above, and (y) the Class M-5
Principal Distribution Amount, to the Class M-5 Certificates until
their Class Certificate Balance has been reduced to zero;
(g) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificates in clause (ii)(B)(a) above, to the Class M-1
Certificates in clause (ii)(B)(b) above, to the Class M-2
Certificates in clause (ii)(B)(c) above, to the Class M-3
Certificates in clause (ii)(B)(d) above, to the Class M-4
Certificates in clause (ii)(B)(e) above and to the Class M-5
Certificates in clause (ii)(B)(f) above, and (y) the Class M-6
Principal Distribution Amount, to the Class M-6 Certificates until
their Class Certificate Balance has been reduced to zero;
(h) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificates in clause (ii)(B)(a) above, to the Class M-1
Certificates in clause (ii)(B)(b) above, to the Class M-2
Certificates in clause (ii)(B)(c) above, to the Class M-3
Certificates in clause (ii)(B)(d) above, to the Class M-4
Certificates in clause (ii)(B)(e) above, to the Class M-5
Certificates in clause (ii)(B)(f) above and to the Class M-6
Certificates in clause (ii)(B)(g) above, and (y) the Class M-7
Principal Distribution Amount, to the Class M-7 Certificates until
their Class Certificate Balance has been reduced to zero;
(i) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificates in clause (ii)(B)(a) above, to the Class M-1
Certificates in clause (ii)(B)(b) above, to the Class M-2
Certificates in clause (ii)(B)(c) above, to the Class M-3
Certificates in clause (ii)(B)(d) above, to the Class M-4
Certificates in clause (ii)(B)(e) above, to the Class M-5
Certificates in clause (ii)(B)(f) above, to the Class M-6
Certificates in clause (ii)(B)(g) above and to the Class M-7
Certificates in clause (ii)(B)(h) above, and (y) the Class M-8
Principal Distribution Amount, to the Class M-8 Certificates until
their Class Certificate Balance has been reduced to zero;
(j) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificates in clause (ii)(B)(a) above, to the Class M-1
Certificates in clause (ii)(B)(b) above, to the Class M-2
Certificates in clause (ii)(B)(c) above, to the Class M-3
Certificates in clause (ii)(B)(d) above, to the Class M-4
Certificates in clause (ii)(B)(e) above, to the Class M-5
Certificates in clause (ii)(B)(f) above, to the Class M-6
Certificates in clause (ii)(B)(g) above, to the Class M-7
Certificates in clause (ii)(B)(h) above and to the Class M-8
Certificates in clause (ii)(B)(i) above, and (y) the Class M-9
Principal Distribution Amount, to the Class M-9 Certificates until
their Class Certificate Balance has been reduced to zero;
(k) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificates in clause (ii)(B)(a) above, to the Class M-1
Certificates in clause (ii)(B)(b) above, to the Class M-2
Certificates in clause (ii)(B)(c) above, to the Class M-3
Certificates in clause (ii)(B)(d) above, to the Class M-4
Certificates in clause (ii)(B)(e) above and to the Class M-5
Certificates in clause (ii)(B)(f) above, to the Class M-6
Certificates in clause (ii)(B)(g) above, to the Class M-7
Certificates in clause (ii)(B)(h) above, to the Class M-8
Certificates in clause (ii)(B)(i) above and to the Class M-9
Certificates in clause (ii)(B)(j) above, and (y) the Class B-1
Principal Distribution Amount, to the Class B-1 Certificates until
their Class Certificate Balance has been reduced to zero;
(l) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificates in clause (ii)(B)(a) above, to the Class M-1
Certificates in clause (ii)(B)(b) above, to the Class M-2
Certificates in clause (ii)(B)(c) above, to the Class M-3
Certificates in clause (ii)(B)(d) above, to the Class M-4
Certificates in clause (ii)(B)(e) above and to the Class M-5
Certificates in clause (ii)(B)(f) above, to the Class M-6
Certificates in clause (ii)(B)(g) above, to the Class M-7
Certificates in clause (ii)(B)(h) above, to the Class M-8
Certificates in clause (ii)(B)(i) above, to the Class M-9
Certificates in clause (ii)(B)(j) above, to the Class B-1
Certificates in clause (ii)(B)(k) above and (y) the Class B-2
Principal Distribution Amount, to the Class B-2 Certificates until
their Class Certificate Balance has been reduced to zero;
(iii) any amount remaining after the distributions in clauses
4.02(a)(i) and (ii) above shall be distributed in the following order of
priority:
(A) to the Class M-1 Certificates, any Unpaid Interest Amount
for such Class;
(B) to the Class M-2 Certificates, any Unpaid Interest Amount
for such Class;
(C) to the Class M-3 Certificates, any Unpaid Interest Amount
for such Class;
(D) to the Class M-4 Certificates, any Unpaid Interest Amount
for such Class;
(E) to the Class M-5 Certificates, any Unpaid Interest Amount
for such Class;
(F) to the Class M-6 Certificates, any Unpaid Interest Amount
for such Class;
(G) to the Class M-7 Certificates, any Unpaid Interest Amount
for such Class;
(H) to the Class M-8 Certificates, any Unpaid Interest Amount
for such Class;
(I) to the Class M-9 Certificates, any Unpaid Interest Amount
for such Class;
(J) to the Class B-1 Certificates, any Unpaid Interest Amount
for such Class;
(K) to the Class B-2 Certificates, any Unpaid Interest Amount
for such Class;
(L) to the Excess Reserve Fund Account, the amount of any
Basis Risk Payment (without regard to Net Swap Receipts) for such
Distribution Date;
(M) from funds on deposit in the Excess Reserve Fund Account
with respect to such Distribution Date, an amount equal to any Basis
Risk Carry Forward Amount with respect to the LIBOR Certificates for
such Distribution Date to such Classes in the same order and
priority as set forth in Section 4.02(a)(i), with the allocation to
the Class A Certificates being pro rata based on their respective
Basis Risk Carry Forward Amounts;
(N) to the Supplemental Interest Trust, the amount of any
Defaulted Swap Termination Payment;
(O) if a 40-Year Trigger Event is in effect, any remaining
amounts, first, to the Class A Certificates, allocated to those
Classes pursuant to Section 4.02(a)(iii)(c) below, and then
sequentially to the Class M-1, Class M-2, Class M-3, Class M-4,
Class M-5, Class M-6, Class M-7, Class M-8, Class M-9, Class B-1 and
Class B-2 Certificates, the lesser of (x) any remaining amounts and
(y) the amount necessary to increase the actual Overcollateralized
Amount for such Distribution Date so that a 40-Year Trigger Event is
no longer in effect, in each case, until their respective Class
Certificate Balances have been reduced to zero;
(P) to the Class X Certificates, the remainder of the Class X
Distributable Amount not distributed pursuant to Sections
4.02(a)(iii)(A)-(O);
(Q) to the Class RC Certificates, any remaining amount, in
respect of Pooling-Tier REMIC-1;
(R) to the Class R Certificates, any remaining amount, in
respect of Pooling-Tier REMIC-2, the Lower-Tier REMIC and the
Upper-Tier REMIC; and
(S) to the Class RX Certificates, any remaining amount, in
respect of the Class X REMIC.
Notwithstanding the foregoing, if the Stepdown Date is the date on
which the Class Certificate Balance of the Class A Certificates is reduced to
zero, any Principal Distribution Amount remaining after principal distributions
to the Class A Certificates pursuant to clause (ii)(A) above will be included as
part of the distributions pursuant to clause (ii)(B) above.
(b) On each Distribution Date, all amounts representing Prepayment
Premiums from the Mortgage Loans received during the related Prepayment Period
shall be distributed by the Securities Administrator to the holders of the Class
P Certificates.
(c) All principal distributions allocated to the Class A
Certificates on any Distribution Date shall be allocated among the Class A-1
Certificate Group and the Class A-2 Certificate Group based on the Class A
Principal Allocation Percentage for the Class A-1 Certificate Group and the
Class A-2 Certificate Group, as applicable. However, if the Class Certificate
Balances of the Class A Certificates in any Class A Certificate Group is reduced
to zero, then the remaining amount of principal distributions distributable to
the Class A Certificates in that Class A Certificate Group on that Distribution
Date, and the amount of principal distributions distributable on all subsequent
Distribution Dates, shall be distributed to the Class A Certificates of the
other Class A Certificate Group remaining Outstanding, in accordance with the
principal distribution allocations set forth in this Section 4.02(c), until
their respective Class Certificate Balances have been reduced to zero. Any
distributions of principal to the Class A-1 Certificate Group shall be made
first from Available Funds relating to the Group I Mortgage Loans. Any
distributions of principal to the Class A-2 Certificate Group shall be made
first from Available Funds relating to the Group II Mortgage Loans.
Any principal distributions allocated to the Class A-2 Certificate
Group are required to be distributed sequentially to the Class A-2A
Certificates, until their Class Certificate Balance has been reduced to zero,
then to the Class A-2B Certificates, until their Class Certificate Balance has
been reduced to zero, then to the Class A-2C Certificates, until their Class
Certificate Balance has been reduced to zero and then to the Class A-2D
Certificates, until their Class Certificate Balance has been reduced to zero.
Notwithstanding the allocation of principal to the Class A
Certificates described in the preceding paragraphs, from and after the
Distribution Date on which the aggregate Class Certificate Balances of the
Subordinated Certificates and the principal balance of the Class X Certificates
have been reduced to zero, any principal distributions allocated to the Class A
Certificates are required to be allocated pro rata to the Class A Certificates,
based on their respective Certificate Principal Balances.
(d) On any Distribution Date, any Relief Act Shortfalls and Net
Prepayment Interest Shortfalls for such Distribution Date shall be allocated by
the Securities Administrator as a reduction in the following order:
(1) First, to the portion of the Class X Distributable
Amount allocable to interest; and
(2) Second, pro rata, as a reduction of the Accrued
Certificate Interest Distribution Amount for the Class A,
Class M and Class B Certificates, based on the amount of
interest to which such Classes would otherwise be entitled.
Section 4.03 Monthly Statements to Certificateholders. (a) Not later
than each Distribution Date, the Securities Administrator shall make available
to each Certificateholder, the Master Servicer, the Servicers, the Depositor,
the Trustee and each Rating Agency a statement setting forth with respect to the
related distribution:
(i) the actual Distribution Date, the related Record Date, the
Interest Accrual Period(s) for each Class for such Distribution Date and
the LIBOR Determination Date for such Interest Accrual Period;
(ii) the amount of Available Funds;
(iii) the amount of Available Funds allocable to principal, the
Principal Remittance Amount (separately identifying the components
thereof) and the Principal Distribution Amount (separately identifying the
components thereof);
(iv) the amount of Available Funds allocable to interest and each
Interest Remittance Amount;
(v) the amount of any Unpaid Interest Amount for each Class included
in such distribution and any remaining Unpaid Interest Amounts after
giving effect to such distribution, any Basis Risk Carry Forward Amount
for each Class and the amount of such Basis Risk Carry Forward Amount
covered by withdrawals from the Excess Reserve Fund Account on such
Distribution Date;
(vi) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be distributable to
such Holders if there were sufficient funds available therefor, the amount
of the shortfall and the allocation of the shortfall as between principal
and interest, including any Basis Risk Carry Forward Amount not covered by
amounts in the Excess Reserve Fund Account;
(vii) the Class Certificate Balance of each Class of Certificates
before and after giving effect to the distribution of principal on such
Distribution Date;
(viii) the Pool Stated Principal Balance for the related
Distribution Date;
(ix) the amount of Expense Fees paid to or retained by the
Servicers, the Securities Administrator and the Master Servicer (stated
separately and in the aggregate) with respect to such Distribution Date;
(x) the Pass-Through Rate for each such Class of Certificates with
respect to such Distribution Date;
(xi) the amount of Advances included in the distribution on such
Distribution Date reported by the Servicers (and the Master Servicer as
successor servicer and any other successor servicer, if applicable) as of
the close of business on the Determination Date immediately preceding such
Distribution Date;
(xii) the number and aggregate outstanding principal balances of
Mortgage Loans (1) as to which the Scheduled Payment is delinquent 31 to
60 days, 61 to 90 days, and 90+ days, (2) that have become REO Property,
(3) that are in foreclosure and (4) that are in bankruptcy, in each case
as of the close of business on the last day of the related Due Period;
(xiii) for each of the preceding 12 calendar months, or all calendar
months since the related Cut-off Date, whichever is less, the aggregate
dollar amount of the Scheduled Payments (A) due on all Outstanding
Mortgage Loans on each of the Due Dates in each such month and (B)
delinquent 60 days or more on each of the Due Dates in each such month;
(xiv) with respect to any Mortgage Loans that became REO Properties
during the preceding calendar month, the aggregate number of such Mortgage
Loans and the aggregate outstanding principal balance of such Mortgage
Loans as of the close of business on the last day of the related Due
Period;
(xv) the total number and outstanding principal balance of any REO
Properties (and market value, if available) as of the close of business on
the last Business Day of the related Due Period;
(xvi) whether a Trigger Event has occurred and is continuing
(including the calculation demonstrating the existence of the Trigger
Event and the aggregate outstanding principal balance of all 60+ Day
Delinquent Mortgage Loans);
(xvii) the amount on deposit in the Excess Reserve Fund Account
(after giving effect to distributions on such Distribution Date);
(xviii) in the aggregate and for each Class of Certificates, the
aggregate amount of Applied Realized Loss Amounts incurred during the
preceding calendar month and aggregate Applied Realized Loss Amounts
through such Distribution Date;
(xix) the amount of any Net Monthly Excess Cash Flow on such
Distribution Date and the allocation of it to the Certificateholders with
respect to Unpaid Interest Amounts, Applied Realized Loss Amounts and
Basis Risk Carry Forward Amounts;
(xx) the amount of any Net Swap Payments, Net Swap Receipts, Swap
Termination Payments or Defaulted Swap Termination Payments;
(xxi) the LIBOR and Swap LIBOR rates (and the calculation thereof,
if applicable);
(xxii) the Overcollateralized Amount and Specified
Overcollateralized Amount;
(xxiii) Prepayment Charges collected or paid (pursuant to Section
3.07(a) by the Servicers;
(xxiv) the Cumulative Loss Percentage and the aggregate amount of
Realized Losses used to calculate the Cumulative Loss Percentage;
(xxv) the amount distributed on the Class X Certificates;
(xxvi) the amount of any Subsequent Recoveries for such Distribution
Date; and
(xxvii) the number of Mortgage Loans at the beginning and end of the
applicable reporting period, the pool factor (being the Stated Principal
Balance of the Mortgage Loans for the related Distribution Date divided by
the Cut-off Date Principal Balance), and the weighted average interest
rate, and weighted average remaining term.
In addition, each Form 10-D prepared and filed by the Securities
Administrator pursuant to Section 8.12 shall include the following information
with respect to the related distribution:
(i) material breaches of Mortgage Loan representations and
warranties of which the Securities Administrator has actual knowledge or
has received written notice; and
(ii) material breaches of any covenants under this Agreement of
which the Securities Administrator has actual knowledge or has received
written notice;
provided, that, if the Securities Administrator receives written notice of
events described in (i) and/or (ii) above from the Servicers, the Servicers
shall be responsible for providing information to the Securities Administrator
for inclusion in the applicable Form 10-D.
(b) The Securities Administrator's responsibility for providing the
above statement to the Certificateholders, each Rating Agency, the Master
Servicer, the Servicers and the Depositor is limited, if applicable, to the
availability, timeliness and accuracy of the information derived from the Master
Servicer and the Servicers. The Securities Administrator shall make available
the above statement via the Securities Administrator's internet website. The
Securities Administrator's website will initially be located at
xxxx://xxx.xxxxxxx.xxx and assistance in using the website can be obtained by
calling the Securities Administrator's customer service desk at (000) 000-0000.
A paper copy of the above statement will also be made available upon request.
The Securities Administrator shall make available to each Analytics
Company, either electronically or via the Securities Administrator's internet
website, each statement to Certificateholders prepared pursuant to this Section
4.03(a). The Securities Administrator and the applicable Servicer shall
cooperate in good faith with the Depositor to reconcile any discrepancies in
such statements, and the Securities Administrator shall make available via its
Internet website any corrections to such statements to each Analytics Company as
soon as reasonably practicable after the related Distribution Date.
(c) Upon request, within a reasonable period of time after the end
of each calendar year, the Securities Administrator shall cause to be furnished
to each Person who at any time during the calendar year was a Certificateholder,
a statement containing the information set forth in clauses (a)(i) and (a)(ii)
of this Section 4.03 aggregated for such calendar year or applicable portion
thereof during which such Person was a Certificateholder. Such obligation of the
Securities Administrator shall be deemed to have been satisfied to the extent
that substantially comparable information shall be provided by the Securities
Administrator pursuant to any requirements of the Code as from time to time in
effect.
(d) Not later than the Determination Date for each Distribution
Date, the applicable Servicer shall furnish to the Depositor with respect to
clause (i) below and the Securities Administrator with respect to clause (ii)
below, a monthly remittance advice statement (the "Servicer Remittance Report")
substantially similiar to the format set forth in Exhibit CC hereto, a monthly
defaulted loan report substantially similiar to the format set forth in Exhibit
DD hereto and a realized loss report substantially similiar to the format set
forth in Exhibit EE hereto (or in such other format mutually agreed to among the
Depositor, the Servicers, and the Master Servicer) relating to the period ending
on the last day of the preceding calendar month containing such information as
shall be reasonably requested (i) by the Depositor to enable the Depositor to
disclose "static pool information", as required by Item 1105 of Regulation AB,
with respect to the Mortgage Loans, and (ii) by the Securities Administrator to
enable the Securities Administrator to provide the reports required by Section
4.03(a) as to the accompanying remittance and the period ending on the close of
business on the last day of the related Prepayment Period. The applicable
Servicer shall concurrently deliver to the Depositor a data tape, in form and
substance reasonably satisfactory to the Depositor, containing the information
required pursuant to this Section 4.03(d) on a loan-by-loan basis for all of the
Mortgage Loans. The Depositor will use the information required pursuant to this
Section 4.03(d) in compliance with applicable law.
Each Servicer shall furnish to the Securities Administrator an
individual loan accounting report, as of the last Business Day of each month, to
document Mortgage Loan payment activity on an individual Mortgage Loan basis.
With respect to each month, the corresponding individual loan accounting report
(in electronic format) shall be received by the Securities Administrator no
later than the Reporting Date, which report shall, at a minimum, contain the
following:
(i) with respect to each Scheduled Payment, the amount of such
remittance allocable to principal (including a separate breakdown of any
Principal Prepayment, including the date of such prepayment, and any
Prepayment Premiums, along with a detailed report of interest on Principal
Prepayment amounts remitted in accordance with Section 3.25);
(ii) with respect to each Scheduled Payment, the amount of such
remittance allocable to interest;
(iii) the amount of servicing compensation received by such Servicer
during the prior distribution period;
(iv) the individual and aggregate Stated Principal Balance of the
Mortgage Loans;
(v) the aggregate of any expenses reimbursed to such Servicer during
the prior distribution period pursuant to Section 3.11;
(vi) the number and aggregate outstanding principal balances of
Mortgage Loans (a) delinquent 31 to 60 days, 61 to 90 days and 90+ days;
(b) as to which foreclosure or bankruptcy proceedings of the related
mortgagor have commenced; and (c) as to which REO Property has been
acquired;
(vii) each Mortgage Loan which has been altered, modified or varied
during such month, and the reason for such modification (i.e., extension
of maturity date, Mortgage Interest Rate);
(viii) with respect to each Liquidated Mortgage Loan, the amount of
any Realized Losses for such Mortgage Loan; and
(ix) any other information reasonably required by the Securities
Administrator to enable it to prepare the Monthly Statement referred to in
Section 4.03(a).
(e) For all purposes of this Agreement, with respect to any Mortgage
Loan, delinquencies shall be determined and reported based on the so-called
"OTS" methodology for determining delinquencies on mortgage loans similar to the
Mortgage Loans. By way of example, a Mortgage Loan would be delinquent with
respect to a Scheduled Payment due on a Due Date if such Scheduled Payment is
not made by the close of business on the Mortgage Loan's next succeeding Due
Date, and a Mortgage Loan would be more than 30-days Delinquent with respect to
such Scheduled Payment if such Scheduled Payment were not made by the close of
business on the Mortgage Loan's second succeeding Due Date. Each Servicer hereby
represents and warrants that, as of the Closing Date, such Servicer does not
have a safety and soundness regulator that requires such Servicer to conform to
any delinquency recognition policy.
Section 4.04 Certain Matters Relating to the Determination of LIBOR.
LIBOR shall be calculated by the Securities Administrator in accordance with the
definition of "LIBOR." Until all of the LIBOR Certificates are paid in full, the
Securities Administrator shall at all times retain at least four Reference Banks
for the purpose of determining LIBOR with respect to each LIBOR Determination
Date. The Securities Administrator initially shall designate the Reference Banks
(after consultation with the Depositor). Each "Reference Bank" shall be a
leading bank engaged in transactions in Eurodollar deposits in the international
Eurocurrency market, shall not control, be controlled by, or be under common
control with, the Securities Administrator and shall have an established place
of business in London. If any such Reference Bank should be unwilling or unable
to act as such or if the Securities Administrator should terminate its
appointment as Reference Bank, the Securities Administrator shall promptly
appoint or cause to be appointed another Reference Bank (after consultation with
the Depositor). The Securities Administrator shall have no liability or
responsibility to any Person for (i) the selection of any Reference Bank for
purposes of determining LIBOR or (ii) any inability to retain at least four
Reference Banks which is caused by circumstances beyond its reasonable control.
The Pass-Through Rate for each Class of LIBOR Certificates for each
Interest Accrual Period shall be determined by the Securities Administrator on
each LIBOR Determination Date so long as the LIBOR Certificates are Outstanding
on the basis of LIBOR and the respective formulae appearing in footnotes
corresponding to the LIBOR Certificates in the table relating to the
Certificates in the Preliminary Statement. The Securities Administrator shall
not have any liability or responsibility to any Person for its inability,
following a good-faith reasonable effort, to obtain quotations from the
Reference Banks or to determine the arithmetic mean referred to in the
definition of LIBOR, all as provided for in this Section 4.04 and the definition
of LIBOR. The establishment of LIBOR and each Pass-Through Rate for the LIBOR
Certificates by the Securities Administrator shall (in the absence of manifest
error) be final, conclusive and binding upon each Holder of a Certificate, the
Trustee and the Securities Administrator.
Section 4.05 Allocation of Applied Realized Loss Amounts. Any
Applied Realized Loss Amounts shall be allocated by the Securities Administrator
to the most junior Class of Subordinated Certificates then Outstanding in
reduction of the Class Certificate Balance thereof. In the event Applied
Realized Loss Amounts are allocated to any Class of LIBOR Certificates, their
Class Certificate Balances shall be reduced by the amount so allocated, and no
funds will be distributable with respect to the written down amounts (including
without limitation Basis Risk Carry Forward Amounts) or with respect to interest
on the written down amounts on that Distribution Date or any future Distribution
Dates, even if funds are otherwise available for distribution. Notwithstanding
the foregoing, the Class Certificate Balance of each Class of Subordinated
Certificates that has been previously reduced by Applied Realized Loss Amounts
will be increased, in order of seniority, by the amount of the Subsequent
Recoveries (but not in excess of the Applied Realized Loss Amount allocated to
the applicable Class of Subordinated Certificates).
Section 4.06 Supplemental Interest Trust. On the Closing Date, the
Securities Administrator shall establish and maintain in its name, a separate
non-interest bearing trust account for the benefit of the holders of the LIBOR
Certificates (the "Supplemental Interest Trust") as a part of the Trust Fund.
The Supplemental Interest Trust shall be an Eligible Account, and funds on
deposit therein shall be held separate and apart from, and shall not be
commingled with, any other moneys, including, without limitation, other moneys
of the Securities Administrator held pursuant to this Agreement.
On any Distribution Date, Swap Termination Payments, Net Swap
Payments owed to the Swap Provider and Net Swap Receipts for that Distribution
Date will be deposited into the Supplemental Interest Trust. Funds in the
Supplemental Interest Trust will be distributed in the following order of
priority:
(i) to the Swap Provider, the sum of (x) all Net Swap Payments and
(y) any Swap Termination Payment, other than a Defaulted Swap Termination
Payment, to the Swap Provider, if any, owed for that Distribution Date;
(ii) to the LIBOR Certificateholders, to pay Accrued Certificate
Interest Distribution Amounts (including for this purpose Upper-Tier
Carry-Forward Amounts not included in Basis Risk Carry Forward Amounts)
and, if applicable, any Unpaid Interest Amounts as described in Section
4.02(a)(i) and Section 4.02(a)(iii), to the extent unpaid from other
Available Funds;
(iii) to the LIBOR Certificateholders, to pay principal as described
in Section 4.02(a)(ii), but only to the extent necessary to restore the
Overcollateralized Amount to the Specified Overcollateralized Amount as a
result of current or previous Realized Losses not previously reimbursed,
after giving effect to payments and distributions from other Available
Funds;
(iv) to the LIBOR Certificateholders, to pay Unpaid Interest Amounts
and Basis Risk Carry Forward Amounts as described in Section 4.02(a)(iii),
to the extent unpaid from other Available Funds (including Basis Risk
Payments on deposit in the Excess Reserve Fund Account);
(v) to the Swap Provider, any Defaulted Swap Termination Payment
owed to the Swap Provider for that Distribution Date; and
(vi) to the holders of the Class X Certificates, any remaining
amounts.
Upon termination of the Trust, any amounts remaining in the
Supplemental Interest Trust shall be distributed pursuant to the priorities set
forth in this Section 4.06.
The Securities Administrator shall account for the Supplemental
Interest Trust as an asset of a grantor trust under subpart E, Part I of
subchapter J of the Code and not as an asset of any Trust REMIC created pursuant
to this Agreement. The beneficial owners of the Supplemental Interest Trust are
the Class X Certificateholders. For federal income tax purposes, Net Swap
Payments and Swap Termination Payments payable to the Swap Provider shall be
deemed to be paid to the Supplemental Interest Trust first, from the Class X
REMIC, by the Holder of the Class X Certificates (in respect of the Class IO
Interest and, if applicable, Class X Interest) and second, other than any
Defaulted Swap Termination Payment, from the Upper-Tier REMIC by the Holders of
the applicable Class or Classes of LIBOR Certificates (in respect of Class IO
Shortfalls) as and to the extent provided in Section 8.13.
Any Basis Risk Carry Forward Amounts and, without duplication,
Upper-Tier Carry Forward Amounts distributed by the Securities Administrator to
the LIBOR Certificateholders shall be accounted for by the Securities
Administrator, for federal income tax purposes, as amounts paid first to the
Holders of the Class X Certificates in respect of the Class X Interest and (to
the extent remaining after payments to the Swap Provider) the Class IO Interest
and then to the respective Class or Classes of LIBOR Certificates. In addition,
the Securities Administrator shall account for the rights of Holders of each
Class of LIBOR Certificates to receive payments of Basis Risk Carry Forward
Amounts and, without duplication, Upper-Tier Carry Forward Amounts from the
Supplemental Interest Trust (along with Basis Risk Carry Forward Amounts payable
from the Excess Reserve Fund Account) as rights in a separate limited recourse
interest rate cap contract written by the Class X Certificateholders in favor of
Holders of each such Class.
The Supplemental Interest Trust shall be an "outside reserve fund"
for federal income tax purposes and not an asset of any Trust REMIC.
Furthermore, the Holders of the Class X Certificates shall be the beneficial
owners of the Supplemental Interest Trust for all federal income tax purposes,
and shall be taxable on all income earned thereon.
With respect to the failure of the Swap Provider to perform any of
its obligations under the Interest Rate Swap Agreement, the breach by the Swap
Provider of any of its representations and warranties made pursuant to the
Interest Rate Swap Agreement, or the termination of the Interest Rate Swap
Agreement, the Securities Administrator shall send any notices and make any
demands, on behalf of the Trust, as are required under the Interest Rate Swap
Agreement. The Securities Administrator shall cause any replacement swap
provider to provide a copy of the related replacement interest rate swap
agreement to the Securities Administrator and the Depositor.
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates. The Certificates shall be
substantially in the forms attached hereto as exhibits. The Certificates shall
be issuable in registered form, in the minimum denominations, integral multiples
in excess thereof (except that one Certificate in each Class may be issued in a
different amount which must be in excess of the applicable minimum denomination)
and aggregate denominations per Class set forth in the Preliminary Statement.
The Depositor hereby directs the Securities Administrator to
register the Class P and Class X Certificates in the name of the Depositor or
its designee. On a date as to which the Depositor notifies the Securities
Administrator, the Securities Administrator shall transfer the Class X and Class
P Certificates in the name of the NIM Trustee, or such other name or names as
the Depositor shall request, and to deliver the Class X and Class P Certificates
to the NIM Trustee, or to such other Person or Persons as the Depositor shall
request.
Subject to Section 10.02 respecting the final distribution on the
Certificates, on each Distribution Date the Securities Administrator shall make
distributions to each Certificateholder of record on the preceding Record Date
either (x) by wire transfer in immediately available funds to the account of
such Holder at a bank or other entity having appropriate facilities therefor as
directed by that Certificateholder by written wire instructions provided to the
Securities Administrator or (y), in the event that no wire instructions are
provided to the Securities Administrator, by check mailed by first class mail to
such Certificateholder at the address of such Holder appearing in the
Certificate Register.
The Certificates shall be executed by manual or facsimile signature
on behalf of the Securities Administrator by an authorized officer. Certificates
bearing the manual or facsimile signatures of individuals who were, at the time
such signatures were affixed, authorized to sign on behalf of the Securities
Administrator shall bind the Securities Administrator, notwithstanding that such
individuals or any of them have ceased to be so authorized prior to the
authentication and delivery of any such Certificates or did not hold such
offices at the date of such Certificate. No Certificate shall be entitled to any
benefit under this Agreement, or be valid for any purpose, unless authenticated
by the Securities Administrator by manual signature, and such authentication
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly executed and delivered hereunder. All
Certificates shall be dated the date of their authentication. On the Closing
Date, the Securities Administrator shall authenticate the Certificates to be
issued at the direction of the Depositor or any Affiliate thereof.
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates. (a) The Securities Administrator shall maintain, or
cause to be maintained in accordance with the provisions of Section 5.06, a
Certificate Register for the Trust Fund in which, subject to the provisions of
subsections (b) and (c) below and to such reasonable regulations as it may
prescribe, the Securities Administrator shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
Upon surrender for registration of transfer of any Certificate, the Securities
Administrator shall execute and deliver, in the name of the designated
transferee or transferees, one or more new Certificates of the same Class and
aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged
for other Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Securities
Administrator. Whenever any Certificates are so surrendered for exchange, the
Securities Administrator shall execute, authenticate, and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive. Every Certificate presented or surrendered for registration of transfer
or exchange shall be accompanied by a written instrument of transfer in form
satisfactory to the Securities Administrator duly executed by the Holder thereof
or his attorney duly authorized in writing. In the event, the Depositor or an
Affiliate of the Depositor transfers the Class X Certificates, or a portion
thereof, to another Affiliate, it shall notify the Securities Administrator in
writing of the affiliated status of the transferee. The Securities Administrator
shall have no liability regarding the lack of notice with respect thereto.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or
exchange shall be cancelled and subsequently destroyed by the Securities
Administrator in accordance with the Securities Administrator's customary
procedures.
(b) No transfer of a Private Certificate shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under said Act and such state securities laws. Except
with respect to (i) the transfer of the Class X, Class P or a Residual
Certificate to the Depositor or an Affiliate of the Depositor, (ii) the transfer
of the Class X or Class P Certificates to the NIM Issuer or the NIM Trustee,
(iii) a transfer of the Class X or Class P Certificates from the NIM Issuer or
the NIM Trustee to the Depositor or an Affiliate of the Depositor or (iv) a
transfer of a Residual Certificate to a Servicer, an Affiliate of a Servicer, or
its designee (including, without limitation, an employee of such Servicer who is
an "accredited investor" as defined in Regulation D under the Securities Act),
in the event that a transfer of a Private Certificate which is a Physical
Certificate is to be made in reliance upon an exemption from the Securities Act
and such laws, in order to assure compliance with the Securities Act and such
laws, the Certificateholder desiring to effect such transfer shall certify to
the Securities Administrator in writing the facts surrounding the transfer in
substantially the form set forth in Exhibit I (the "Transferor Certificate") and
either (i) there shall be delivered to the Securities Administrator a letter in
substantially the form of Exhibit J (the "Rule 144A Letter") or Exhibit K (the
"Non-Rule 144A Investment Letter") or (ii) in the case of the Class X
Certificates, there shall be delivered to the Securities Administrator at the
expense of the transferor an Opinion of Counsel that such transfer may be made
without registration under the Securities Act. In the event that a transfer of a
Private Certificate which is a Book-Entry Certificate is to be made in reliance
upon an exemption from the Securities Act and such laws, in order to assure
compliance with the Securities Act and such laws, the Certificateholder desiring
to effect such transfer will be deemed to have made as of the transfer date each
of the certifications set forth in the Transferor Certificate in respect of such
Certificate and the transferee will be deemed to have made as of the transfer
date each of the certifications set forth in the Rule 144A Letter in respect of
such Certificate, in each case as if such Certificate were evidenced by a
Physical Certificate. A transferee of any Private Certificates who is not a
"qualified institutional buyer" as that term is defined in Rule 144A of the
Securities Act must take delivery of such Private Certificates in definitive
form. The Depositor shall provide to any Holder of a Private Certificate and any
prospective transferee designated by any such Holder, information regarding the
related Certificates and the Mortgage Loans and such other information as shall
be necessary to satisfy the condition to eligibility set forth in Rule
144A(d)(4) for transfer of any such Certificate without registration thereof
under the Securities Act pursuant to the registration exemption provided by Rule
144A. To the extent of any information reasonably within the possession of the
applicable party, the Securities Administrator, the Master Servicer and each
Servicer shall cooperate with the Depositor in providing the Rule 144A
information referenced in the preceding sentence, including providing to the
Depositor such information regarding the Certificates, the Mortgage Loans and
other matters regarding the Trust Fund as the Depositor shall reasonably request
to meet its obligation under the preceding sentence. Each Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Securities Administrator, the Master Servicer, the Depositor and
each Servicer against any liability that may result if the transfer is not so
exempt or is not made in accordance with such federal and state laws.
Except with respect to (i) the transfer of a Residual, Class X or
Class P Certificates to the Depositor or an Affiliate of the Depositor, (ii) the
transfer of the Class X or Class P Certificates to the NIM Issuer or the NIM
Trustee, (iii) a transfer of the Class X or Class P Certificates from the NIM
Issuer or the NIM Trustee to the Depositor or an Affiliate of the Depositor or
(iv) a transfer of a Residual Certificate to the applicable Servicer, an
Affiliate of such Servicer, or its designee (including, without limitation, an
employee of the applicable Servicer who is an "accredited investor" as defined
in Regulation D under the Securities Act), no transfer of an ERISA-Restricted
Certificate shall be made unless the Securities Administrator shall have
received either (i) a representation from the transferee of such Certificate
acceptable to and in form and substance satisfactory to the Securities
Administrator (in the event such Certificate is a Private Certificate or a
Residual Certificate, such requirement is satisfied only by the Securities
Administrator's receipt of a representation letter from the transferee
substantially in the form of Exhibit I), to the effect that such transferee is
not an employee benefit plan or arrangement subject to Section 406 of ERISA, a
plan subject to Section 4975 of the Code or a plan subject to any Federal, state
or local law ("Similar Law") materially similar to the foregoing provisions of
ERISA or the Code, nor a Person acting on behalf of any such plan or arrangement
nor using the assets of any such plan or arrangement (collectively, a "Plan") to
effect such transfer, (ii) in the case of an ERISA-Restricted Certificate other
than a Residual Certificate or a Class P Certificate that has been the subject
of an ERISA-Qualifying Underwriting and the purchaser is an insurance company, a
representation that the purchaser is an insurance company that is purchasing
such Certificates with funds contained in an "insurance company general account"
(as such term is defined in Section V(e) of Prohibited Transaction Class
Exemption 95-60 ("PTCE 95-60")) and that the purchase and holding of such
Certificates are covered under Sections I and III of PTCE 95-60 or (iii) in the
case of any such ERISA-Restricted Certificate other than a Residual Certificate
or a Class P Certificate presented for registration in the name of a Plan, an
Opinion of Counsel satisfactory to the Securities Administrator, which Opinion
of Counsel shall not be an expense of the Securities Administrator, the Trustee,
the Depositor, the Servicers or the Trust Fund, addressed to the Securities
Administrator, to the effect that the purchase or holding of such
ERISA-Restricted Certificate will not constitute or result in a non-exempt
prohibited transaction within the meaning of ERISA, Section 4975 of the Code or
any Similar Law and will not subject the Trustee, the Securities Administrator,
the Master Servicer, the Depositor or the Servicers to any obligation in
addition to those expressly undertaken in this Agreement or to any liability.
For purposes of the preceding sentence, with respect to an ERISA-Restricted
Certificate that is not a Private Certificate or a Residual Certificate, in the
event the representation letter referred to in the preceding sentence is not
furnished, such representation shall be deemed to have been made to the
Securities Administrator by the transferee's (including an initial acquirer's)
acceptance of the ERISA-Restricted Certificates. Notwithstanding anything else
to the contrary herein, (a) any purported transfer of an ERISA Restricted
Certificate, other than a Class P Certificate or a Residual Certificate, to or
on behalf of an employee benefit plan subject to ERISA, the Code or Similar Law
without the delivery to the Securities Administrator of an Opinion of Counsel
satisfactory to the Securities Administrator as described above shall be void
and of no effect and (b) any purported transfer of a Class P Certificate or
Residual Certificate to a transferee that does not make the representation in
clause (i) above shall be void and of no effect.
The Residual Certificates and Class P Certificates may not be sold
to any employee benefit plan subject to Title I of ERISA, any plan subject to
Section 4975 of the Code, or any plan subject to any Similar Law or any Person
investing on behalf of or with plan assets of such Plan.
To the extent permitted under applicable law (including, but not
limited to, ERISA), the Securities Administrator shall be under no liability to
any Person for any registration of transfer of any ERISA-Restricted Certificate
that is in fact not permitted by this Section 5.02(b) or for making any payments
due on such Certificate to the Holder thereof or taking any other action with
respect to such Holder under the provisions of this Agreement so long as the
transfer was registered by the Securities Administrator in accordance with the
foregoing requirements.
As long as the Interest Rate Swap Agreement is in effect, each
beneficial owner of a Certificate other than an ERISA Restricted Certificate, or
any interest therein, shall be deemed to have represented that either (i) it is
not a Plan or (ii) the acquisition and holding of the Certificate are eligible
for the exemptive relief available under at least one of the Investor-Based
Exemptions.
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Securities Administrator of any change or impending change in
its status as a Permitted Transferee;
(ii) Except in the case of a Transfer of a Residual Certificate to
an employee of the applicable Servicer who is an "accredited investor" as
defined in Regulation D under the Securities Act, no Ownership Interest in
a Residual Certificate may be registered on the Closing Date or thereafter
transferred, and the Securities Administrator shall not register the
Transfer of any Residual Certificate unless, in addition to the
certificates required to be delivered to the Securities Administrator
under subparagraph (b) above, the Securities Administrator shall have been
furnished with an affidavit (a "Transfer Affidavit") of the initial owner
or the proposed transferee in the form attached hereto as Exhibit H;
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee, trustee or
agent in connection with any Transfer of a Residual Certificate and (C)
not to Transfer its Ownership Interest in a Residual Certificate or to
cause the Transfer of an Ownership Interest in a Residual Certificate to
any other Person if it has actual knowledge that such Person is not a
Permitted Transferee;
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Residual Certificate in violation of the provisions of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder of
a Residual Certificate in violation of the provisions of this Section
5.02(c), then the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of registration of
Transfer of such Residual Certificate. The Securities Administrator shall
be under no liability to any Person for any registration of Transfer of a
Residual Certificate that is in fact not permitted by Section 5.02(b) and
this Section 5.02(c) or for making any payments due on such Certificate to
the Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the Transfer was
registered after receipt of the related Transfer Affidavit, Transferor
Certificate and the Rule 144A Letter. The Securities Administrator shall
be entitled but not obligated to recover from any Holder of a Residual
Certificate that was in fact not a Permitted Transferee at the time it
became a Holder or, at such subsequent time as it became other than a
Permitted Transferee, all payments made on such Residual Certificate at
and after either such time. Any such payments so recovered by the
Securities Administrator shall be paid and delivered by the Securities
Administrator to the last preceding Permitted Transferee of such
Certificate; and
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Securities Administrator, all
information necessary to compute any tax imposed under Section 860E(e) of
the Code as a result of a Transfer of an Ownership Interest in a Residual
Certificate to any Holder who is not a Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in
this Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Securities Administrator of an Opinion of
Counsel, which Opinion of Counsel shall not be an expense of the Trust Fund, the
Depositor, the Trustee, the Securities Administrator, or the Servicers, to the
effect that the elimination of such restrictions will not cause any Trust REMIC
to fail to qualify as a REMIC at any time that the Certificates are Outstanding
or result in the imposition of any tax on the Trust Fund, a Certificateholder or
another Person. Each Person holding or acquiring any Ownership Interest in a
Residual Certificate hereby consents to any amendment of this Agreement which,
based on an Opinion of Counsel furnished to the Securities Administrator, is
reasonably necessary (a) to ensure that the record ownership of, or any
beneficial interest in, a Residual Certificate is not transferred, directly or
indirectly, to a Person that is not a Permitted Transferee and (b) to provide
for a means to compel the Transfer of a Residual Certificate which is held by a
Person that is not a Permitted Transferee to a Holder that is a Permitted
Transferee.
(d) The preparation and delivery of all certificates and opinions
referred to above in this Section 5.02 in connection with transfer shall be at
the expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates shall at
all times remain registered in the name of the Depository or its nominee and at
all times: (i) registration of the Certificates may not be transferred by the
Securities Administrator except to another Depository; (ii) the Depository shall
maintain book-entry records with respect to the Certificate Owners and with
respect to ownership and transfers of such Book-Entry Certificates; (iii)
ownership and transfers of registration of the Book-Entry Certificates on the
books of the Depository shall be governed by applicable rules established by the
Depository; (iv) the Depository may collect its usual and customary fees,
charges and expenses from its Depository Participants; (v) the Securities
Administrator shall deal with the Depository, Depository Participants and
indirect participating firms as representatives of the Certificate Owners of the
Book-Entry Certificates for purposes of exercising the rights of holders under
this Agreement, and requests and directions for and votes of such
representatives shall not be deemed to be inconsistent if they are made with
respect to different Certificate Owners; and (vi) the Securities Administrator
may rely and shall be fully protected in relying upon information furnished by
the Depository with respect to its Depository Participants and furnished by the
Depository Participants with respect to indirect participating firms and persons
shown on the books of such indirect participating firms as direct or indirect
Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall
be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owner. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
If (x) (i) the Depository or the Depositor advises the Securities
Administrator in writing that the Depository is no longer willing or able to
properly discharge its responsibilities as Depository, and (ii) the Securities
Administrator or the Depositor is unable to locate a qualified successor, or (y)
the Depositor notifies the Depository of its intent to terminate the book-entry
system through the Depository and, upon receipt of notice of such intent from
the Depository, the Depository Participants holding beneficial interests in the
Book-Entry Certificates agree to initiate such termination, the Securities
Administrator shall notify all Certificate Owners, through the Depository, of
the occurrence of any such event and of the availability of definitive,
fully-registered Certificates (the "Definitive Certificates") to Certificate
Owners requesting the same. Upon surrender to the Securities Administrator of
the related Class of Certificates by the Depository, accompanied by the
instructions from the Depository for registration, the Securities Administrator
shall issue the Definitive Certificates. None of the Servicers, the Depositor or
the Securities Administrator shall be liable for any delay in delivery of such
instruction and each may conclusively rely on, and shall be protected in relying
on, such instructions. The Depositor shall provide the Securities Administrator
with an adequate inventory of Certificates to facilitate the issuance and
transfer of Definitive Certificates. Upon the issuance of Definitive
Certificates all references herein to obligations imposed upon or to be
performed by the Depository shall be deemed to be imposed upon and performed by
the Securities Administrator, to the extent applicable with respect to such
Definitive Certificates and the Securities Administrator shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder;
provided, that the Securities Administrator shall not by virtue of its
assumption of such obligations become liable to any party for any act or failure
to act of the Depository.
(f) Each Private Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer and accompanied by IRS Form W-8ECI, W-8BEN, W-8IMY (and
all appropriate attachments) or W-9 in form satisfactory to the Securities
Administrator, duly executed by the Certificateholder or his attorney duly
authorized in writing. Each Certificate presented or surrendered for
registration of transfer or exchange shall be cancelled and subsequently
disposed of by the Securities Administrator in accordance with its customary
practice. No service charge shall be made for any registration of transfer or
exchange of Private Certificates, but the Securities Administrator may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of Private Certificates.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates. If
(a) any mutilated Certificate is surrendered to the Securities Administrator, or
the Securities Administrator receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there is delivered to the
Depositor, the Servicers, the Master Servicer, the Trustee and the Securities
Administrator such security or indemnity as may be required by them to hold each
of them harmless, then, in the absence of notice to the Securities Administrator
that such Certificate has been acquired by a bona fide purchaser, the Securities
Administrator shall execute, authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like Class, tenor and Percentage Interest. In connection with the
issuance of any new Certificate under this Section 5.03, the Securities
Administrator may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Securities Administrator)
connected therewith. Any replacement Certificate issued pursuant to this Section
5.03 shall constitute complete and indefeasible evidence of ownership, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
Section 5.04 Persons Deemed Owners. The Servicers, the Securities
Administrator, the Master Servicer, the Trustee, the Depositor, and any agent of
the Servicers, the Depositor, the Securities Administrator, the Master Servicer
or the Trustee may treat the Person in whose name any Certificate is registered
as the owner of such Certificate for the purpose of receiving distributions as
provided in this Agreement and for all other purposes whatsoever, and none of
the Servicers, the Master Servicer, the Securities Administrator, the Trustee,
the Depositor or any agent of the Servicers, the Securities Administrator, the
Master Servicer, the Depositor or the Trustee shall be affected by any notice to
the contrary.
Section 5.05 Access to List of Certificateholders' Names and
Addresses. If three or more Certificateholders (a) request such information in
writing from the Securities Administrator, (b) state that such
Certificateholders desire to communicate with other Certificateholders with
respect to their rights under this Agreement or under the Certificates, and (c)
provide a copy of the communication which such Certificateholders propose to
transmit, or if the Depositor, the Trustee or a Servicer shall request such
information in writing from the Securities Administrator, then the Securities
Administrator shall, within ten Business Days after the receipt of such request,
provide the Depositor, the Trustee, such Servicer or the Certificateholders at
such recipients' expense the most recent list of the Certificateholders of such
Trust Fund held by the Securities Administrator, if any. The Depositor and every
Certificateholder, by receiving and holding a Certificate, agree that the
Securities Administrator shall not be held accountable by reason of the
disclosure of any such information as to the list of the Certificateholders
hereunder, regardless of the source from which such information was derived.
Section 5.06 Maintenance of Office or Agency. The Securities
Administrator will maintain or cause to be maintained at its expense an office
or offices or agency or agencies in the United States where Certificates may be
surrendered for registration of transfer or exchange. The Securities
Administrator initially designates its Corporate Trust Office for registration
of transfer or exchange purposes located at Sixth Street and Marquette Avenue,
Minneapolis, Minnesota 55479, Attention: Corporate Trust Services - GSAMP
2006-HE3. The Securities Administrator shall give prompt written notice to the
Certificateholders of any change in such location of any such office or agency,
for purposes of the surrender of Certificates for the final distribution. The
Securities Administrator shall give prompt written notice to the
Certificateholders of any change in such location of any such office or agency.
ARTICLE VI
THE DEPOSITOR AND THE SERVICERS
Section 6.01 Respective Liabilities of the Depositor and the
Servicers. The Depositor and each of the Servicers shall each be liable in
accordance herewith only to the extent of the obligations specifically and
respectively imposed upon and undertaken by them herein.
Section 6.02 Merger or Consolidation of the Depositor or a Servicer.
(a) The Depositor and each Servicer will each keep in full effect its existence,
rights and franchises as a Delaware corporation, limited partnership, a
corporation or limited liability company, as the case may be, under the laws of
the United States or under the laws of one of the states thereof and will each
obtain and preserve its qualification to do business as a foreign corporation,
limited partnership, a corporation or limited liability company, as applicable,
in each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement, or any of the
Mortgage Loans and to perform its respective duties under this Agreement.
(b) Any Person into which the Depositor or a Servicer may be merged
or consolidated, or any Person resulting from any merger or consolidation to
which the Depositor or a Servicer shall be a party, or any Person succeeding to
the business of the Depositor or a Servicer, shall be the successor of the
Depositor or such Servicer, as the case may be, hereunder, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding; provided, however, that
the successor or surviving Person to such Servicer shall be qualified to sell
mortgage loans to, and to service mortgage loans on behalf of, Xxxxxx Xxx or
Freddie Mac, and meets the requirements of Section 7.02, and provided, further,
that such merger, consolidation or succession does not adversely affect the then
current rating or ratings on the LIBOR Certificates. As a condition to the
succession to any Servicer under this Agreement by any Person (i) into which a
Servicer may be merged or consolidated, or (ii) which may be appointed as a
successor to a Servicer, such Servicer shall provide to the Depositor, the
Securities Administrator and the Master Servicer, at least 30 calendar days (or
10 Business Days in the case of the appointment of the Servicing Rights Pledgee
or its designee as successor servicer pursuant to Sections 6.06 or 7.02
provided, however that the 30 calendar days or 10 Business Days notice period
shall not apply once the Depositor is not required to file reports pursuant to
the Exchange Act) prior to the effective date of such succession or appointment,
(x) written notice to the Depositor, the Securities Administrator and the Master
Servicer of such succession or appointment and (y) in writing and in form and
substance reasonably satisfactory to the Depositor, the Securities Administrator
and the Master Servicer, all information reasonably necessary to enable the
Securities Administrator, pursuant to Section 8.12(g), to accurately and timely
report the event under Item 6.02 of Form 8-K pursuant to the Exchange Act (if
such reports under the Exchange Act are required to be filed under the Exchange
Act).
Section 6.03 Limitation on Liability of the Depositor, the Servicers
and Others. Neither the Depositor, the Servicers nor any of their respective
directors, officers, employees or agents shall be under any liability to the
Certificateholders for any action taken or for refraining from the taking of any
action in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the Depositor, the
Servicers or any such Person against any breach of representations or warranties
made by it herein or protect the Depositor, the Servicers or any such Person
from any liability which would otherwise be imposed by reasons of willful
misfeasance, bad faith or negligence (or gross negligence in the case of the
Depositor) in the performance of duties or by reason of reckless disregard of
obligations and duties hereunder. The Depositor, each Servicer and any director,
officer, employee or agent of the Depositor and each Servicer may rely in good
faith on any document of any kind prima facie properly executed and submitted by
any Person respecting any matters arising hereunder. The Depositor, the Sponsor,
each Servicer and any director, officer, employee, Affiliate or agent of the
Depositor, the Sponsor or each Servicer shall be indemnified by the Trust Fund
and held harmless against any loss, liability or expense incurred in connection
with any audit, controversy or judicial proceeding relating to a governmental
taxing authority or any legal action relating to this Agreement or the
Certificates or any other unanticipated or extraordinary expense, other than any
loss, liability or expense incurred by reason of willful misfeasance, bad faith
or negligence (or gross negligence in the case of the Depositor) in the
performance of duties hereunder or by reason of reckless disregard of
obligations and duties hereunder. Neither the Depositor nor any Servicer shall
be under any obligation to appear in, prosecute or defend any legal action that
is not incidental to its respective duties hereunder and which in its opinion
may involve it in any expense or liability; provided, however, that each of the
Depositor and each Servicer may in its discretion undertake any such action (or
the Depositor direct may the Trustee to undertake such actions pursuant to
Section 2.07 for the benefit of the Certificateholders) that it may deem
necessary or desirable in respect of this Agreement and the rights and duties of
the parties hereto and interests of the Trustee and the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust Fund, and the Depositor, and the applicable Servicer (and the Trustee if
directed by the Depositor to take such action) shall be entitled to be
reimbursed therefor out of the Collection Account.
Section 6.04 Limitation on Resignation of a Servicer. Subject to the
provisions of Section 7.01, Section 6.02, the fourth and fifth paragraphs of
Section 7.02 and Section 6.06, no Servicer shall assign this Agreement or resign
from the obligations and duties hereby imposed on it except (i) by mutual
consent of the applicable Servicer, the Depositor and the Securities
Administrator, (ii) upon the determination that its duties hereunder are no
longer permissible under applicable law and such incapacity cannot be cured by
such Servicer or (iii) upon satisfaction of the following conditions: (a) the
applicable Servicer has proposed a successor servicer to the Securities
Administrator in writing; and (b) each Rating Agency shall have delivered a
letter to the Securities Administrator prior to the appointment of the successor
servicer stating that the proposed appointment of such successor servicer as a
Servicer hereunder will not result in the reduction or withdrawal of the then
current rating of the Regular Certificates or the ratings that are in effect.
Any such determination permitting the resignation of a Servicer under clause
(ii) above shall be evidenced by an Opinion of Counsel (which opinion shall not
be an expense of the Master Servicer, the Securities Administrator, the Trustee
or the Trust Fund) to such effect delivered to the Depositor, the Trustee, the
Master Servicer and the Securities Administrator which Opinion of Counsel shall
be in form and substance acceptable to the Depositor, the Trustee, the Master
Servicer and the Securities Administrator. No such resignation shall become
effective until a successor shall have assumed the Servicer's responsibilities
and obligations hereunder.
Section 6.05 Additional Indemnification by the Servicers; Third
Party Claims.
(a) Each Servicer shall indemnify the Depositor, the Sponsor, the
Master Servicer, the Securities Administrator and the Trustee and any Affiliate,
director, officer, employee or agent of the Depositor, the Master Servicer, the
Securities Administrator and the Trustee and hold each of them harmless against
any and all claims, losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgments, and any other costs, fees
and expenses that any of them may sustain in any way related to any breach by
such Servicer of (i) any of its representations and warranties referred to in
Section 2.03(a), (ii) any error in any tax or information return prepared by
such Servicer, or (iii) the failure of such Servicer to perform its duties and
service the Mortgage Loans in compliance with the terms of this Agreement
(including, without limitation, the failure to deliver accurate and complete
information on a timely basis pursuant to Section 4.03(d)). The applicable
Servicer immediately shall notify the Depositor, the Master Servicer, the
Securities Administrator and the Trustee if such claim is made by a third party
with respect to this Agreement or the Mortgage Loans, assume (with the prior
written consent of the Depositor, the Master Servicer, the Securities
Administrator and the Trustee) the defense of any such claim and pay all
expenses in connection therewith, including reasonable counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or the Depositor, the Master Servicer, the Securities Administrator,
or the Trustee in respect of such claim.
(b) Notwithstanding anything to the contrary contained in this
Agreement, each Servicer shall indemnify the Depositor, the Master Servicer, the
Securities Administrator, the Sponsor, the Trustee and any director, officer,
employee or agent of the Depositor, the Sponsor, the Master Servicer, the
Securities Administrator or the Trustee and hold them harmless against any and
all claims, economic losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgments, and any other related
costs, fees and expenses that any of them actually sustain, in each case that
are likely foreseeable and directly related to any failure by such Servicer or
any Subservicer engaged by such Servicer or any Subcontractor utilized by such
Servicer to deliver any information, report, certification or accountants'
letter when and as required under Sections 3.22, 3.23, 6.02 or 8.12, including
without limitation any failure by such Servicer to identify pursuant to Section
3.02(e) any Subcontractor "participating in the servicing function" within the
meaning of Item 1122 of Regulation AB. (c) If the indemnification provided for
in this Section 6.05 is unavailable or insufficient to hold harmless any Person
entitled to indemnification thereunder, then the applicable Servicer shall
contribute to the amount paid or payable to the party to be indemnified as a
result of the losses, claims, damages or liabilities of such Person in such
proportion as is appropriate to reflect the relative fault of such Person on the
one hand and such Servicer, on the other, in connection with a breach of such
Servicer's obligations pursuant to this Section 6.05. This Section 6.05 shall
survive the termination of this Agreement or the earlier resignation or removal
of the applicable Servicer.
Section 6.06 Servicing Rights Pledge. Notwithstanding anything to
the contrary which may be set forth in Section 6.04, the Securities
Administrator, the Master Servicer, the Trustee, each Custodian and the
Depositor hereby specifically (i) agree to the pledge and assignment by Xxxxxx
of all Litton's right, title and interest in, to and under this Agreement to the
Servicing Rights Pledgee, for the benefit of certain lenders, and (ii) provided
that no Servicer Event of Default exists, agree that upon delivery to the
Securities Administrator by the Servicing Rights Pledgee of a letter signed by
Xxxxxx whereunder Xxxxxx shall resign as a Servicer under this Agreement, the
Securities Administrator shall appoint the Servicing Rights Pledgee or its
designee as successor Servicer, provided that at the time of such appointment,
the Servicing Rights Pledgee or such designee meets the requirements of a
successor Servicer pursuant to Section 7.02 and agrees to be subject to the
terms of this Agreement. If, pursuant to any provision hereof, the duties of
Xxxxxx are transferred to a successor, the entire amount of the Servicing Fee
and other compensation payable to Xxxxxx pursuant hereto shall thereafter be
payable to such successor.
ARTICLE VII
DEFAULT
Section 7.01 Events of Default. "Event of Default," wherever used
herein, means with respect to each Servicer individually, any one of the
following events:
(a) any failure by a Servicer to remit to the Securities
Administrator any payment required to be made under the terms of this Agreement
which continues unremedied for a period of one Business Day after the date upon
which written notice of such failure, requiring the same to be remedied, shall
have been given to such Servicer by the Depositor, or by the Securities
Administrator, or to such Servicer, the Depositor, the Master Servicer, the
Securities Administrator and the Trustee by Certificateholders entitled to at
least 25% of the Voting Rights; or
(b) any failure on the part of a Servicer duly to observe or perform
in any material respect any other of the covenants or agreements on the part of
such Servicer set forth in this Agreement which continues unremedied for a
period of thirty days (except that (x) such number of days shall be fifteen in
the case of a failure to pay any premium for any insurance policy required to be
maintained under this Agreement, (y) there shall be no cure period in the case
of the failure to perform any of the obligations set forth in Sections 3.22 and
3.23 and (z) such number of days shall be ten in the case of a failure to
observe or perform any of the obligations set forth in Sections 3.02, 3.22,
3.23, 6.02, 6.04 or 8.12; provided, however, that in the event that the
Commission grants an extension of time to the Depositor with respect to the
Exchange Act filings referenced in Section 8.12(a), such ten day cure period
shall be extended by the same time period) after the earlier of (i) the date on
which written notice of such failure, requiring the same to be remedied, shall
have been given to such Servicer by the Depositor, the Securities Administrator
or by the Master Servicer, or to such Servicer, the Depositor, the Securities
Administrator, the Master Servicer and the Trustee by Certificateholders of
Certificates entitled to at least 25% of the Voting Rights and (ii) actual
knowledge of such failure by a Servicing Officer of such Servicer; provided,
however, that (except with respect to clauses (x), (y) and (z) above) in the
case of a failure or breach that cannot be cured within 30 days after notice or
actual knowledge by such Servicer, the cure period may be extended for an
additional 30 days upon delivery by such Servicer to the Securities
Administrator of a certificate to the effect that such Servicer believes in good
faith that the failure or breach can be cured within such additional time period
and such Servicer is diligently pursuing remedial action; or
(c) a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshalling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against a Servicer and such
decree or order shall have remained in force undischarged or unstayed for a
period of sixty days; or
(d) a Servicer shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, bankruptcy, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or relating to a
Servicer or of or relating to all or substantially all of its property; or
(e) a Servicer shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its obligations; or
(f) any failure of a Servicer to make any P&I Advance on any
Remittance Date required to be made from its own funds pursuant to Section 4.01
which continues unremedied for one Business Day immediately following the
Remittance Date; or
(g) If a Cumulative Loss Event occurs.
If an Event of Default described in clauses (a) through (g) of this
Section 7.01 shall occur, then, and in each and every such case, so long as such
Event of Default shall not have been remedied, the Master Servicer may, or at
the direction of Certificateholders entitled to a majority of the Voting Rights
the Master Servicer shall, by notice in writing to the applicable Servicer and
the Servicing Rights Pledgee (if any) (with a copy to each Rating Agency),
terminate all of the rights and obligations of the applicable Servicer under
this Agreement and in and to the Mortgage Loans and the proceeds thereof, other
than its rights as a Certificateholder hereunder; provided, however, that the
Master Servicer shall not be required to give written notice to such Servicer of
the occurrence of an Event of Default described in clauses (b) through (g) of
this Section 7.01 unless and until a Responsible Officer of the Master Servicer
has actual knowledge of the occurrence of such an Event of Default. In the event
that a Responsible Officer of the Master Servicer has actual knowledge of the
occurrence of an Event of Default described in clause (a) of this Section 7.01
(i.e., solely as to a default caused by a failure to remit timely on a
Remittance Date), the Master Servicer shall give notice (by telephone or by
email, facsimile or other writing) to such Servicer and the Servicing Rights
Pledgee (if any) of the occurrence of such default by the end of business of the
day on which such Responsible Officer obtains actual knowledge of such
occurrence; provided that failure to give such notice shall not constitute a
waiver of such default or event of default. In the event that a Responsible
Officer of the Master Servicer has actual knowledge of the occurrence of an
Event of Default described in clause (a) of this Section 7.01, the Master
Servicer shall give written notice to such Servicer of the occurrence of such an
event within one Business Day of the first day on which such Responsible Officer
obtains actual knowledge of such occurrence; provided that failure to give such
notice shall not constitute a waiver of such Event of Default. The Master
Servicer, upon a Responsible Officer having actual knowledge of such default,
shall deliver a written notice to such Servicer of the default on any Remittance
Date on which such Servicer fails to make any deposit or payment required
pursuant to this Agreement (including, but not limited to Advances, to the
extent required by this Agreement); provided, however, that if an Event of
Default occurs due to the failure of such Servicer to make an Advance to the
extent required, the Master Servicer, as successor Servicer, or another
successor Servicer shall, prior to the applicable Distribution Date, immediately
make such Advance. Any such notice to such Servicer shall also be given to the
Trustee, each Rating Agency and the Depositor. Notwithstanding any other
provision of this Agreement, any remedy with respect to clause (a) of this
Section 7.01 shall be effective only if payment is received by the Master
Servicer by no later than noon (Eastern time) on the Business Day immediately
following the date of notice to such Servicer as set forth in the immediately
preceding sentence. If such Servicer fails to make such payment, the Master
Servicer shall send notice of termination (by email, facsimile or other writing)
to such Servicer, and, on and after the receipt by such Servicer of such notice,
or upon receipt by such Servicer of notice with respect to any other clause of
this Section 7.01, all authority and power of such Servicer hereunder, whether
with respect to the Mortgage Loans or otherwise, shall pass to and be vested in
the Master Servicer as the successor Servicer subject to the rights of the
Servicing Rights Pledgee (if any, and if the Master Servicer has pertinient
contact information of such Servicing Rights Pledgee) under Sections 6.06 and
7.02. The Master Servicer is hereby authorized and empowered to execute and
deliver, on behalf of such Servicer, as attorney in fact or otherwise, any and
all documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents, or otherwise. Unless expressly
provided in such written notice, no such termination shall affect any obligation
of such Servicer to pay amounts owed pursuant to Article VIII. Each Servicer
agrees to cooperate with the Master Servicer in effecting the termination of
such Servicer's responsibilities and rights hereunder, including, without
limitation, the transfer to the Master Servicer of all cash amounts which shall
at the time be credited to the Collection Account of such predecessor Servicer,
or thereafter be received with respect to the Mortgage Loans.
Notwithstanding any termination of the activities of a Servicer
hereunder, such Servicer shall be entitled to receive from the Trust Fund, prior
to transfer of its servicing obligations hereunder, payment of all accrued and
unpaid portion of the Servicing Fees to which such Servicer would have been
entitled and to continue to receive reimbursement for all outstanding P&I
Advances and Servicing Advances in accordance with the terms of this Agreement.
Section 7.02 Master Servicer to Act; Appointment of Successor
Servicer. On and after the time the Master Servicer gives, and a Servicer
receives, a notice of termination pursuant to Section 7.01, the Master Servicer
shall, subject to and to the extent provided in Section 3.06 and subject to the
rights of the Servicing Rights Pledgee, be the successor to such Servicer in its
capacity as servicer under this Agreement and the transactions set forth or
provided for herein and shall be subject to all the responsibilities, duties and
liabilities relating thereto placed on such Servicer by the terms and provisions
hereof and applicable law, including the obligation to make P&I Advances or
Servicing Advances pursuant to Section 4.01, as soon as practicable but in no
event later than 90 days following the notice of termination or removal of the
Servicer. As compensation therefor, the Master Servicer shall be entitled to all
funds relating to the Mortgage Loans that such Servicer would have been entitled
to charge to the Collection Account if such Servicer had continued to act
hereunder including, if such Servicer was receiving the Servicing Fee, the
Servicing Fee and the income on investments or gain related to the Collection
Account (in addition to income on investments or gain related to the
Distribution Account for the benefit of the Securities Administrator).
Notwithstanding the foregoing, if the Master Servicer has become the successor
to such Servicer in accordance with this Section 7.02, the Master Servicer may,
if it shall be unwilling to so act, or shall, if it is prohibited by applicable
law from making P&I Advances and Servicing Advances pursuant to Section 4.01 or
if it is otherwise unable to so act, or, at the written request of
Certificateholders entitled to a majority of the Voting Rights, appoint, or
petition a court of competent jurisdiction to appoint, any established mortgage
loan servicing institution the appointment of which does not adversely affect
the then current rating of the Certificates by each Rating Agency, as the
successor to such Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of such Servicer hereunder. Any
successor to such Servicer shall be an institution which is a Xxxxxx Xxx- and
Freddie Mac approved seller/servicer in good standing, which has a net worth of
at least $30,000,000, which is willing to service the Mortgage Loans and which
executes and delivers to the Depositor and the Master Servicer an agreement
accepting such delegation and assignment, containing an assumption by such
Person of the rights, powers, duties, responsibilities, obligations and
liabilities of such Servicer (other than liabilities of such Servicer under
Section 6.03 incurred prior to termination of such Servicer under Section 7.01),
with like effect as if originally named as a party to this Agreement; provided,
that each Rating Agency acknowledges that its rating of the Certificates in
effect immediately prior to such assignment and delegation will not be qualified
or reduced, as a result of such assignment and delegation. Pending appointment
of a successor to a Servicer hereunder, the Master Servicer, unless the Master
Servicer is prohibited by law from so acting, shall, subject to Section 3.05,
act in such capacity as hereinabove provided. In connection with such
appointment and assumption, the Master Servicer may make such arrangements for
the compensation of such successor out of payments on Mortgage Loans as it, the
Depositor and such successor shall agree; provided, however, that no such
compensation shall be in excess of the Servicing Fee and amounts paid to such
Servicer from investments. The Master Servicer and such successor shall take
such action, consistent with this Agreement, as shall be necessary to effectuate
any such succession. Neither the Master Servicer nor any other successor
Servicer shall be deemed to be in default hereunder by reason of any failure to
make, or any delay in making, any distribution hereunder or any portion thereof
or any failure to perform, or any delay in performing, any duties or
responsibilities hereunder, in either case caused by the failure of such
Servicer to deliver or provide, or any delay in delivering or providing, any
cash, information, documents or records to it.
In the event that a Servicer is terminated pursuant to Section 7.01,
such terminated Servicer shall provide notices to the Mortgagors, transfer the
Servicing Files to a successor Servicer and pay all of its own out-of-pocket
costs and expenses at its own expense. In addition, all Servicing Transfer Costs
incurred by parties other than the terminated Servicer (excluding set-up costs
and other administrative expenses of the successor Servicer, in which case the
successor Servicer shall pay for such costs and expenses but shall not be
entitled to reimbursement therefor from the Trust Fund, or if the successor
servicer fails to pay, the Securities Administrator pays such amounts from the
Trust Fund), such an amount shall be paid by the terminated Servicer promptly
upon presentation of reasonable documentation of such costs. If the Master
Servicer is the predecessor Servicer (except in the case where the Master
Servicer in its role as successor Servicer is being terminated pursuant to
Section 7.01 by reason of an Event of Default caused solely by the Master
Servicer as the successor Servicer and not by the predecessor Servicer's actions
or omissions), such costs shall be paid by the prior terminated Servicer
promptly upon presentation of reasonable documentation of such costs.
Any successor to a Servicer as servicer shall give notice to the
Mortgagors of such change of Servicer, in accordance with applicable federal and
state law, and shall, during the term of its service as Servicer, maintain in
force the policy or policies that such Servicer is required to maintain pursuant
to Section 3.13.
Notwithstanding anything to the contrary set forth above, if,
pursuant to Section 6.06, Xxxxxx assigns all of its right, title and interest
in, to and under this Agreement to the Servicing Rights Pledgee or its designee,
the Master Servicer hereby agrees that such party shall be appointed successor
Servicer upon receipt of (i) a letter signed by Xxxxxx whereunder Xxxxxx shall
resign as a Servicer under this Agreement, (ii) a letter signed by the Servicing
Rights Pledgee or its designee, whereunder such party acknowledges such
assignment and agrees to be the successor Servicer subject to the terms of this
Agreement and (iii) confirmation from the Rating Agencies that such appointment
will not cause any Rating Agency to withdraw or downgrade its then-current
ratings of any Class of Certificates.
In the event an Event of Default has occurred with respect to
Xxxxxx, notwithstanding anything to the contrary above, the Master Servicer and
the Depositor hereby agree that upon delivery to the Master Servicer by or on
behalf of the Servicing Rights Pledgee of a letter signed by Xxxxxx within ten
Business Days of the date on which the Master Servicer sent notice of such
default, whereunder Xxxxxx shall resign as a Servicer under this Agreement, the
Master Servicer shall appoint the Servicing Rights Pledgee or its designee as
successor Servicer, provided that at the time of appointment, the Servicing
Rights Pledgee or such designee meets the requirements of a successor Servicer
set forth above and the Servicing Rights Pledgee or such designee agrees to be
subject to the terms of this Agreement. If the Servicing Rights Pledgee fails to
provide the Master Servicer with such letter, the Master Servicer shall appoint
a successor Servicer in accordance with Section 7.02. Notwithstanding anything
to the contrary above, Xxxxxx shall continue to perform all of the obligations
of Servicer hereunder until the Master Servicer appoints a successor Servicer.
Any such successor Servicer shall be required to satisfy the
requirements of a successor Servicer under this Section 7.02.
Section 7.03 Notification to Certificateholders. (a) Upon any
termination of or appointment of a successor to a Servicer, the Securities
Administrator shall give prompt written notice thereof to Trustee,
Certificateholders, and to each Rating Agency.
(b) Within 60 days after the occurrence of any Event of Default, the
Securities Administrator shall transmit by mail to all Certificateholders, and
each Rating Agency notice of each such Event of Default hereunder known to the
Securities Administrator, unless such Event of Default shall have been cured or
waived.
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE CUSTODIANS
Section 8.01 Duties of the Trustee. The Trustee, before the
occurrence of a Master Servicer Event of Default and after the curing of all
Master Servicer Events of Default that may have occurred, shall undertake to
perform such duties and only such duties as are specifically set forth in this
Agreement. In case a Master Servicer Event of Default has occurred and remains
uncured, the Trustee shall exercise such of the rights and powers vested in it
by this Agreement, and use the same degree of care and skill in their exercise
as a prudent person would exercise or use under the circumstances in the conduct
of such person's own affairs.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee that are specifically required to be furnished pursuant to any
provision of this Agreement shall examine them to determine whether they are in
the form required by this Agreement. The Trustee shall not be responsible for
the accuracy or content of any resolution, certificate, statement, opinion,
report, document, order, or other instrument.
No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own bad faith or willful misfeasance.
Unless a Master Servicer Event of Default known to a Responsible
Officer of the Trustee has occurred and is continuing,
(a) the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Agreement, the Trustee shall not be
liable except for the performance of the duties and obligations specifically set
forth in this Agreement, no implied covenants or obligations shall be read into
this Agreement against the Trustee, and the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement which it believed in good faith
to be genuine and to have been duly executed by the proper authorities
respecting any matters arising hereunder;
(b) the Trustee shall not be liable for an error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it is finally proven that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken, suffered, or omitted to be taken by it in good faith in accordance with
the direction of the Holders of Certificates evidencing not less than 25% of the
Voting Rights relating to the time, method, and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee under this Agreement.
The Master Servicer or Trustee, as applicable, shall be permitted to
utilize one or more Subcontractors for the performance of certain of its
obligations under this Agreement, provided that the Master Servicer or Trustee,
as applicable, complies with Section 3.02(e) as if the Master Servicer or
Trustee, as applicable, were a "Servicer" pursuant to that Section. The Master
Servicer or Trustee, as applicable, shall indemnify the Depositor, the
Securities Administrator, the Master Servicer, the Sponsor and any director,
officer, employee or agent of the Depositor or the Sponsor and hold them
harmless against any and all claims, losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and any other costs, fees and expenses that any of them may sustain in any way
related to the failure of the Master Servicer or Trustee, as applicable, to
perform any of its obligations under Section 3.22 or Section 3.23, including
without limitation any failure by the Master Servicer or Trustee, as applicable,
to identify pursuant to Section 3.02(e) any Subcontractor that is a Servicing
Function Participant. This indemnity shall survive the termination of this
Agreement or the earlier resignation or removal of the Master Servicer or
Trustee, as applicable.
Section 8.02 Certain Matters Affecting each Custodian and the
Trustee. Except as otherwise provided in Section 8.01:
(a) each Custodian and the Trustee may request and rely upon and
shall be protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties and neither
Custodian nor the Trustee shall have any responsibility to ascertain or confirm
the genuineness of any signature of any such party or parties;
(b) each Custodian and the Trustee may consult with counsel,
financial advisers or accountants and the advice of any such counsel, financial
advisers or accountants and any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such Opinion of
Counsel;
(c) neither Custodian nor the Trustee shall be liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Agreement, nor shall either the Trustee or any Custodian be liable for acts
or omissions of the other;
(d) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing to do so by Holders of
Certificates evidencing not less than 25% of the Voting Rights allocated to each
Class of Certificates;
(e) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
accountants or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agents, accountants or attorneys
appointed with due care by it hereunder; provided that the Trustee shall not be
responsible for any act or omission of any Custodian;
(f) neither Custodian nor the Trustee shall be required to risk or
expend its own funds or otherwise incur any financial liability in the
performance of any of its duties or in the exercise of any of its rights or
powers hereunder if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not assured to it;
(g) the Trustee shall not be liable for any loss on any investment
of funds pursuant to this Agreement (other than as issuer of the investment
security);
(h) the Trustee shall not be deemed to have knowledge of a Master
Servicer Event of Default or an Event of Default until a Responsible Officer of
the Trustee shall have received written notice thereof except as otherwise
provided in Section 7.01;
(i) the Trustee shall be under no obligation to exercise any of the
trusts, rights or powers vested in it by this Agreement or to institute, conduct
or defend any litigation hereunder or in relation hereto at the request, order
or direction of any of the Certificateholders, pursuant to this Agreement,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity satisfactory to the Trustee against the costs, expenses
and liabilities which may be incurred therein or thereby;
(j) the Securities Administrator shall remit the custodian fee to
each Custodian pursuant to a separate agreement.
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates shall be taken as the
statements of the Depositor and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Agreement or of the Certificates or of any Mortgage Loan or
related document. Neither the Trustee nor Custodian shall be accountable for the
use or application by the Depositor, the Securities Administrator, the Master
Servicer or a Servicer of any funds paid to the Depositor, the Securities
Administrator, the Master Servicer or a Servicer in respect of the Mortgage
Loans or deposited in or withdrawn from the Collection Account by the Depositor,
the Securities Administrator, the Master Servicer or a Servicer.
The Trustee shall have no responsibility for filing or recording any
financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder (unless the Trustee shall have become the successor
Master Servicer).
Section 8.04 Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates
with the same rights as it would have if it were not the Trustee.
Section 8.05 Trustee's Fees and Expenses and Indemnification. As
compensation for its activities under this Agreement, the Trustee shall be paid
its fee by the Securities Administrator from the Securities Administrator's own
funds pursuant to a separate fee schedule. The Trustee shall have no lien on the
Trust Fund for the payment of such fees. The Trustee and any director, officer,
employee, or agent of the Trustee or the applicable Custodian and each Custodian
shall be indemnified by the Trust Fund and held harmless against any loss,
liability, or expense (including reasonable attorney's fees) resulting from any
error in any tax or information return prepared by the Master Servicer or
incurred in connection with:
(a) any claim or legal action relating to this Agreement, or
(b) any claim or legal action relating to the Certificates or the
Interest Rate Swap Agreement; or
(c) except as set forth in the last paragraph of this Section 8.05,
the performance of any of the Trustee's or the applicable Custodian's duties
under this Agreement,
other than any loss, liability, or expense with respect to the Trustee (i)
resulting from any breach of any Servicer's obligations in connection with this
Agreement for which the related Servicer has performed its obligation to
indemnify the Trustee pursuant to Section 6.05, (ii) incurred because of willful
misfeasance, bad faith, or negligence in the performance of any of the Trustee's
or the applicable Custodian's duties under this Agreement or (iii) resulting
from any breach of the Master Servicer's obligations hereunder for which the
Master Servicer has performed its obligation to indemnify the Trustee pursuant
to this Agreement. This indemnity shall survive the termination of this
Agreement or the resignation or removal of the Trustee and applicable Custodian
under this Agreement. Without limiting the foregoing, except as otherwise agreed
upon in writing by the Depositor and the Trustee, and except for any expense,
disbursement, or advance arising from the Trustee's negligence, bad faith, or
willful misfeasance, the Trust Fund shall pay or reimburse the Trustee, for all
reasonable expenses, disbursements, and advances incurred or made by the Trustee
in accordance with this Agreement with respect to:
(A) the reasonable compensation, expenses, and disbursements of its
counsel not associated with the closing of the issuance of the Certificates; and
(B) the reasonable compensation, expenses, and disbursements of any
accountant, engineer, or appraiser that is not regularly employed by the
Trustee, to the extent that the Trustee must engage them to perform services
under this Agreement.
Except as otherwise expressly provided in this Agreement or a
separate letter agreement between the Trustee and the Depositor, the Trustee
shall not be entitled to payment or reimbursement for any routine ongoing
expenses incurred by the Trustee in the ordinary course of its duties as Trustee
under this Agreement or for any other expenses incurred by the Trustee;
provided, however, no expense shall be reimbursed by the Trust Fund hereunder if
it would not constitute an "unanticipated expense incurred by the REMIC" within
the meaning of the REMIC Provisions.
Section 8.06 Eligibility Requirements for the Trustee. The Trustee
hereunder shall at all times be a corporation or association organized and doing
business under the laws of a state or the United States of America, authorized
under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least $50,000,000, subject to supervision or examination by
federal or state authority and with a credit rating which would not cause any of
the Rating Agencies to reduce their respective then current ratings of the
Certificates (or having provided such security from time to time as is
sufficient to avoid such reduction) as evidenced in writing by each Rating
Agency. If such corporation or association publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section 8.06
the combined capital and surplus of such corporation or association shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall cease to
be eligible in accordance with this Section 8.06, the Trustee shall resign
immediately in the manner and with the effect specified in Section 8.07. The
entity serving as Trustee may have normal banking and trust relationships with
the Depositor and its Affiliates or the Servicers and its Affiliates; provided,
however, that such entity cannot be an Affiliate of the Depositor or any
Servicer other than the Trustee in its role as successor to the Master Servicer.
Section 8.07 Resignation and Removal of the Trustee. The Trustee may
at any time resign and be discharged from the trusts hereby created by giving
written notice of resignation to the Depositor, the Securities Administrator,
the Master Servicer, the Servicers and each Rating Agency not less than 60 days
before the date specified in such notice, when, subject to Section 8.08, such
resignation is to take effect, and acceptance by a successor trustee in
accordance with Section 8.08 meeting the qualifications set forth in Section
8.06. If no successor trustee meeting such qualifications shall have been so
appointed and have accepted appointment within 30 days after the giving of such
notice or resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance
with Section 8.06 and shall fail to resign after written request thereto by the
Depositor, or if at any time the Trustee shall become incapable of acting, or
shall be adjudged as bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, or a tax is imposed with respect to
the Trust Fund by any state in which the Trustee or the Trust Fund is located
and the imposition of such tax would be avoided by the appointment of a
different trustee, then the Depositor or each Servicer may remove the Trustee
and appoint a successor trustee by written instrument, in triplicate, one copy
of which shall be delivered to the Trustee, one copy to each Servicer and one
copy to the successor trustee.
The Holders of Certificates entitled to a majority of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which shall be
delivered by the successor Trustee to each Servicer, one complete set to the
Trustee so removed and one complete set to the successor so appointed. The
successor trustee shall notify each Rating Agency of any removal of the Trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to this Section 8.07 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section 8.08.
Section 8.08 Successor Trustee. Any successor trustee appointed as
provided in Section 8.07 shall execute, acknowledge and deliver to the Depositor
and to its predecessor trustee and the Servicers an instrument accepting such
appointment hereunder and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with the
like effect as if originally named as trustee herein. The Depositor, the
Servicers and the predecessor trustee shall execute and deliver such instruments
and do such other things as may reasonably be required for more fully and
certainly vesting and confirming in the successor trustee all such rights,
powers, duties, and obligations.
No successor trustee shall accept appointment as provided in this
Section 8.08 unless at the time of its acceptance, the successor trustee is
eligible under Section 8.06 and its appointment does not adversely affect the
then current rating of the Certificates.
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.08, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates. If the Depositor fails to mail
such notice within 10 days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of the Depositor.
Section 8.09 Merger or Consolidation of the Trustee. Any corporation
into which the Trustee may be merged or converted or with which it may be
consolidated or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the business of the Trustee, shall be the successor of the Trustee
hereunder; provided, that such corporation shall be eligible under Section 8.06
without the execution or filing of any paper or further act on the part of any
of the parties hereto, anything herein to the contrary notwithstanding. In
connection with the succession to the Trustee under this Agreement by any Person
(i) into which the Trustee may be merged or consolidated, or (ii) which may be
appointed as a successor to the Trustee, the Trustee shall notify the Depositor
and the Securities Administrator of such succession or appointment and shall
furnish to the Depositor and the Securities Administrator in writing and in form
and substance reasonably satisfactory to the Depositor and the Securities
Administrator, all information reasonably necessary for the Securities
Administrator to accurately and timely report, pursuant to Section 8.12(g), the
event under Item 6.02 of Form 8-K pursuant to the Exchange Act (if such reports
under the Exchange Act are required to be filed under the Exchange Act).
Section 8.10 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing any Mortgage Note may at the time be
located, the applicable Servicer and the Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Trustee to act as co-trustee or co-trustees jointly with
the Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity and for the
benefit of the Certificateholders, such title to the Trust Fund or any part
thereof, whichever is applicable, and, subject to the other provisions of this
Section 8.10, such powers, duties, obligations, rights and trusts as the
applicable Servicer and the Trustee may consider appropriate. If any Servicer
shall not have joined in such appointment within 15 days after the receipt by
such Servicer of a request to do so, or in the case an Event of Default shall
have occurred and be continuing, the Trustee alone shall have the power to make
such appointment. No co-trustee or separate trustee hereunder shall be required
to meet the terms of eligibility as a successor trustee under Section 8.06 and
no notice to Certificateholders of the appointment of any co-trustee or separate
trustee shall be required under Section 8.08.
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(a) To the extent necessary to effectuate the purposes of this
Section 8.10, all rights, powers, duties and obligations conferred or imposed
upon the Trustee, except for the obligation of the Trustee (as successor Master
Servicer) under this Agreement to advance funds on behalf of the Master
Servicer, shall be conferred or imposed upon and exercised or performed by the
Trustee and such separate trustee or co-trustee jointly (it being understood
that such separate trustee or co-trustee is not authorized to act separately
without the Trustee joining in such act), except to the extent that under any
law of any jurisdiction in which any particular act or acts are to be performed
(whether as Trustee hereunder or as successor to the Master Servicer hereunder),
the Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to the applicable Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate trustee
or co-trustee, but solely at the direction of the Trustee;
(b) No trustee hereunder shall be held personally liable because of
any act or omission of any other trustee hereunder and such appointment shall
not, and shall not be deemed to, constitute any such separate trustee or
co-trustee as agent of the Trustee;
(c) The Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee; and
(d) The Trust Fund, and not the Trustee, shall be liable for the
payment of reasonable compensation, reimbursement and indemnification to any
such separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the separate trustees and co-trustees, when
and as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to each
Servicer and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 8.11 Tax Matters. It is intended that the assets with
respect to which any REMIC election pertaining to the Trust Fund is to be made,
as set forth in the Preliminary Statement, shall constitute, and that the
conduct of matters relating to such assets shall be such as to qualify such
assets as, a "real estate mortgage investment conduit" as defined in and in
accordance with the REMIC Provisions. In furtherance of such intention, the
Securities Administrator covenants and agrees that it shall act as agent (and
the Securities Administrator is hereby appointed to act as agent) on behalf of
each Trust REMIC described in the Preliminary Statement and that in such
capacity it shall:
(a) prepare (and the Trustee shall sign) and file in a timely
manner, a U.S. Real Estate Mortgage Investment Conduit (REMIC) Income Tax Return
(Form 1066 or any successor form adopted by the Internal Revenue Service) and
prepare (and the Trustee shall sign) and file with the Internal Revenue Service
and applicable state or local tax authorities income tax or information returns
for each taxable year with respect to each Trust REMIC described in the
Preliminary Statement containing such information and at the times and in the
manner as may be required by the Code or state or local tax laws, regulations,
or rules, and furnish to Certificateholders the schedules, statements or
information at such times and in such manner as may be required thereby;
(b) within thirty days of the Closing Date, apply for an employer
identification number from the Internal Revenue Service via Form SS-4 or any
other acceptable method for all tax entities and shall also furnish to the
Internal Revenue Service, on Form 8811 or as otherwise may be required by the
Code, the name, title, address, and telephone number of the person that the
Holders of the Certificates may contact for tax information relating thereto,
together with such additional information as may be required by such Form, and
update such information at the time or times in the manner required by the Code;
(c) make an election that each of Pooling-Tier REMIC-1, Pooling-Tier
REMIC-2, the Lower-Tier REMIC, the Upper-Tier REMIC and the Class X REMIC be
treated as a REMIC on the federal tax return for its first taxable year (and, if
necessary, under applicable state law);
(d) prepare and forward to the Certificateholders and to the
Internal Revenue Service and, if necessary, state tax authorities, all
information returns and reports as and when required to be provided to them in
accordance with the REMIC Provisions, including the calculation of any original
issue discount using the prepayment assumption (as described in the Prospectus
Supplement);
(e) provide information necessary for the computation of tax imposed
on the Transfer of a Residual Certificate to a Person that is not a Permitted
Transferee (a "Non-Permitted Transferee"), or an agent (including a broker,
nominee or other middleman) of a Non-Permitted Transferee, or a pass-through
entity in which a Non-Permitted Transferee is the record holder of an interest
(the reasonable cost of computing and furnishing such information may be charged
to the Person liable for such tax);
(f) to the extent that they are under its control, conduct matters
relating to such assets at all times that any Certificates are Outstanding so as
to maintain the status of each Trust REMIC as a REMIC under the REMIC
Provisions;
(g) not knowingly or intentionally take any action or omit to take
any action that would cause the termination of the REMIC status of any Trust
REMIC created hereunder;
(h) pay, from the sources specified in the second to last paragraph
of this Section 8.11, the amount of any federal or state tax, including
prohibited transaction taxes as described below, imposed on each Trust REMIC
before its termination when and as the same shall be due and payable (but such
obligation shall not prevent the Securities Administrator or any other
appropriate Person from contesting any such tax in appropriate proceedings and
shall not prevent the Securities Administrator from withholding payment of such
tax, if permitted by law, pending the outcome of such proceedings);
(i) cause federal, state or local income tax or information returns
to be signed by the Securities Administrator or, if required by applicable tax
law, the Trustee or such other Person as may be required to sign such returns by
the Code or state or local laws, regulations or rules; and
(j) maintain records relating to each of the Trust REMICs, including
the income, expenses, assets, and liabilities thereof on a calendar year basis
and on the accrual method of accounting and the fair market value and adjusted
basis of the assets determined at such intervals as may be required by the Code,
as may be necessary to prepare the foregoing returns, schedules, statements or
information.
The Holder of the largest Percentage Interest of the Class RX
Certificates shall act as Tax Matters Person for the Class X REMIC, and the
holder of the largest Percentage Interest of the Class R Certificates shall act
as the Tax Matters Person for Pooling-Tier REMIC-2, the Lower-Tier REMIC and the
Upper-Tier REMIC, and the Holder of the largest Percentage Interest of the Class
RC Certificates shall act as Tax Matters Person for Pooling-Tier REMIC-1, in
each case, within the meaning of Treasury Regulations Section 1.860F-4(d), and
the Securities Administrator is hereby designated as agent of such
Certificateholders for such purpose (or if the Securities Administrator is not
so permitted, such Holder shall be the Tax Matters Person in accordance with the
REMIC Provisions). In such capacity, the Securities Administrator shall, as and
when necessary and appropriate, represent any Trust REMIC in any administrative
or judicial proceedings relating to an examination or audit by any governmental
taxing authority, request an administrative adjustment as to any taxable year of
any Trust REMIC, enter into settlement agreements with any governmental taxing
agency, extend any statute of limitations relating to any tax item of any Trust
REMIC, and otherwise act on behalf of each Trust REMIC in relation to any tax
matter or controversy involving it.
The Securities Administrator shall treat the rights of the Class P
Certificateholders to receive Prepayment Premiums, the rights of the Class X
Certificateholders to receive amounts from the Excess Reserve Fund Account, the
Supplemental Interest Trust (subject to the obligation to pay Basis Risk Carry
Forward Amounts and, without duplication, Upper-Tier Carry Forward Amounts) and
the rights of the LIBOR Certificateholders to receive Basis Risk Carry Forward
Amounts and, without duplication, Upper-Tier Carry Forward Amounts as the
beneficial ownership of interests in a grantor trust and not as obligations of
any Trust REMIC created hereunder, for federal income tax purposes. The
Securities Administrator shall file or cause to be filed with the Internal
Revenue Service Form 1041 or such other form as may be applicable and shall
furnish or cause to be furnished, to the Class P, Class X Certificateholders and
the LIBOR Certificateholders, the respective amounts described above that are
received, in the time or times and in the manner required by the Code.
To enable the Securities Administrator to perform its duties under
this Agreement, the Depositor shall provide to the Securities Administrator
within ten days after the Closing Date all information or data that the
Securities Administrator requests in writing and determines to be relevant for
tax purposes to the valuations and offering prices of the Certificates,
including the price, yield, prepayment assumption, and projected cash flows of
the Certificates and the Mortgage Loans. Moreover, the Depositor shall provide
information to the Securities Administrator concerning the value, if any, to
each Class of LIBOR Certificates of the right to receive Basis Risk Carry
Forward Amounts from the Excess Reserve Fund Account and Basis Risk Carry
Forward Amounts or Upper-Tier Carry Forward Amounts from the Supplemental
Interest Trust. Thereafter, the Depositor shall provide to the Securities
Administrator promptly upon written request therefor any additional information
or data that the Securities Administrator may, from time to time, reasonably
request to enable the Securities Administrator to perform its duties under this
Agreement; provided, however, that the Depositor shall not be required to
provide any information regarding the Mortgage Loans after the Closing Date or
any information that the applicable Servicer is required to provide to the
Securities Administrator pursuant to this Agreement. The Depositor hereby
indemnifies the Securities Administrator for any losses, liabilities, damages,
claims, or expenses of the Securities Administrator arising from any errors or
miscalculations of the Securities Administrator that result from any failure of
the Depositor to provide, pursuant to this paragraph, accurate information or
data to the Securities Administrator on a timely basis.
None of the Servicers, the Trustee, the Master Servicer or the
Securities Administrator shall (i) cause the creation of any interests in any
Trust REMIC other than the regular and residual interests set forth in the
Preliminary Statement, (ii) receive any amount representing a fee or other
compensation for services (except as otherwise permitted by this Agreement) or
(iii) otherwise knowingly or intentionally take any action, cause the Trust Fund
to take any action or fail to take (or fail to cause to be taken) any action
reasonably within its control and the scope of duties more specifically set
forth herein, that, under the REMIC Provisions, if taken or not taken, as the
case may be, could (i) endanger the status of any Trust REMIC as a REMIC or (ii)
result in the imposition of a tax upon any Trust REMIC or the Trust Fund
(including but not limited to the tax on "prohibited transactions" as defined in
Section 860F(a)(2) of the Code and the tax on contributions to a REMIC set forth
in Section 860G(d) of the Code, or the tax on "net income from foreclosure
property") unless the Securities Administrator receives an Opinion of Counsel
(at the expense of the party seeking to take such action or, if such party fails
to pay such expense, at the expense of the Trust Fund, but in no event at the
expense of the Securities Administrator) to the effect that the contemplated
action will not, with respect to the Trust Fund, result in the imposition of a
tax upon any Trust REMIC created hereunder or endanger the status of any Trust
REMIC.
If any tax is imposed on "prohibited transactions" of any Trust
REMIC as defined in Section 860F(a)(2) of the Code, on the "net income from
foreclosure property" of the Pooling-Tier REMIC-1 as defined in Section 860G(c)
of the Code, on any contribution to any Trust REMIC after the Start-up Day
pursuant to Section 860G(d) of the Code, or any other tax is imposed, including,
if applicable, any minimum tax imposed on any Trust REMIC pursuant to Sections
23153 and 24874 of the California Revenue and Taxation Code, if not paid as
otherwise provided for herein, the tax shall be paid by (i) the Trustee, the
Master Servicer or the Securities Administrator, respectively, if such tax
arises out of or results from negligence of the Trustee, the Master Servicer or
the Securities Administrator, as applicable, in the performance of any of its
obligations under this Agreement, (ii) the applicable Servicer, in the case of
any such minimum tax, and otherwise if such tax arises out of or results from a
breach by such Servicer of any of its obligations under this Agreement, (iii)
the Sponsor if such tax arises out of or results from the Sponsor's obligation
to repurchase a Mortgage Loan pursuant to the Representations and Warranties
Agreement, (iv) the applicable Original Loan Seller if such tax arises out of or
results from the applicable Original Loan Seller's obligation to repurchase a
Mortgage Loan pursuant to Section 2.03 or (v) in all other cases, or if the
Trustee, the Master Servicer, the Securities Administrator, the applicable
Servicer, the applicable Original Loan Seller or the Sponsor fails to honor its
obligations under the preceding clause (i), (ii), (iii) or (iv), any such tax
will be paid with amounts otherwise to be distributed to the Certificateholders,
as provided in Section 4.02(a).
For as long as each Trust REMIC shall exist, the Securities
Administrator shall act in accordance with this Agreement and shall comply with
any directions of the Depositor or the applicable Servicer as provided herein so
as to assure such continuing treatment. The Securities Administrator shall not
(a) sell or permit the sale of all or any portion of the Mortgage Loans unless
pursuant to a repurchase or substitution in accordance with this Agreement, or
of any investment of deposits in an Account, and (b) accept any contribution to
any Trust REMIC after the Startup Day without receipt of a REMIC Opinion.
Section 8.12 Periodic Filings. (a) The Securities Administrator, the
Master Servicer and each Servicer shall reasonably cooperate with the Depositor
in connection with the reporting requirements of the Trust under the Exchange
Act. The Securities Administrator shall prepare for execution by the Master
Servicer, on behalf of the Depositor, any Forms 8-K, 10-D and 10-K required by
the Exchange Act and the rules and regulations of the Commission thereunder, in
order to permit the timely filing thereof pursuant to the terms of this Section
8.12, and the Securities Administrator shall file (via the Commission's
Electronic Data Gathering and Retrieval System) such Forms executed by the
Master Servicer, on behalf of the Depositor. The Securities Administrator shall
have no duty to verify information received by it from other Persons (other than
Subcontractors utilized by the Securities Administrator) in connection with its
duties under this Section 8.12.
(b) Within 15 calendar days after each Distribution Date (subject to
permitted extensions under the Exchange Act), the Securities Administrator shall
prepare and file on behalf of the Trust any Form 10-D required by the Exchange
Act, in form and substance as required by the Exchange Act. The Securities
Administrator shall file each Form 10-D with a copy of the related Monthly
Statement attached thereto. Any disclosure in addition to the Monthly Statement
that is required to be included on Form 10-D ("Additional Form 10-D Disclosure")
shall be prepared by the party responsible for preparing such disclosure as set
forth on Exhibit U hereto and the Securities Administrator shall compile such
disclosure pursuant to the following paragraph. The Depositor will approve, as
to form and substance, or disapprove, as the case may be, the inclusion of the
Additional Form 10-D Disclosure on Form 10-D. The Securities Administrator will
have no duty or liability for any failure hereunder to determine or prepare any
Additional Form 10-D Disclosure, except as set forth in the next paragraph.
As set forth on Exhibit U hereto, within 5 calendar days after the
related Distribution Date, certain parties to this Agreement shall be required
to provide to the Securities Administrator and the Depositor, to the extent
known by such applicable parties, any Additional Form 10-D Disclosure, if
applicable. The Securities Administrator shall compile all such information
provided to it in a Form 10-D prepared by it.
After preparing the Form 10-D, the Securities Administrator shall
forward electronically a draft copy of the Form 10-D to the Depositor for review
and verification by the Depositor. No later than 3 Business Days prior to the
15th calendar day after the related Distribution Date, an officer of the Master
Servicer, on behalf of the Depositor, shall sign the Form 10-D and return an
electronic or fax copy of such signed Form 10-D (with an original executed hard
copy to follow by overnight mail) to the Securities Administrator. If a Form
10-D cannot be filed on time or if a previously filed Form 10-D needs to be
amended, the Securities Administrator will follow the procedures set forth in
Section 8.12(f)(ii). The signing party at the Master Servicer can be contacted
at the Master Servicer's address for notices set forth in Section
12.05(b)(2)(a), or such other address as to which the Master Servicer has
provided prior written notice to the Securities Administrator. The Depositor
acknowledges that the performance by the Securities Administrator of its duties
under this Section 8.12(b) related to the timely preparation and filing of Form
10-D is contingent upon each Servicer, the Securities Administrator, the Master
Servicer, the Depositor and any other Person obligated to provide Additional
Form 10-D Disclosure as set forth on Exhibit U hereto observing all applicable
deadlines in the performance of their duties under this Section 8.12(b).
Promptly (but no later than one Business Day) after filing with the Commission,
the Securities Administrator will make available on its internet website a final
executed copy of each Form 10-D filed by the Securities Administrator. The
Securities Administrator shall have no liability for any loss, expense, damage,
or claim arising out of or with respect to any failure to properly prepare
and/or timely file such Form 10-D, where such failure results from the
Securities Administrator's inability or failure to obtain or receive, on a
timely basis, any information from any party hereto (other than the Securities
Administrator or any Subcontractor utilized by the Securities Administrator)
needed to prepare, arrange for execution or file such Form 10-D, not resulting
from its own negligence, bad faith or willful misconduct.
(c) Within 90 days after the end of each fiscal year of the Trust or
such earlier date as may be required by the Exchange Act (the "10-K Filing
Deadline"), commencing in March 2007, the Securities Administrator shall prepare
and file on behalf of the Trust a Form 10-K, in form and substance as required
by the Exchange Act. Each such Form 10-K shall include the following items, in
each case to the extent they have been delivered to the Securities Administrator
within the applicable time frames set forth in this Agreement, (i) an annual
compliance statement for the applicable Servicer and each Subservicer engaged by
such Servicer, as described under Section 3.22, (ii)(A) the annual reports on
assessment of compliance with applicable servicing criteria for the Securities
Administrator, the Master Servicer, the applicable Servicer, each Custodian,
each Subservicer engaged by such Servicer and each Servicing Function
Participant utilized by such Servicer, the Master Servicer or the Securities
Administrator, as described under Section 3.23 and (B) if any such report on
assessment of compliance with servicing criteria described under Section 3.23
identifies any material instance of noncompliance, disclosure identifying such
instance of noncompliance, or such report on assessment of compliance with
servicing criteria described under Section 3.23 is not included as an exhibit to
such Form 10-K, disclosure that such report is not included and an explanation
why such report is not included, (iii)(A) the registered public accounting firm
attestation report for the Securities Administrator, the Master Servicer, the
applicable Servicer, the applicable Custodian (if the Trust is subject to
Exchange Act Reports for such fiscal year), each Subservicer engaged by such
Servicer and each Servicing Function Participant utilized by such Servicer, the
Master Servicer or the Securities Administrator, as described under Section
3.23, and (B) if any registered public accounting firm attestation report
described under Section 3.23 identifies any material instance of noncompliance,
disclosure identifying such instance of noncompliance, or if any such registered
public accounting firm attestation report is not included as an exhibit to such
Form 10-K, disclosure that such report is not included and an explanation why
such report is not included, and (iv) a certification in the form attached
hereto as Exhibit O, with such changes as may be necessary or appropriate as a
result of changes promulgated by the Commission (the "Sarbanes Certification"),
which shall be signed by the senior officer of the Depositor in charge of
securitization. Any disclosure or information in addition to (i) through (iv)
above that is required to be included on Form 10-K ("Additional Form 10-K
Disclosure") shall be prepared by party responsible for preparing such
disclosure as set forth on Exhibit V hereto, and the Securities Administrator
shall compile such disclosure pursuant to the following paragraph. The Depositor
will approve, as to form and substance, or disapprove, as the case may be, the
inclusion of the Additional Form 10-K Disclosure on Form 10-K. The Securities
Administrator will have no duty or liability for any failure hereunder to
determine or prepare any Additional Form 10-K Disclosure, except as set forth in
the next paragraph.
As set forth on Exhibit V hereto, no later than March 15th of each
year that the Trust is subject to the Exchange Act reporting requirements,
commencing in 2007, certain parties to this Agreement shall be required to
provide to the Securities Administrator and the Depositor, to the extent known
by such applicable parties, any Additional Form 10-K Disclosure, if applicable.
The Securities Administrator shall compile all such information provided to it
in a Form 10-K prepared by it.
After preparing the Form 10-K, the Securities Administrator shall
forward electronically a draft copy of the Form 10-K to the Depositor for review
and verification by the Depositor. No later than 5:00 p.m. EST on the 4th
Business Day prior to the 10-K Filing Deadline, an officer of the Master
Servicer, on behalf of the Depositor, shall sign the Form 10-K and return an
electronic or fax copy of such signed Form 10-K (with an original executed hard
copy to follow by overnight mail) to the Securities Administrator. If a Form
10-K cannot be filed on time or if a previously filed Form 10-K needs to be
amended, the Securities Administrator will follow the procedures set forth in
Section 8.12(f)(ii). The signing party at the Master Servicer can be contacted
at the Master Servicer's address for notices set forth in Section
12.05(b)(2)(a), or such other address as to which the Master Servicer has
provided prior written notice to the Securities Administrator. The Depositor
acknowledges that the performance by the Securities Administrator of its duties
under this Section 8.12(c) related to the timely preparation and filing of Form
10-K is contingent upon each Servicer (and any Subservicer or Servicing Function
Participant engaged by a Servicer) and the Depositor and any other Person
obligated to provide Additional Form 10-K Disclosure as set forth on Exhibit V
hereto, observing all applicable deadlines in the performance of their duties
under this Section 8.12(c), Section 8.12(d), Section 3.22 and Section 3.23.
Promptly (but no later than one Business Day) after filing with the Commission,
the Securities Administrator will make available on its internet website a final
executed copy of each Form 10-K filed by the Securities Administrator. The
Securities Administrator shall have no liability for any loss, expense, damage
or claim arising out of or with respect to any failure to properly prepare
and/or timely file such Form 10-K, where such failure results from the
Securities Administrator's inability or failure to obtain or receive, on a
timely basis, any information from any party hereto (other than the Securities
Administrator or any Subcontractor utilized by the Securities Administrator)
needed to prepare, arrange for execution or file such Form 10-K, not resulting
from its own negligence, bad faith or willful misconduct.
(d) In connection with the execution of a Sarbanes Certification,
the Securities Administrator shall sign a certification (in the form attached
hereto as Exhibit P, with such changes as may be necessary or appropriate as a
result of changes promulgated by the Commission) for the benefit of the
Depositor and its officers, directors and Affiliates, each Servicer shall sign a
certification solely with respect to such Servicer (in the form attached hereto
as Exhibit Q-1, with such changes as may be necessary as a result of changes
promulgated by the Commission) for the benefit of the Depositor, the Securities
Administrator and their respective officers, directors and Affiliates and the
applicable Subservicer shall sign a certification solely with respect to such
Subservicer (in the form attached hereto as Exhibit Q-2, with such changes as
may be necessary or appropriate as a result of changes promulgated by the
Commission) for the benefit of the Depositor, the Securities Administrator and
their respective officers, directors and Affiliates and the Master Servicer
shall sign a certification solely with respect to the Master Servicer (in the
form attached hereto as Exhibit Q-3, with such changes as may be necessary as a
result of changes promulgated by the Commission) for the benefit of the
Depositor, the Securities Administrator and their respective officers, directors
and Affiliates. Each such certification shall be delivered to the Depositor no
later than March 15th of each year (or if such day is not a Business Day, the
immediately preceding Business Day) and the Depositor shall deliver the Sarbanes
Certification no later than the time set forth for the delivery to the
Securities Administrator of the signed Form 10-K pursuant to Section 8.12(d) for
such year. In the event that prior to the filing date of the Form 10-K in March
of each year, the Securities Administrator or the applicable Servicer has actual
knowledge of information material to the Sarbanes Certification, that party
shall promptly notify the Depositor and each of the other parties signing the
certifications. In addition, (i) the Securities Administrator shall indemnify
and hold harmless the Depositor, the Servicers and the Sponsor and their
officers, directors, employees, agents and Affiliates from and against any
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments and other costs and expenses arising out of or
based upon any breach of the Securities Administrator's obligations under this
Section 8.12(d) or any material misstatement or material omission contained in
any information, report, certification or other material provided in written or
electronic form pursuant to Section 3.23 and 8.12 of this Agreement and Exhibits
U, V and W to this Agreement provided by or on behalf of the Securities
Administrator or any Subcontractor utilized by the Securities Administrator
(excluding any information, report, certification or other materials provided in
written or electronic form by or on behalf of any Person other than the
Securities Administrator or any Subcontractor utilized by the Securities
Administrator) or negligence, bad faith or willful misconduct in connection
therewith, and (ii) each Servicer shall indemnify and hold harmless the
Depositor, the Sponsor, the Securities Administrator and their respective
officers, directors, employees, agents and Affiliates from and against any
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments and other costs and expenses arising out of or
based upon any breach of such Servicer's obligations under this Section 8.12(d)
or any material misstatement, omission, negligence, bad faith or willful
misconduct of such Servicer in connection therewith. If the indemnification
provided for herein is unavailable or insufficient to hold harmless any
indemnified party, then (i) the Securities Administrator agrees in connection
with a breach of the Securities Administrator's obligations under this Section
8.12(d) or any material misstatement or material omission contained in any
information, report, certification or other material provided in written or
electronic form pursuant to Section 3.23 and 8.12 of this Agreement and Exhibits
U, V and W to this Agreement provided by or on behalf of the Securities
Administrator or any Subcontractor utilized by the Securities Administrator
(excluding any information, report, certification or other materials provided in
written or electronic form by or on behalf of any Person other than the
Securities Administrator or any Subcontractor utilized by the Securities
Administrator) or negligence, bad faith or willful misconduct in connection
therewith that it shall contribute to the amount paid or payable by the
Depositor and the Sponsor as a result of the losses, claims, damages or
liabilities of the Depositor and the Sponsor in such proportion as is
appropriate to reflect the relative fault of the Depositor and the Sponsor on
the one hand and the Securities Administrator on the other and (ii) the
applicable Servicer agrees that it shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities of such indemnified party in such proportion as is appropriate to
reflect the relative fault of such indemnified party, on the one hand, and the
such Servicer, on the other hand, in connection with a breach of the such
Servicer's obligations under this Section 8.12(d) or any material misstatement
or omission, negligence, bad faith or willful misconduct of such Servicer in
connection therewith.
(e) Upon any filing with the Commission, the Securities
Administrator shall promptly deliver to the Depositor a copy of each such
executed report, statement or information.
(f) (i) The obligations set forth in paragraphs (a) through (d) of
this Section shall only apply with respect to periods for which reports are
required to be filed with respect to the Trust under the Exchange Act. Prior to
January 30 of the first year in which the Securities Administrator is able to do
so under applicable law, the Securities Administrator shall prepare and file a
Form 15 Suspension Notification with respect to the Trust, with a copy to the
Depositor. At any time after the filing of a Form 15 Suspension Notification, if
the number of Holders of the Offered Certificates of record exceeds the number
set forth in Section 15(d) of the Exchange Act or the regulations promulgated
pursuant thereto which would cause the Trust to again become subject to the
reporting requirements of the Exchange Act, the Securities Administrator shall
recommence preparing and filing reports on Form 10-K, 10-D and 8-K as required
pursuant to this Section 8.12 and the parties hereto shall again have the
obligations set forth in this Section.
(ii) In the event that the Securities Administrator is unable to
timely file with the Commission all or any required portion of any Form
8-K, 10-D or 10-K required to be filed pursuant to this Agreement because
required disclosure information was either not delivered to it or
delivered to it after the delivery deadlines set forth in this Agreement,
the Securities Administrator will immediately notify the Depositor and the
Servicers. In the case of Form 10-D and 10-K, the Depositor, the Servicers
and the Securities Administrator will thereupon cooperate to prepare a
Form 12b-25 and a 10-DA and 10-KA as applicable, pursuant to Rule 12b-25
of the Exchange Act and the Securities Administrator shall file in
accordance with this Agreement. In the case of Form 8-K, the Securities
Administrator will, upon receipt of all disclosure information required to
be included on Form 8-K, include such disclosure information on the next
Form 10-D. In the event that any previously filed Form 8-K, 10-D or 10-K
needs to be amended, the party to this Agreement deciding that an
amendment to such Form 8-K, 10-D or 10-K is required will notify the
Depositor, the Securities Administrator and the Servicers and such parties
will cooperate to prepare any necessary Form 8-KA, 10-DA or 10-KA. Any
Form 15, Form 12b-25 or any amendment to Form 8-K, 10-D or 10-K shall be
signed by an officer of the Depositor. The Depositor acknowledges that the
performance by the Securities Administrator of its duties under this
Section 8.12(f) related to the timely preparation and filing of Form 15, a
Form 12b-25 or any amendment to Form 8-K, 10-D or 10-K is contingent upon
the Servicers and the Depositor observing all applicable deadlines in the
performance of their duties under this Section 8.12 and Sections 3.22 and
3.23. The Securities Administrator shall have no liability for any loss,
expense, damage or claim arising out of or with respect to any failure to
properly prepare and/or timely file any such Form 15, Form 12b-25 or any
amendments to Forms 8-K, 10-D or 10-K, where such failure results from the
Securities Administrator's inability or failure to obtain or receive, on a
timely basis, any information from any party hereto (other than the
Securities Administrator or any Subcontractor utilized by the Securities
Administrator) needed to prepare, arrange for execution or file such Form
15, Form 12b-25 or any amendments to Forms 8-K, 10-D or 10-K, not
resulting from its own negligence, bad faith or willful misconduct.
(g) Within four (4) Business Days after the occurrence of an event
requiring disclosure on Form 8-K (each such event, a "Reportable Event"), and
also if requested by the Depositor, the Securities Administrator shall prepare
and file on behalf of the Trust any Form 8-K, as required by the Exchange Act,
provided that the Depositor shall file the initial Form 8-K in connection with
the issuance of the Certificates. Any disclosure or information related to a
Reportable Event or that is otherwise required to be included on Form 8-K ("Form
8-K Disclosure Information") shall be prepared by the party responsible for
preparing such disclosure as set forth on Exhibit W hereto and compiled by the
Securities Administrator pursuant to the following paragraph. The Depositor will
approve, as to form and substance, or disapprove, as the case may be, the
inclusion of the Additional Form 8-K Disclosure on Form 8-K. The Securities
Administrator will have no duty or liability for any failure hereunder to
determine or prepare any Form 8-K Disclosure Information or any Form 8-K, except
as set forth in the next paragraph.
As set forth on Exhibit W hereto, for so long as the Trust is
subject to the Exchange Act reporting requirements, no later than noon (Eastern
time) on the 2nd Business Day after the occurrence of a Reportable Event,
certain parties to this Agreement shall be required to provide to the Depositor
and the Securities Administrator, to the extent known by such applicable
parties, any Form 8-K Disclosure Information, if applicable. The Securities
Administrator shall compile all such information provided to it in a Form 8-K
prepared by it.
After preparing the Form 8-K, the Securities Administrator shall
forward electronically a draft copy of the Form 8-K to the Depositor for review
and verification by the Depositor. No later than the end of the 4th Business Day
after the Reportable Event, an officer of the Master Servicer, on behalf of the
Depositor, shall sign the Form 8-K and return an electronic or fax copy of such
signed Form 8-K (with an original executed hard copy to follow by overnight
mail) to the Securities Administrator. If a Form 8-K cannot be filed on time or
if a previously filed Form 8-K needs to be amended, the Securities Administrator
will follow the procedures set forth in Section 8.12(f)(ii). The signing party
at the Master Servicer can be contacted at the Master Servicer's address for
notices set forth in Section 12.05(b)(2)(a), or such other address as to which
the Master Servicer has provided prior written notice to the Securities
Administrator. The Depositor acknowledges that the performance by the Securities
Administrator of its duties under this Section 8.12(g) related to the timely
preparation and filing of Form 8-K is contingent upon each Servicer, the
Depositor and any other Person obligated to provide Form 8-K Disclosure
Information as set forth on Exhibit W hereto, observing all applicable deadlines
in the performance of their duties under this Section 8.12(g). Promptly (but no
later than one Business Day) after filing with the Commission, the Securities
Administrator will make available on its internet website a final executed copy
of each Form 8-K filed by the Securities Administrator. The Securities
Administrator shall have no liability for any loss, expense, damage or claim
arising out of or with respect to any failure to properly prepare and/or timely
file such Form 8-K, where such failure results from the Securities
Administrator's inability or failure to obtain or receive, on a timely basis,
any information from any party hereto (other than the Securities Administrator
or any Subcontractor utilized by the Securities Administrator) needed to
prepare, arrange for execution or file such Form 8-K, not resulting from its own
negligence, bad faith or willful misconduct.
(h) The Securities Administrator shall have no liability for any
loss, expense, damage or claim arising out of or resulting from (i) the accuracy
or inaccuracy of any Additional Form 10-D Disclosure, Additional Form 10-K
Disclosure or Form 8-K Disclosure Information (excluding any information therein
provided by the Securities Administrator or any Subcontractor utilized by the
Securities Administrator) provided to the Securities Administrator in connection
with the preparation of Forms 10-D, 10-K and 8-K pursuant to this Section 8.12,
or (ii) the failure of the Depositor to timely execute and return for filing any
Forms 10-D, 10-K and 8-K required to be filed by the Securities Administrator
pursuant to this Section 8.12, in either case, not resulting from the Securities
Administrator's own negligence, bad faith or misconduct.
Section 8.13 Tax Treatment of Upper-Tier Carry Forward Amounts,
Basis Risk Carry Forward Amounts, the Supplemental Interest Trust and the
Interest Rate Swap Agreement. The Securities Administrator shall treat the
rights that each Class of LIBOR Certificates has to receive payments of
Upper-Tier Carry Forward Amounts and, to the extent not paid from the Excess
Reserve Fund Account, Basis Risk Carry Forward Amounts from the Supplemental
Interest Trust (together with Basis Risk Carry Forward Amounts from the Excess
Reserve Fund Account) as rights to receive payments under a limited recourse
interest rate cap contract written by the Class X Certificateholders in favor of
each such Class. Accordingly, each Class of Certificates (excluding the Class X,
Class P and the Residual Certificates) will be comprised of two components - an
Upper-Tier Regular Interest and an interest in an interest rate cap contract,
and the Class X Certificate will be comprised of four components - two Class X
REMIC Regular Interests (the Class X Interest and the Class IO Interest),
ownership of the Excess Reserve Fund Account, subject to an obligation to pay
Basis Risk Carry Forward Amounts and ownership of the Supplemental Interest
Trust (including the Interest Rate Swap Agreement), subject to the obligation to
pay Upper-Tier Carry Forward Amounts and, without duplication, Basis Risk Carry
Forward Amounts. The Securities Administrator shall allocate the issue price for
a Class of LIBOR Certificates among the respective components for purposes of
determining the issue price of the Upper-Tier Regular Interest component based
on information received from the Depositor. Unless otherwise advised by the
Depositor in writing, for federal income tax purposes, the Securities
Administrator is hereby directed to assign a value of zero to the right of each
Holder of a LIBOR Certificate to receive the related Upper-Tier Carry Forward
Amounts and, without duplication, the related Basis Risk Carry Forward Amount
for purposes of allocating the purchase price of an initial LIBOR
Certificateholder between such rights and the related Upper-Tier Regular
Interest.
Holders of LIBOR Certificates shall also be treated as having agreed
to pay, on each Distribution Date, to the Holders of the Class X Certificates an
aggregate amount equal to the excess, if any, of (i) Net Swap Payments and Swap
Termination Payments (other than Defaulted Swap Termination Payments) over (ii)
the sum of amounts payable on the Class X Interest available for such payments
and amounts payable on the Class IO Interest (such excess, a "Class IO
Shortfall"), first from interest and then from principal distributable on the
LIBOR Certificates. A Class IO Shortfall payable from interest collections shall
be allocated pro rata among such LIBOR Certificates based on the amount of
interest otherwise payable to such Class of LIBOR Certificates, and a Class IO
Shortfall payable from principal collections shall be allocated in reverse
sequential order beginning with the most subordinate Class of LIBOR Certificates
then Outstanding.
Any payments of Class IO Shortfalls shall be treated for tax
purposes as having been received by the Holders of such Class of LIBOR
Certificates in respect of the corresponding Upper-Tier Regular Interest and as
having been paid by such Holders to the Holders of the Class X Certificates
through the Supplemental Interest Trust.
Section 8.14 Custodial Responsibilities. (a) Each Custodian shall
provide access to the Mortgage Loan Documents in possession of the applicable
Custodian regarding the related Mortgage Loans and REO Property and the
servicing thereof to the Trustee, the Certificateholders, the FDIC, and the
supervisory agents and examiners of the FDIC, such access being afforded only
upon reasonable prior written request and during normal business hours at the
office of the applicable Custodian. Each Custodian shall allow representatives
of the above entities to photocopy any of the records and documentation and
shall provide equipment for that purpose at the expense of the person requesting
such access.
(b) Each Custodian may resign from its obligations hereunder upon 60
days' prior written notice to the Trustee, the Depositor, the Securities
Administrator and the Servicers. Such resignation shall take effect upon (i) the
appointment of a successor Custodian reasonably acceptable to the Depositor
within such 60 day period; and (ii) delivery of all Mortgage Loan Files to the
successor Custodian. The Trustee shall have the right, but not the obligation,
to become the successor Custodian. If no successor Xxxxxxxxx is appointed within
60 days after written notice of such Xxxxxxxxx's resignation is received by the
Trustee, the applicable Custodian may petition a court of competent jurisdiction
to appoint a successor Xxxxxxxxx.
Upon such resignation and appointment of successor Xxxxxxxxx, the
applicable Custodian shall, at such Custodian's expense, promptly transfer to
the successor Custodian, as directed in writing by the Trustee, all applicable
Mortgage Files being administered under this Agreement. Notwithstanding the
foregoing, the Trust Fund, not the applicable Custodian, shall bear the costs
relating to the transfer of Mortgage Files if such Custodian shall resign with
cause (including such Xxxxxxxxx's resignation due to the failure of such
Custodian to be paid all fees due to such Custodian hereunder).
(c) For so long as reports are required to be filed with the
Commission under the Exchange Act with respect to the Trust, each Custodian
shall not utilize any Subcontractor for the performance of its duties hereunder
if such Subcontractor would be "participating in the servicing function" within
the meaning of Item 1122 of Regulation AB without the prior written consent of
the Depositor, in its sole discretion.
(d) Each Custodian shall indemnify the Depositor, the Sponsor, the
Securities Administrator and any director, officer, employee, agent and
affiliate of the Depositor, the Sponsor or the Securities Administrator and hold
them harmless against any and all claims, losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and any other costs, fees and expenses that any of them may sustain in any way
related to (i) the failure of the applicable Custodian to deliver when required
any assessment of compliance required to be delivered by the applicable
Custodian or (ii) any material misstatement or omission contained in any
assessment of compliance provided to be delivered by the applicable Custodian.
This indemnity shall survive the termination of this Agreement or the earlier
resignation or removal of the applicable Custodian.
(e) Notwithstanding anything in this Agreement to the contrary, no
Custodian shall be required to deliver, or to cause to be delivered, an
assessment of compliance or accountant's attestation report pursuant to Section
3.23 for any fiscal year of the Trust in which the Custodian's Weighted Average
Percentage is 5% or less. The "Custodian's Weighted Average Percentage" means,
for each fiscal year of the Trust and each Custodian, the quotient, expressed as
a percentage, of (A) the aggregate of the Stated Principal Balance for each
Distribution Date in such fiscal year of the Mortgage Loans for which such
Custodian acted as Custodian divided by (B) the aggregate of the Pool Stated
Principal Balance for each Distribution Date in such fiscal year.
(f) As compensation for its activities under this Agreement, the
Custodians shall be paid their fee by the Securities Administrator from the
Securities Administrator's own funds pursuant to a separate fee schedule. The
Custodians shall have no lien on the Trust Fund for the payment of such fees.
Section 8.15 Limitations on Custodial Responsibilities.
(a) Each Custodian shall be under no duty or obligation to inspect,
review or examine the Mortgage Files to determine that the contents thereof are
appropriate for the represented purpose or that they have been actually recorded
or that they are other than what they purport to be on their face.
(b) Each Custodian shall not be responsible for preparing or filing
any reports or returns relating to federal, state or local income taxes with
respect to this Agreement, other than for such Custodian's compensation or for
reimbursement of expenses.
(c) Each Custodian shall not be responsible or liable for, and makes
no representation or warranty with respect to, the validity, adequacy or
perfection or any lien upon or security interest in any Mortgage File.
(d) The duties and obligations of each Custodian shall only be such
as are expressly set forth in this Agreement or as set forth in a written
amendment to this Agreement executed by the parties hereto or their successors
and assigns. In the event that any provision of this Agreement implies or
requires that action or forbearance be taken by a party, but is silent as to
which party has the duty to act or refrain from acting, the parties agree that
each Custodian shall not be the party required to take the action or refrain
from acting. In no event shall any Custodian have any responsibility to
ascertain or take action except as expressly provided herein.
(e) Each Custodian makes no representations and shall have no
responsibilities (except as expressly set forth herein) as to the validity,
sufficiency, value, genuineness, ownership or transferability of any of the
Conduit Mortgage Loans, and shall not be required to and shall not make any
representations as to the validity, value or genuineness of the Conduit Mortgage
Loans.
(f) Each Custodian shall not be liable for any error of judgment, or
for any act done or step taken or omitted by it, in good faith, or for any
mistake of fact or law, or for anything that it may do or refrain from doing in
connection therewith, except in the case of its negligent performance or
omission or its bad faith or willful misfeasance.
(g) Each Custodian shall not be responsible to verify (i) the
validity, legality, enforceability, sufficiency, due authorization or
genuineness of any document in the Mortgage File or of any Conduit Mortgage
Loans or (ii) the collectibility, insurability, effectiveness including the
authority or capacity of any Person to execute or issue any document in the
Mortgage File, or suitability of any Conduit Mortgage Loans unless specified
otherwise in this Agreement.
(h) Each Custodian shall have no obligation to verify the receipt of
any such documents the existence of which was not made known to such Custodian
by receipt of the Mortgage File.
(i) Each Custodian shall have no obligation to determine whether the
recordation of any document is necessary.
(j) In no event shall any Custodian or its directors, affiliates,
officers, agents, and employees be held liable for any special, indirect or
consequential damages resulting from any action taken or omitted to be taken by
it or them hereunder or in connection herewith even if advised of the
possibility of such damages.
(k) Any Person into which the applicable Custodian may be merged or
consolidated, or any Person resulting from any merger or consolidation to which
the applicable Custodian shall be a party, or any person succeeding to the
business of such Custodian, shall be the successor of such Custodian 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.
ARTICLE IX
ADMINISTRATION OF THE MORTGAGE LOANS BY THE MASTER SERVICER
Section 9.01 Duties of the Master Servicer; Enforcement of
Servicer's Obligations. (a) The Master Servicer, on behalf of the Trustee, the
Securities Administrator, the Depositor and the Certificateholders, shall
monitor the performance of each Servicer's obligations under this Agreement, and
(except as set forth below) shall use its reasonable good faith efforts to cause
such Servicer to duly and punctually perform its duties and obligations
hereunder. Upon the occurrence of an Event of Default of which a Responsible
Officer of the Master Servicer has actual knowledge, the Master Servicer shall
promptly notify the Securities Administrator and the Trustee and shall specify
in such notice the action, if any, the Master Servicer plans to take in respect
of such default. So long as an Event of Default shall occur and be continuing,
the Master Servicer shall take the actions specified in Article VII.
If (i) a Servicer reports a delinquency on a monthly report and (ii)
such Servicer, by 11 a.m. (New York Time) on the related Remittance Date,
neither makes an Advance nor provides the Securities Administrator and the
Master Servicer with an Officer's Certificate certifying that such an Advance
would be a Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance, then
the Master Servicer shall deposit in the Distribution Account not later than the
Business Day immediately preceding the related Distribution Date an Advance in
an amount equal to the difference between (x) with respect to each Monthly
Payment due on a Mortgage Loan that is delinquent (other than Relief Act
Interest Shortfalls) and for which the related Servicer was required to make an
Advance pursuant to this Agreement and (y) amounts deposited in the Collection
Account to be used for Advances with respect to such Mortgage Loan, except to
the extent the Master Servicer determines any such Advance to be a
Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance. Subject to the
foregoing and Section 7.02, the Master Servicer shall continue to make such
Advances for so long as the related Servicer is required to do so under this
Agreement. If applicable, on the Business Day immediately preceding the
Distribution Date, the Master Servicer shall deliver an Officer's Certificate to
the Trustee stating that the Master Servicer elects not to make an Advance in a
stated amount and detailing the reason(s) it deems the Advance to be a
Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance. Any amounts
deposited by the Master Servicer pursuant to this Section 9.01 shall be net of
the Servicing Fee for the related Mortgage Loans.
(b) The Master Servicer shall pay the costs of monitoring the
Servicers as required hereunder (including costs associated with (i) termination
of any Servicer, (ii) the appointment of a successor servicer or (iii) the
transfer to and assumption of, the servicing by the Master Servicer) and shall,
to the extent permitted hereunder, seek reimbursement therefor initially from
the terminated Servicer. In the event the full costs associated with the
transition of servicing responsibilities to the Master Servicer are not paid for
by the predecessor or successor Servicer (provided such successor Servicer is
not the Master Servicer), the Master Servicer may be reimbursed therefor by the
Trust for out-of-pocket costs incurred by the Master Servicer associated with
any such transfer of servicing duties from the Servicer to the Master Servicer
or any other successor servicer.
(c) If the Master Servicer assumes the servicing with respect to any
of the Mortgage Loans, it will not assume liability for the representations and
warranties of any Servicer it replaces or for any errors or omissions of such
Servicer.
(d) Neither the Depositor nor the Securities Administrator shall
consent to the assignment by any Servicer of such Servicer's rights and
obligations under this Agreement without the prior written consent of the Master
Servicer, which consent shall not be unreasonably withheld.
Section 9.02 Maintenance of Fidelity Bond and Errors and Omissions
Insurance. The Master Servicer, at its expense, shall maintain in effect a
blanket fidelity bond and an errors and omissions insurance policy, affording
coverage with respect to all directors, officers, directors, employees and other
Persons acting on such Master Xxxxxxxx's behalf, and covering errors and
omissions in the performance of the Master Servicer's obligations hereunder. The
errors and omissions insurance policy and the fidelity bond shall be in such
form and amount generally acceptable for entities serving as master servicers or
trustees.
Section 9.03 Representations and Warranties of the Master Servicer.
(a) The Master Servicer hereby represents and warrants to the Servicers, the
Depositor, the Securities Administrator, the Custodians and the Trustee, for the
benefit of the Certificateholders, as of the Closing Date that:
(i) it is a national banking association validly existing and in
good standing under the laws of the United States of America, and as
Master Servicer has full power and authority to transact any and all
business contemplated by this Agreement and to execute, deliver and comply
with its obligations under the terms of this Agreement, the execution,
delivery and performance of which have been duly authorized by all
necessary corporate action on the part of the Master Servicer;
(ii) the execution and delivery of this Agreement by the Master
Servicer and its performance and compliance with the terms of this
Agreement will not (A) violate the Master Servicer's charter or bylaws,
(B) violate any law or regulation or any administrative decree or order to
which it is subject or (C) constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material contract, agreement or other
instrument to which the Master Servicer is a party or by which it is bound
or to which any of its assets are subject, which violation, default or
breach would materially and adversely affect the Master Servicer's ability
to perform its obligations under this Agreement;
(iii) this Agreement constitutes, assuming due authorization,
execution and delivery hereof by the other respective parties hereto, a
legal, valid and binding obligation of the Master Servicer, enforceable
against it in accordance with the terms hereof, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights in general, and
by general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law);
(iv) the Master Servicer is not in default with respect to any order
or decree of any court or any order or regulation of any federal, state,
municipal or governmental agency to the extent that any such default would
materially and adversely affect its performance hereunder;
(v) the Master Servicer is not a party to or bound by any agreement
or instrument or subject to any charter provision, bylaw or any other
corporate restriction or any judgment, order, writ, injunction, decree,
law or regulation that may materially and adversely affect its ability as
Master Servicer to perform its obligations under this Agreement or that
requires the consent of any third person to the execution of this
Agreement or the performance by the Master Servicer of its obligations
under this Agreement;
(vi) no litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer which would
prohibit its entering into this Agreement or performing its obligations
under this Agreement;
(vii) [Reserved];
(viii) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Master Servicer of or compliance by the Master Servicer
with this Agreement or the consummation of the transactions contemplated
by this Agreement, except for such consents, approvals, authorizations and
orders (if any) as have been obtained; and
(ix) the consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Master Servicer.
(b) Section 11.01(a) of this Agreement provides that Avelo, at its
option, may purchase (or, if Avelo is no longer acting as a Servicer of any of
the Mortgage Loans, the Depositor, at its option, may request the Master
Servicer to solicit bids in a commercially reasonable manner, on or after the
Optional Termination Date (such event, the "Auction Call"), for the purchase) of
all of the Mortgage Loans (and REO Properties) at the Termination Price. The
Securities Administrator may or may not accommodate such request to conduct an
Auction Call in its sole discretion. Avelo, in consideration of the benefits to
it of the transactions occurring under this Agreement, hereby represents,
covenants and agrees with the Depositor and any applicable NIM Issuer that it
will not exercise its right to purchase, on or after the Optional Termination
Date, all Mortgage Loans (and REO Properties) unless it has received (x) written
notification from the NIM Trustee that all of the outstanding notes issued under
the applicable indenture have been paid in full or (y) an Officer's Certificate
of the NIM Issuer pursuant to the applicable section of the relevant indenture
to the effect that all conditions precedent to the satisfaction and discharge of
the indenture have been complied with. The Depositor hereby represents,
covenants and agrees for the benefit of any applicable NIM Issuer that it will
not exercise its right to request the Master Servicer to solicit bids in a
commercially reasonable manner, on or after the Optional Termination Date, for
the purchase of all of the Mortgage Loans (and REO Properties) unless all of the
outstanding notes issued under the applicable indenture have been paid in full.
(c) It is understood and agreed that the representations and
warranties set forth in this Section shall survive the execution and delivery of
this Agreement. The Master Servicer shall indemnify the Servicers, the
Depositor, the Securities Administrator, the Custodians, the Trustee and the
Trust and hold them harmless against any loss, damages, penalties, fines,
forfeitures, reasonable legal fees and related costs, judgments, and other
reasonable costs and expenses resulting from any claim, demand, defense or
assertion based on or grounded upon, or resulting from, a material breach of the
Master Servicer's representations and warranties contained in Section 9.03(a)
above. It is understood and agreed that the enforcement of the obligation of the
Master Servicer set forth in this Section 9.03 to indemnify the Servicers, the
Depositor, the Securities Administrator, the Custodians, the Trustee and the
Trust constitutes the sole remedy of the Servicers, the Depositor, the
Securities Administrator, the Custodians, the Trustee and the Trust, respecting
a breach of the foregoing representations and warranties. Such indemnification
shall survive any termination of the Master Servicer as Master Servicer
hereunder and any termination of this Agreement.
Any cause of action against the Master Servicer relating to or
arising out of the breach of any representations and warranties made in this
Section shall accrue upon discovery of such breach by either the Servicers,
Depositor, the Master Servicer, Securities Administrator, the applicable
Custodian or the Trustee or notice thereof by any one of such parties to the
other parties.
Section 9.04 Master Servicer Events of Default. Each of the
following shall constitute a "Master Servicer Event of Default":
(a) any failure by the Master Servicer to deposit in the
Distribution Account any payment received by it from a Servicer or required to
be made by the Master Servicer under the terms of this Agreement which continues
unremedied for a period of two (2) Business Days after the date upon which
written notice of such failure, requiring the same to be remedied, shall have
been given to the Master Servicer by any other party hereto;
(b) failure by the Master Servicer to duly observe or perform, in
any material respect, any other covenants, obligations or agreements of the
Master Servicer as set forth in this Agreement which failure continues
unremedied for a period of thirty (30) days after the date on which written
notice of such failure, requiring the same to be remedied, shall have been given
to the Master Servicer by the Trustee or to the Master Servicer and Trustee by
the holders of Certificates evidencing at least 25% of the Voting Rights;
provided that the thirty (30) day cure period shall not apply so long as the
Depositor is required to file any Forms 8-K, 10-D and 10-K required by the
Exchange Act with respect to the Trust Fund, the failure to comply with the
requirements set forth in Section 8.12, for which the grace period shall not
exceed the lesser of ten (10) calendar days or such period in which any
applicable Form 8-K, 10-D and 10-K required by the Exchange Act can be timely
filed (without taking into account any extensions);
(c) a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshaling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Master Servicer
and such decree or order shall have remained in force, undischarged or unstayed
for a period of sixty (60) days;
(d) the Master Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, bankruptcy,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings of or relating to the Master Servicer or relating to all or
substantially all of its property;
(e) the Master Servicer shall admit in writing its inability to pay
its debts as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its obligations for
three (3) Business Days;
(f) except as otherwise set forth herein, the Master Servicer
attempts to assign this Agreement or its responsibilities hereunder or to
delegate its duties hereunder (or any portion thereof) without the consent of
the Securities Administrator, the Trustee and the Depositor; or
(g) the indictment of the Master Servicer for the taking of any
action by the Master Servicer, any Affiliate or any director or employee thereof
that constitutes fraud or criminal activity in the performance of its
obligations under this Agreement, in each case, where such indictment materially
and adversely affects the ability of the Master Servicer to perform its
obligations under this Agreement (subject to the condition that such indictment
is not dismissed within ninety (90) days).
In each and every such case, so long as a Master Servicer Event of
Default shall not have been remedied, in addition to whatever rights the Trustee
may have at law or equity to damages, including injunctive relief and specific
performance, the Trustee, by notice in writing to the Master Servicer, may, and
upon the request of the Holders of Certificates representing at least 51% of the
Voting Rights shall, terminate with cause all the rights and obligations of the
Master Servicer under this Agreement.
Upon receipt by the Master Servicer of such written notice, all
authority and power of the Master Servicer under this Agreement, shall pass to
and be vested in any successor master servicer appointed hereunder which accepts
such appointments. Upon written request from the Trustee or the Depositor, the
Master Servicer shall prepare, execute and deliver to the successor entity
designated by the Trustee any and all documents and other instruments related to
the performance of its duties hereunder as the Master Servicer and, place in
such successor's possession all such documents with respect to the master
servicing of the Mortgage Loans and do or cause to be done all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, at the Master Servicer's sole expense. The Master Servicer shall
cooperate with the Trustee and such successor master servicer in effecting the
termination of the Master Servicer's responsibilities and rights hereunder,
including without limitation, the transfer to such successor master servicer for
administration by it of all cash amounts which shall at the time be credited to
the Distribution Account or are thereafter received with respect to the Mortgage
Loans.
All reasonable out-of-pocket costs and expenses incurred by the
Trustee in connection with the transfer of servicing from a terminated Master
Servicer, including, without limitation, any such costs or expenses associated
with the complete transfer of all servicing data and the completion, correction
or manipulation of such servicing data as may be required by the Trustee to
correct any errors or insufficiencies in the servicing data or otherwise to
enable the Trustee (or any successor Master Servicer appointed pursuant to
Section 9.06) to master service shall be paid by the terminated Master Servicer;
provided, however, that to the extent not previously reimbursed by the
terminated Master Servicer, such fees and expenses shall be payable to the
Trustee pursuant to Section 8.05.
Upon the occurrence of a Master Servicer Event of Default, the
Trustee shall provide the Depositor in writing and in form and substance
reasonably satisfactory to the Depositor, all information reasonably requested
by the Depositor in order to comply with its reporting obligation under Item
6.02 of Form 8-K with respect to a successor master servicer in the event the
Trustee should succeed to the duties of the Master Servicer as set forth herein.
Section 9.05 Waiver of Default. By a written notice, the Trustee may
with the consent of a Holders of Certificates evidencing at least 51% of the
Voting Rights waive any default by the Master Servicer in the performance of its
obligations hereunder and its consequences. Upon any waiver of a past default,
such default shall cease to exist, and any Master Servicer Event of Default
arising therefrom shall be deemed to have been remedied for every purpose of
this Agreement. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereon except to the extent expressly so waived.
Section 9.06 Successor to the Master Servicer. Upon termination of
the Master Servicer's responsibilities and duties under this Agreement, the
Trustee shall appoint or may petition any court of competent jurisdiction for
the appointment of a successor, which shall succeed to all rights and assume all
of the responsibilities, duties and liabilities of the Master Servicer under
this Agreement prior to the termination of the Master Servicer. Any successor
shall be a Xxxxxx Xxx and Freddie Mac approved servicer in good standing and
acceptable to the Depositor and the Rating Agencies. In connection with such
appointment and assumption, the Trustee may make such arrangements for the
compensation of such successor out of payments on Mortgage Loans as it and such
successor shall agree; provided, however, that in no event shall the Master
Servicing Fee paid to such successor master servicer exceed that paid to the
Master Servicer hereunder. In the event that the Master Servicer's duties,
responsibilities and liabilities under this Agreement are terminated, the Master
Servicer shall continue to discharge its duties and responsibilities hereunder
until the effective date of such termination with the same degree of diligence
and prudence which it is obligated to exercise under this Agreement and shall
take no action whatsoever that might impair or prejudice the rights of its
successor. The termination of the Master Servicer shall not become effective
until a successor shall be appointed pursuant hereto and shall in no event (i)
relieve the Master Servicer of responsibility for the representations and
warranties made pursuant to Section 9.03(a) hereof and the remedies available to
the Trustee under Section 9.03(b) hereof, it being understood and agreed that
the provisions of Section 9.03 hereof shall be applicable to the Master Servicer
notwithstanding any such sale, assignment, resignation or termination of the
Master Servicer or the termination of this Agreement; or (ii) affect the right
of the Master Servicer to receive payment and/or reimbursement of any amounts
accruing to it hereunder prior to the date of termination (or during any
transition period in which the Master Servicer continues to perform its duties
hereunder prior to the date the successor master servicer fully assumes its
duties).
If no successor Master Servicer has accepted its appointment within
90 days of the time the Trustee receives the resignation of the Master Servicer,
the Trustee shall be the successor Master Servicer in all respects under this
Agreement and shall have all the rights and powers and be subject to all the
responsibilities, duties and liabilities relating thereto, including the
obligation to make Advances; provided, however, that any failure to perform any
duties or responsibilities caused by the Master Servicer's failure to provide
information required by this Agreement shall not be considered a default by the
Trustee hereunder. In the Trustee's capacity as such successor, the Trustee
shall have the same limitations on liability herein granted to the Master
Servicer. As compensation therefor, the Trustee shall be entitled to receive the
compensation, reimbursement and indemnities otherwise payable to the Master
Servicer, including the fees and other amounts payable pursuant to Section 9.07
hereof.
Any successor master servicer appointed as provided herein, shall
execute, acknowledge and deliver to the Master Servicer and to the Trustee an
instrument accepting such appointment, wherein the successor shall make the
representations and warranties set forth in Section 9.03 hereof, and whereupon
such successor shall become fully vested with all of the rights, powers, duties,
responsibilities, obligations and liabilities of the Master Servicer, with like
effect as if originally named as a party to this Agreement. Any termination or
resignation of the Master Servicer or termination of this Agreement shall not
affect any claims that the Trustee may have against the Master Servicer arising
out of the Master Servicer's actions or failure to act prior to any such
termination or resignation or in connection with the Trustee's assumption as
successor master servicer of such obligations, duties and responsibilities.
Upon a successor's acceptance of appointment as such, the Master
Servicer shall notify by mail the Trustee of such appointment.
Section 9.07 Compensation of the Master Servicer. As compensation
for its activities under this Agreement, the Master Servicer shall be paid the
Master Servicing Fee.
Section 9.08 Merger or Consolidation. Any Person into which the
Master Servicer may be merged or consolidated, or any Person resulting from any
merger, conversion, other change in form or consolidation to which the Master
Servicer shall be a party, or any Person succeeding to the business of the
Master Servicer, shall be the successor to the Master 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;
provided, however, that the successor or resulting Person to the Master Servicer
shall (i) be a Person (or have an Affiliate) that is qualified and approved to
service mortgage loans for Xxxxxx Xxx and Freddie Mac (provided further that a
successor Master Servicer that satisfies subclause (i) through an Affiliate
agrees to service the Mortgage Loans in accordance with all applicable Xxxxxx
Xxx and Freddie Mac guidelines) and (ii) have a net worth of not less than
$25,000,000.
Section 9.09 Resignation of the Master Servicer. Except as otherwise
provided in Sections 9.08 and 9.10 hereof, the Master Servicer shall not resign
from the obligations and duties hereby imposed on it unless the Master
Servicer's 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 and cannot be cured. Any such determination permitting the
resignation of the Master Servicer shall be evidenced by an Opinion of Counsel
that shall be independent to such effect delivered to the Trustee. No such
resignation shall become effective until the Trustee shall have assumed, or a
successor master servicer satisfactory to the Trustee and the Depositor shall
have assumed, the Master Servicer's responsibilities and obligations under this
Agreement. Notice of such resignation shall be given promptly by the Master
Servicer and the Depositor to the Trustee.
If at any time, Xxxxx Fargo Bank, N.A., as Master Servicer, resigns
under this Section 9.09, or is removed as Master Servicer pursuant to Section
9.04, then at such time Xxxxx Fargo Bank, N.A. shall also resign (and shall be
entitled to resign) as Securities Administrator under this Agreement.
Section 9.10 Assignment or Delegation of Duties by the Master
Servicer. Except as expressly provided herein, the Master Servicer shall not
assign or transfer any of its rights, benefits or privileges hereunder to any
other Person, or delegate to or subcontract with, or authorize or appoint any
other Person to perform any of the duties, covenants or obligations to be
performed by the Master Servicer; provided, however, that the Master Servicer
shall have the right with the prior written consent of the Depositor (which
shall not be unreasonably withheld or delayed), and upon delivery to the Trustee
and the Depositor of a letter from each Rating Agency to the effect that such
action shall not result in a downgrade of the ratings assigned to any of the
Certificates, to delegate or assign to or subcontract with or authorize or
appoint any qualified Person to perform and carry out any duties, covenants or
obligations to be performed and carried out by the Master Servicer hereunder.
Notice of such permitted assignment shall be given promptly by the Master
Servicer to the Depositor and the Trustee. If, pursuant to any provision hereof,
the duties of the Master Servicer are transferred to a successor master
servicer, the entire compensation payable to the Master Servicer pursuant hereto
shall thereafter be payable to such successor master servicer but in no event
shall the fee payable to the successor master servicer exceed that payable to
the predecessor master servicer.
Section 9.11 Limitation on Liability of the Master Servicer. Neither
the Master Servicer nor any of the directors, officers, employees or agents of
the Master Servicer shall be under any liability to the Trustee, the Securities
Administrator, the Servicers or the Certificateholders for any action taken or
for refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Master Servicer or any such person against any liability
that would otherwise be imposed by reason of willful malfeasance, bad faith or
negligence in the performance of its duties or by reason of reckless disregard
for its obligations and duties under this Agreement. The Master Servicer and any
director, officer, employee or agent of the Master Servicer may rely in good
faith on any document prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. The Master Servicer shall be under no
obligation to appear in, prosecute or defend any legal action that is not
incidental to its duties as Master Servicer with respect to the Mortgage Loans
under this Agreement and that in its opinion may involve it in any expenses or
liability; provided, however, that the Master Servicer may in its sole
discretion undertake any such action that it may deem necessary or desirable in
respect to this Agreement and the rights and duties of the parties hereto and
the interests of the Certificateholders hereunder. In such event, the legal
expenses and costs of such action and any liability resulting therefrom, shall
be liabilities of the Trust, and the Master Servicer shall be entitled to be
reimbursed therefor out of the Distribution Account in accordance with the
provisions of Section 9.07 and Section 9.12.
The Master Servicer shall not be liable for any acts or omissions of
the Servicer except to the extent that damages or expenses are incurred as a
result of such act or omissions and such damages and expenses would not have
been incurred but for the negligence, willful malfeasance, bad faith or
recklessness of the Master Servicer in supervising, monitoring and overseeing
the performance of the obligations of the Servicers as required under this
Agreement.
Section 9.12 Indemnification; Third Party Claims. The Master
Servicer agrees to indemnify the Servicers, Depositor, the Sponsor, the
Securities Administrator, the Custodians, the Trustee and the Trust, and hold
them harmless against any and all claims, losses, penalties, fines, forfeitures,
legal fees and related costs, judgments, and any other costs, liability, fees
and expenses that the Servicers, Depositor, the Sponsor, the Securities
Administrator, the Custodians, the Trustee or the Trust may sustain as a result
of the Master Servicer's willful malfeasance, bad faith or negligence in the
performance of its duties hereunder or by reason of its reckless disregard for
its obligations and duties under this Agreement, including any failure by the
Master Servicer or any Subcontractor utilized by such Master Servicer to deliver
any information, report, certification or accountants' letter when and as
required under Sections 3.22, 3.23 or 8.12, including without limitation any
failure by the Master Servicer to identify any Subcontractor "participating in
the servicing function" within the meaning of Item 1122 of Regulation AB. The
Depositor, the Sponsor, the Securities Administrator, each Servicer, the
applicable Custodian and the Trustee shall immediately notify the Master
Servicer if a claim is made by a third party with respect to this Agreement or
the Mortgage Loans which would entitle the Depositor, the Securities
Administrator, each Servicer, the applicable Custodian, the Trustee or the Trust
to indemnification under this Section 9.12, whereupon the Master Servicer shall
assume the defense of any such claim and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against it or them in respect of such
claim.
The Master Servicer agrees to indemnify and hold harmless the
Trustee from and against any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments, and any other costs,
liability, fees and expenses (including reasonable attorneys' fees) that the
Trustee may sustain as a result of such liability or obligations of the Master
Servicer and in connection with the Trustee's assumption (not including the
Trustee's performance, except to the extent that costs or liability of the
Trustee are created or increased as a result of negligent or wrongful acts or
omissions of the Master Servicer prior to its replacement as Master Servicer) of
the Master Servicer's obligations, duties or responsibilities under this
Agreement.
The Trust will indemnify the Master Servicer and hold it harmless
against any and all claims, losses, penalties, fines, forfeitures, legal fees
and related costs, judgments, and any other costs, liabilities, fees and
expenses that the Master Servicer may incur or sustain in connection with,
arising out of or related to this Agreement or the Certificates, except to the
extent that any such loss, liability or expense is related to (i) a material
breach of the Master Servicer's representations and warranties in this
Agreement, (ii) resulting from any breach of the applicable Servicer's
obligations in connection with this Agreement for which such Servicer has
performed its obligation to indemnify the Trustee and the Custodian pursuant to
Section 6.05, (iii) resulting from any breach of the applicable Original Loan
Seller's obligations in connection with the related Assignment Agreement or the
Representations and Warranties Agreements, as applicable, for which the
applicable Original Loan Seller has performed its obligation to indemnify the
Master Servicer pursuant to the related Assignment Agreement or the
Representations and Warranties Agreements, as applicable, or (iv) the Master
Servicer's willful malfeasance, bad faith or negligence or by reason of its
reckless disregard of its duties and obligations under this Agreement; provided
that any such loss, liability or expense constitutes an "unanticipated expense
incurred by the REMIC" within the meaning of Treasury Regulations Section
1.860G-1(b)(3)(ii). The Master Servicer shall be entitled to reimbursement for
any such indemnified amount from funds on deposit in the Distribution Account.
ARTICLE X
CONCERNING THE SECURITIES ADMINISTRATOR
Section 10.01 Duties of Securities Administrator. The Securities
Administrator shall undertake to perform such duties and only such duties as are
specifically set forth in this Agreement.
The Securities Administrator, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Securities Administrator that are specifically
required to be furnished pursuant to any provision of this Agreement shall
examine them to determine whether they are in the form required by this
Agreement; provided, however, that the Securities Administrator shall not be
responsible for the accuracy or content of any such resolution, certificate,
statement, opinion, report, document, order or other instrument. If any such
instrument is found not to conform in any material respect to the requirements
of this Agreement, the Securities Administrator shall notify the
Certificateholders of such non conforming instrument in the event the Securities
Administrator, after so requesting, does not receive a satisfactorily corrected
instrument.
No provision of this Agreement shall be construed to relieve the
Securities Administrator from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct; provided, however, that:
(i) the duties and obligations of the Securities Administrator shall
be determined solely by the express provisions of this Agreement, the
Securities Administrator shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this
Agreement, no implied covenants or obligations shall be read into this
Agreement against the Securities Administrator and the Securities
Administrator may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any certificates
or opinions furnished to the Securities Administrator and conforming to
the requirements of this Agreement which it believed in good faith to be
genuine and to have been duly executed by the proper authorities
respecting any matters arising hereunder;
(ii) the Securities Administrator shall not be liable for an error
of judgment made in good faith by a Responsible Officer or Responsible
Officers of the Securities Administrator, unless it shall be conclusively
determined by a court of competent jurisdiction, such determination no
longer subject to appeal, that the Securities Administrator was negligent
in ascertaining the pertinent facts;
(iii) the Securities Administrator shall not be liable with respect
to any action or inaction taken, suffered or omitted to be taken by it in
good faith in accordance with the direction of Holders of Certificates
evidencing not less than 25% of the Voting Rights of Certificates relating
to the time, method and place of conducting any proceeding for any remedy
available to the Securities Administrator, or exercising or omitting to
exercise any trust or power conferred upon the Securities Administrator
under this Agreement; and
(iv) the Securities Administrator shall not be accountable, shall
have no liability and makes no representation as to any acts or omissions
hereunder of the Servicers or the Trustee.
The Securities Administrator shall be permitted to utilize one or
more Subcontractors for the performance of certain of its obligations under this
Agreement, provided that the Securities Administrator complies with Section
3.02(e) as if the Securities Administrator were a "Servicer" pursuant to that
Section. The Securities Administrator shall indemnify the Depositor, the Sponsor
and any director, officer, employee or agent of the Depositor or the Sponsor and
hold them harmless against any and all claims, losses, damages, penalties,
fines, forfeitures, reasonable and necessary legal fees and related costs,
judgments, and any other costs, fees and expenses that any of them may sustain
in any way related to the failure of the Securities Administrator to perform any
of its obligations under Section 3.22 or Section 3.23, including without
limitation any failure by the Securities Administrator to identify pursuant to
Section 3.02(e) any Subcontractor that is a Servicing Function Participant. This
indemnity shall survive the termination of this Agreement or the earlier
resignation or removal of the Securities Administrator.
Section 10.02 Certain Matters Affecting the Securities
Administrator. Except as otherwise provided in Section 10.01:
(i) the Securities Administrator may request and conclusively rely
upon and shall be fully protected in acting or refraining from acting upon
any resolution, Officer's Certificate, certificate of auditors or any
other certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties and the Securities Administrator shall have no
responsibility to ascertain or confirm the genuineness of any signature of
any such party or parties;
(ii) the Securities Administrator may consult with counsel,
financial advisers or accountants and the advice of any such counsel,
financial advisers or accountants and any advice or Opinion of Counsel
shall be full and complete authorization and protection in respect of any
action taken or suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(iii) the Securities Administrator shall not be liable for any
action or inaction taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement;
(iv) the Securities Administrator shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document, unless
requested in writing so to do by Holders of Certificates evidencing not
less than 25% of the Voting Rights allocated to each Class of
Certificates; provided, however, that if the payment within a reasonable
time to the Securities Administrator of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the
opinion of the Securities Administrator, not reasonably assured to the
Securities Administrator by the security afforded to it by the terms of
this Agreement, the Securities Administrator may require reasonable
indemnity against such expense or liability as a condition to so
proceeding. Nothing in this clause (iv) shall derogate from the obligation
of the Master Servicer to observe any applicable law prohibiting
disclosure of information regarding the Mortgagors, provided that the
Master Servicer shall have no liability for disclosure required by this
Agreement;
(v) the Securities Administrator may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or a custodian and the Securities
Administrator shall not be responsible for any misconduct or negligence on
the part of any such agent, attorney or custodian appointed by the
Securities Administrator with due care;
(vi) the Securities Administrator shall not be required to risk or
expend its own funds or otherwise incur any financial liability in the
performance of any of its duties or in the exercise of any of its rights
or powers hereunder if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not assured to it, and none of the provisions contained in
this Agreement shall in any event require the Securities Administrator to
perform, or be responsible for the manner of performance of, any of the
obligations of any Servicer under this Agreement;
(vii) the Securities Administrator shall be under no obligation to
exercise any of the trusts, rights or powers vested in it by this
Agreement or to institute, conduct or defend any litigation hereunder or
in relation hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement, unless
such Certificateholders shall have offered to the Securities Administrator
reasonable security or indemnity satisfactory to the Securities
Administrator against the costs, expenses and liabilities which may be
incurred therein or thereby; and
(viii) the Securities Administrator shall have no obligation to
appear in, prosecute or defend any legal action that is not incidental to
its duties hereunder and which in its opinion may involve it in any
expense or liability; provided, however, that the Securities Administrator
may in its discretion undertake any such action that it may deem necessary
or desirable in respect of this Agreement and the rights and duties of the
parties hereto and the interests of the Trustee and the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and
any liability resulting therefrom shall be expenses, costs and liabilities
of the Trust Fund, and the Securities Administrator shall be entitled to
be reimbursed therefor out of the Collection Account.
The Securities Administrator shall have no duty (A) to see to any
recording, filing, or depositing of this Agreement or any agreement referred to
herein or any financing statement or continuation statement evidencing a
security interest, or to see to the maintenance of any such recording or filing
or depositing or to any rerecording, refiling or redepositing thereof, (B) to
see to the provision of any insurance or (C) to see to the payment or discharge
of any tax, assessment, or other governmental charge or any lien or encumbrance
of any kind owing with respect to, assessed or levied against, any part of the
Trust Fund other than from funds available in the Distribution Account.
Section 10.03 Securities Administrator Not Liable for Certificates
or Mortgage Loans. The recitals contained herein and in the Certificates shall
be taken as the statements of the Depositor or the Sponsor, as the case may be,
and the Securities Administrator assumes no responsibility for their
correctness. The Securities Administrator makes no representations as to the
validity or sufficiency of this Agreement, the Interest Rate Swap Agreement or
of the Certificates or of any Mortgage Loan or related document other than with
respect to the Securities Administrator's execution and authentication of the
Certificates. The Securities Administrator shall not be accountable for the use
or application by the Depositor or any Servicer of any funds paid to the
Depositor or any Servicer in respect of the Mortgage Loans or deposited in or
withdrawn from the Collection Account by the Depositor or any Servicer.
The Securities Administrator shall execute the Interest Rate Swap
Agreement and the Certificates not in its individual capacity but solely as
Securities Administrator of the Trust Fund created by this Agreement, in the
exercise of the powers and authority conferred and vested in it by this
Agreement. Each of the undertakings and agreements made on the part of the
Securities Administrator on behalf of the Trust Fund in the Interest Rate Swap
Agreement and the Certificates is made and intended not as a personal
undertaking or agreement by the Securities Administrator but is made and
intended for the purpose of binding only the Trust Fund.
Section 10.04 Securities Administrator May Own Certificates. The
Securities Administrator in its individual or any other capacity may become the
owner or pledgee of Certificates and may transact business with the parties
hereto and their Affiliates with the same rights as it would have if it were not
the Securities Administrator.
Section 10.05 Securities Administrator's Fees and Expenses. The
Securities Administrator shall be entitled to the investment income earned on
amounts in the Distribution Account during the Securities Administrator Float
Period. The Securities Administrator and any director, officer, employee, agent
or "control person" within the meaning of the Securities Act of 1933, as
amended, and the Securities Exchange of 1934, as amended ("Control Person"), of
the Securities Administrator shall be indemnified by the Trust and held harmless
against any loss, liability or expense (including reasonable attorney's fees)
(i) incurred in connection with any claim or legal action relating to (a) this
Agreement or the Interest Rate Swap Agreement, (b) the Mortgage Loans or (c) the
Certificates, other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of any of the
Securities Administrator's duties hereunder, (ii) incurred in connection with
the performance of any of the Securities Administrator's duties hereunder or
under such other agreements, other than any loss, liability or expense incurred
by reason of willful misfeasance, bad faith or negligence in the performance of
any of the Securities Administrator's duties hereunder or (iii) incurred by
reason of any action of the Securities Administrator taken at the direction of
the Certificateholders, provided that any such loss, liability or expense
constitutes an "unanticipated expense incurred by the REMIC" within the meaning
of Treasury Regulations Section 1.860G-1(b)(3)(ii). Such indemnity shall survive
the termination of this Agreement or the resignation or removal of the
Securities Administrator hereunder. Without limiting the foregoing, and except
for any such expense, disbursement or advance as may arise from the Securities
Administrator's negligence, bad faith or willful misconduct, or which would not
be an "unanticipated expense" within the meaning of the second preceding
sentence, the Securities Administrator shall be reimbursed by the Trust for all
reasonable expenses, disbursements and advances incurred or made by the
Securities Administrator in accordance with any of the provisions of this
Agreement with respect to: (A) the reasonable compensation and the expenses and
disbursements of its counsel not associated with the closing of the issuance of
the Certificates, (B) the reasonable compensation, expenses and disbursements of
any accountant, engineer, appraiser or other agent that is not regularly
employed by the Securities Administrator, to the extent that the Securities
Administrator must engage such Persons to perform acts or services hereunder and
(C) printing and engraving expenses in connection with preparing any Definitive
Certificates. The Trust shall fulfill its obligations under this paragraph from
amounts on deposit from time to time in the Distribution Account. The Securities
Administrator shall be required to pay all expenses incurred by it in connection
with its activities hereunder and shall not be entitled to reimbursement
therefor except as provided in this Agreement.
Section 10.06 Eligibility Requirements for Securities Administrator.
The Securities Administrator hereunder shall at all times be a corporation or
association organized and doing business under the laws the United States of
America or any state thereof, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by federal or state authority and with a
credit rating of at least investment grade. If such corporation or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 10.06 the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Securities Administrator shall cease to be eligible in
accordance with the provisions of this Section 9.06, the Securities
Administrator shall resign immediately in the manner and with the effect
specified in Section 10.07 hereof. The entity serving as Securities
Administrator may have normal banking and trust relationships with the Depositor
and its affiliates or the Trustee and its affiliates.
Any successor Securities Administrator (i) may not be an originator,
the Servicer, the Depositor or an affiliate of the Depositor unless the
Securities Administrator functions are operated through an institutional trust
department of the Securities Administrator, (ii) must be authorized to exercise
corporate trust powers under the laws of its jurisdiction of organization, and
(iii) must be rated at least "A/F1" by Fitch, if Fitch is a Rating Agency and
rates such successor, or the equivalent rating by Standard & Poor's or Xxxxx'x.
If no successor Securities Administrator shall have been appointed and shall
have accepted appointment within 60 days after the Securities Administrator
ceases to be the Securities Administrator pursuant to Section 9.07, then the
Trustee may (but shall not be obligated to) become the successor Securities
Administrator. The Depositor shall appoint a successor to the Securities
Administrator in accordance with Section 10.07. The Trustee shall notify the
Rating Agencies of any change of Securities Administrator.
Section 10.07 Resignation and Removal of Securities Administrator.
The Securities Administrator may at any time resign by giving written notice of
resignation to the Depositor and the Trustee and each Rating Agency not less
than 60 days before the date specified in such notice when, subject to Section
10.08, such resignation is to take effect, and acceptance by a successor
Securities Administrator in accordance with Section 10.08 meeting the
qualifications set forth in Section 10.06. If no successor Securities
Administrator meeting such qualifications shall have been so appointed by the
Depositor and have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Securities Administrator may petition any
court of competent jurisdiction for the appointment of a successor Securities
Administrator.
If at any time the Securities Administrator shall cease to be
eligible in accordance with the provisions of Section 10.06 hereof and shall
fail to resign after written request thereto by the Depositor, or if at any time
the Securities Administrator shall become incapable of acting, or shall be
adjudged as bankrupt or insolvent, or a receiver of the Securities Administrator
or of its property shall be appointed, or any public officer shall take charge
or control of the Securities Administrator or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, or a tax is imposed with
respect to the Trust Fund by any state in which the Securities Administrator or
the Trust Fund is located and the imposition of such tax would be avoided by the
appointment of a different Securities Administrator, then the Depositor may
remove the Securities Administrator and appoint a successor Securities
Administrator by written instrument, in triplicate, one copy of which instrument
shall be delivered to the Securities Administrator so removed, one copy of which
shall be delivered to the Master Servicer and one copy to the successor
Securities Administrator.
The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Securities Administrator and appoint a
successor Securities Administrator by written instrument or instruments, in
triplicate, signed by such Holders or their attorneys in fact duly authorized,
one complete set of which instruments shall be delivered by the successor
Securities Administrator to the Trustee, one complete set to the Securities
Administrator so removed and one complete set to the successor so appointed.
Notice of any removal of the Securities Administrator shall be given to each
Rating Agency by the successor Securities Administrator.
Any resignation or removal of the Securities Administrator and
appointment of a successor Securities Administrator pursuant to any of the
provisions of this Section 10.07 shall become effective upon acceptance by the
successor Securities Administrator of appointment as provided in Section 10.08
hereof.
Notwithstanding the foregoing, if at any time the Securities
Administrator resigns pursuant to Section 10.07, the Trustee shall be authorized
to appoint, with the Depositor's consent, a successor Securities Administrator
concurrently with the appointment of a successor Master Xxxxxxxx.
Section 10.08 Successor Securities Administrator. Any successor
Securities Administrator (which may be the Trustee) appointed as provided in
Section 10.07 hereof shall execute, acknowledge and deliver to the Depositor and
to its predecessor, the Securities Administrator and the Trustee an instrument
accepting such appointment hereunder and thereupon the resignation or removal of
the predecessor Securities Administrator shall become effective and such
successor Securities Administrator, without any further act, deed or conveyance,
shall become fully vested with all the rights, powers, duties and obligations of
its predecessor hereunder, with the like effect as if originally named as
Securities Administrator herein. The Depositor, the Trustee, the Master Servicer
and the predecessor Securities Administrator shall execute and deliver such
instruments and do such other things as may reasonably be required for more
fully and certainly vesting and confirming in the successor Securities
Administrator all such rights, powers, duties, and obligations.
No successor Securities Administrator shall accept appointment as
provided in this Section 9.08 unless at the time of such acceptance such
successor Securities Administrator shall be eligible under the provisions of
Section 10.06 hereof and its appointment shall not adversely affect the then
current rating of the Certificates, as confirmed in writing by each Rating
Agency.
Upon acceptance by a successor Securities Administrator of
appointment as provided in this Section 10.08, the Depositor shall mail notice
of the succession of such Securities Administrator hereunder to all Holders of
Certificates. If the Depositor fails to mail such notice within 10 days after
acceptance by the successor Securities Administrator of appointment, the
successor Securities Administrator shall cause such notice to be mailed at the
expense of the Depositor.
Section 10.09 Merger or Consolidation of Securities Administrator.
Any corporation or other entity into which the Securities Administrator may be
merged or converted or with which it may be consolidated or any corporation or
other entity resulting from any merger, conversion or consolidation to which the
Securities Administrator shall be a party, or any corporation or other entity
succeeding to the business of the Securities Administrator, shall be the
successor of the Securities Administrator hereunder, provided that such
corporation or other entity shall be eligible under the provisions of Section
9.06 hereof, without the execution or filing of any paper or further act on the
part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 10.10 Assignment or Delegation of Duties by the Securities
Administrator. Except as expressly provided herein, the Securities Administrator
shall not assign or transfer any of its rights, benefits or privileges hereunder
to any other Person, or delegate to or subcontract with, or authorize or appoint
any other Person to perform any of the duties, covenants or obligations to be
performed by the Securities Administrator; provided, however, that the
Securities Administrator shall have the right with the prior written consent of
the Depositor (which shall not be unreasonably withheld or delayed), and upon
delivery to the Trustee and the Depositor of a letter from each Rating Agency to
the effect that such action shall not result in a downgrade of the ratings
assigned to any of the Certificates, to delegate or assign to or subcontract
with or authorize or appoint any qualified Person to perform and carry out any
duties, covenants or obligations to be performed and carried out by the
Securities Administrator hereunder. Notice of such permitted assignment shall be
given promptly by the Securities Administrator to the Depositor and the Trustee.
If, pursuant to any provision hereof, the duties of the Securities Administrator
are transferred to a successor securities administrator, the entire compensation
payable to the Securities Administrator pursuant hereto shall thereafter be
payable to such successor securities administrator but in no event shall the fee
payable to the successor securities administrator exceed that payable to the
predecessor securities administrator.
ARTICLE XI
TERMINATION
Section 11.01 Termination upon Liquidation or Purchase of the
Mortgage Loans. Subject to Sections 11.02 and 11.03, the obligations and
responsibilities of the Depositor, the Master Servicer, the Securities
Administrator, the Servicers and the Trustee created hereby with respect to the
Trust Fund shall terminate upon the earlier of (a) the purchase, on the Optional
Termination Date, by Avelo (or if Avelo is no longer acting as a Servicer of any
of the Mortgage Loans, the Depositor, at its option, may request the Securities
Administrator to solicit bids in a commercially reasonable manner, on or after
the Optional Termination Date (such event, the "Auction Call"), for the purchase
of all of the Mortgage Loans (and REO Properties) at the Termination Price;
provided that the Securities Administrator may or may not accommodate any such
request in its sole discretion) or Xxxxxx, as applicable, of all Mortgage Loans
(and REO Properties) at the price equal to the sum of (i) 100% of the unpaid
principal balance of each Mortgage Loan (other than in respect of REO Property)
plus accrued and unpaid interest thereon at the applicable Mortgage Interest
Rate and the amount of outstanding Servicing Advances on such Mortgage Loans
through the Due Date preceding the date of purchase, (ii) the lesser of (x) the
appraised value of any REO Property as determined by an independent appraiser
selected by the Person electing to terminate the Trust Fund, at the expense of
such Person, plus accrued and unpaid interest on the related Mortgage Loan at
the applicable Mortgage Interest Rates and (y) the unpaid principal balance of
each Mortgage Loan related to any REO Property, in each case plus accrued and
unpaid interest thereon at the applicable Mortgage Interest Rate, and (iii) any
Swap Termination Payment owed to the Swap Provider (as provided to the
Securities Administrator by the Swap Provider pursuant to the Interest Rate Swap
Agreement) ("Termination Price") and (b) the later of (i) the maturity or other
Liquidation Event (or any Advance with respect thereto) of the last Mortgage
Loan remaining in the Trust Fund and the disposition of all REO Property and
(ii) the distribution to Certificateholders of all amounts required to be
distributed to them pursuant to this Agreement. In no event shall the trusts
created hereby continue beyond the expiration of 21 years from the death of the
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the
United States to the Court of St. James's, living on the date hereof.
The proceeds of the purchase or sale of such assets of the Trust on
to the Optional Termination Date or pursuant to the Auction Call described in
Section 11.01 above (other than, with respect to any Mortgage Loan and the
related REO Property, an amount equal to the excess, if any, of the amount in
Section 11.01(a)(ii) over the sum of the amount in Section 11.01(a)(i) (such
excess, the "Fair Market Value Excess")) will be distributed to the holders of
the Certificates in accordance with Section 4.01. Any Fair Market Value Excess
received in connection with the purchase of the Mortgage Loans and REO
Properties will be distributed to the holders of the Class RC Certificates.
Except to the extent provided above with regard to allocating any
Fair Market Value Excess to the holders of the Class RC Certificates, the
proceeds of such a purchase or sale will be treated as a prepayment of the
Mortgage Loans for purposes of distributions to Certificateholders. Accordingly,
the sale of the Mortgage Loans and the REO Properties as a result of the
exercise by Xxxxx, Xxxxxx or the Auction Call will result in the final
distribution on the Certificates on that Distribution Date.
Section 11.02 Final Distribution on the Certificates. If on any
Remittance Date, a Servicer notifies the Securities Administrator in writing
that there are no Outstanding Mortgage Loans and no other funds or assets in the
Trust Fund other than the funds in the Collection Account, such Servicer shall
direct the Securities Administrator promptly to send a Notice of Final
Distribution to each Certificateholder and the Swap Provider. If Avelo or
Xxxxxx, as applicable, elects to terminate the Trust Fund pursuant to clause (a)
of Section 11.01, by the 25th day of the month preceding the month of the final
distribution, Avelo or Xxxxxx, as applicable, shall notify the Depositor, the
Master Servicer, the Securities Administrator and the Trustee in writing of the
date Xxxxxx or Avelo, as applicable, intends to terminate the Trust Fund and of
the applicable Termination Price of the Mortgage Loans and REO Properties.
Notwithstanding anything to the contrary herein, prior to any
election by Xxxxx to terminate the Trust Fund pursuant to Section 11.01(a) on
any Distribution Date on which the aggregate Stated Principal Balance of the
Mortgage Loans, as of the last day of the related Due Period, is equal to 5% or
less of the Cut-off Date Pool Principal Balance, Avelo will be required to
secure written notice from the Securities Administrator that Xxxxxx has refused
to exercise its option to terminate the Trust Fund.
A Notice of Final Distribution, specifying the Distribution Date on
which Certificateholders may surrender their Certificates for payment of the
final distribution and cancellation, shall be given promptly by the Securities
Administrator by letter to Certificateholders mailed not later than the 15th day
of the month of such final distribution. Any such Notice of Final Distribution
shall specify (a) the Distribution Date upon which final distribution on the
Certificates will be made upon presentation and surrender of Certificates at the
office therein designated, (b) the amount of such final distribution, (c) the
location of the office or agency at which such presentation and surrender must
be made, and (d) that the Record Date otherwise applicable to such Distribution
Date is not applicable, distributions being made only upon presentation and
surrender of the Certificates at the office therein specified. The Securities
Administrator will give such Notice of Final Distribution to each Rating Agency
at the time such Notice of Final Distribution is given to Certificateholders.
In the event such Notice of Final Distribution is given, Avelo and
Xxxxxx, as applicable, shall promptly deposit such funds in the applicable
Collection Account. During the time such funds are held in such Collection
Account, such funds shall be invested, at the direction of Avelo and Xxxxxx, as
applicable,, in Permitted Investments, and Avelo and Xxxxxx, as applicable,
shall be entitled to all income from such investments, and shall be responsible
for all losses from such investments. In connection with any such termination of
the Trust Fund, Avelo and Xxxxxx, as applicable, shall cause all funds in the
Collection Account, including the applicable Termination Price for the Mortgage
Loans and REO Properties to be remitted to the Master Servicer for deposit in
the Distribution Account on the Business Day prior to the applicable
Distribution Date. Upon such final deposit with respect to the Trust Fund and
the receipt by the applicable Custodian of a Request for Release therefor, the
applicable Custodian, shall promptly release to Avelo and Xxxxxx, as applicable,
or its designee, the Custodial Files for the Mortgage Loans.
Upon presentation and surrender of the Certificates, the Securities
Administrator shall cause to be distributed to the Certificateholders of each
Class (after reimbursement of all amounts due to the applicable Servicer
(including all unreimbursed Advances and any Servicing Fees accrued and unpaid
as of the date the Termination Price is paid), the Depositor, the Master
Servicer, the Securities Administrator and the Trustee hereunder), in each case
on the final Distribution Date and in the order set forth in Section 4.02, in
proportion to their respective Percentage Interests, with respect to
Certificateholders of the same Class, an amount up to an amount equal to (i) as
to each Class of Regular Certificates (except the Class X Certificates), the
Certificate Balance thereof plus for each such Class and the Class X
Certificates accrued interest thereon in the case of an interest bearing
Certificate and all other amounts to which such Classes are entitled pursuant to
Section 4.02, (ii) as to the Residual Certificates, the amount, if any, which
remains on deposit in the Distribution Account (other than the amounts retained
to meet claims) after application pursuant to clause (i) above.
In the event that any affected Certificateholders shall not
surrender Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Securities Administrator
shall give a second written notice to the remaining Certificateholders to
surrender their Certificates for cancellation and receive the final distribution
with respect thereto. If within six months after the second notice all the
applicable Certificates shall not have been surrendered for cancellation, the
Securities Administrator may take appropriate steps, or may appoint an agent to
take appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of the
funds and other assets which remain a part of the Trust Fund. If within one year
after the second notice all Certificates shall not have been surrendered for
cancellation, the Residual Certificateholders shall be entitled to all unclaimed
funds and other assets of the Trust Fund which remain subject hereto.
Section 11.03 Additional Termination Requirements. In the event
Avelo (or the Master Servicer pursuant to an Auction Call) or Xxxxxx, as
applicable, exercises its purchase option with respect to the Mortgage Loans as
provided in Section 11.01, the Trust Fund shall be terminated in accordance with
the following additional requirements, unless the Trustee has been supplied with
an Opinion of Counsel, at the expense of Avelo or Xxxxxx, as applicable, to the
effect that the failure to comply with the requirements of this Section 11.03
will not (i) result in the imposition of taxes on "prohibited transactions" on
any Trust REMIC as defined in Section 860F of the Code, or (ii) cause any Trust
REMIC to fail to qualify as a REMIC at any time that any Certificates are
Outstanding:
(a) The Securities Administrator shall sell all of the assets of the
Trust Fund to Avelo or Xxxxxx, as applicable, or its designee, and, within 90
days of such sale, shall distribute to the Certificateholders the proceeds of
such sale in complete liquidation of each of the Trust REMICs;
(b) The Securities Administrator shall sell all of the assets of the
Trust Fund to the entity that submitted the highest bid pursuant to the Auction
Call and, by the next Distribution Date after such sale, shall distribute to the
Certificateholders the proceeds of such sale in complete liquidation of each of
the Trust REMIC; and
(c) The Securities Administrator shall attach a statement to the
final federal income tax return for each of the Trust REMICs stating that
pursuant to Treasury Regulations Section 1.860F-1, the first day of the 90 day
liquidation period for each such Trust REMIC was the date on which the
Securities Administrator sold the assets of the Trust Fund to Avelo, Litton, or
the entity that submitted the highest bid received pursuant to the Auction Call,
as applicable.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment. This Agreement may be amended from time to
time by the Depositor, the Securities Administrator, the Master Servicer, each
Servicer, each Custodian and the Trustee without the consent of any of the
Certificateholders (i) to cure any ambiguity or mistake, (ii) to correct any
defective provision herein or to supplement any provision herein which may be
inconsistent with any other provision herein, (iii) to add to the duties of the
Depositor, the Securities Administrator, the Master Servicer, any Custodian or
any Servicer, (iv) to add any other provisions with respect to matters or
questions arising hereunder, (v) to modify, alter, amend, add to or rescind any
of the terms or provisions contained in this Agreement, or (vi) to comply with
any requirements in Regulation AB; provided, that any amendment pursuant to
clause (iv) or (v) above shall not, as evidenced by an Opinion of Counsel (which
Opinion of Counsel shall not be an expense of the Securities Administrator, the
Trustee or the Trust Fund), adversely affect in any material respect the
interests of any Certificateholder; provided, further, that the amendment shall
not be deemed to adversely affect in any material respect the interests of the
Certificateholders if the Person requesting the amendment obtains a letter from
each Rating Agency stating that the amendment would not result in the
downgrading or withdrawal of the respective ratings then assigned to the
Certificates; it being understood and agreed that any such letter in and of
itself will not represent a determination as to the materiality of any such
amendment and will represent a determination only as to the credit issues
affecting any such rating. Each Custodian, the Trustee, the Securities
Administrator, the Master Servicer, the Depositor and each Servicer also may at
any time and from time to time amend this Agreement, but without the consent of
the Certificateholders to modify, eliminate or add to any of its provisions to
such extent as shall be necessary or helpful to (i) maintain the qualification
of each Trust REMIC under the REMIC Provisions, (ii) avoid or minimize the risk
of the imposition of any tax on any Trust REMIC pursuant to the Code that would
be a claim at any time prior to the final redemption of the Certificates or
(iii) comply with any other requirements of the Code; provided, that the Trustee
has been provided an Opinion of Counsel, which opinion shall be an expense of
the party requesting such opinion but in any case shall not be an expense of the
Trustee or the Trust Fund, to the effect that such action is necessary or
helpful to, as applicable, (i) maintain such qualification, (ii) avoid or
minimize the risk of the imposition of such a tax or (iii) comply with any such
requirements of the Code.
This Agreement may also be amended from time to time by the
Depositor, the Securities Administrator, the Master Servicer, each Servicer,
each Custodian and the Trustee with the consent of the Holders of Certificates
evidencing Percentage Interests aggregating not less than 66(2)/3% of each Class
of Certificates affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Holders of Certificates; provided,
however, that no such amendment shall (i) reduce in any manner the amount of, or
delay the timing of, payments required to be distributed on any Certificate
without the consent of the Holder of such Certificate, (ii) adversely affect in
any material respect the interests of the Holders of any Class of Certificates
in a manner other than as described in clause (i), without the consent of the
Holders of Certificates of such Class evidencing, as to such Class, Percentage
Interests aggregating not less than 66(2)/3%, or (iii) reduce the aforesaid
percentages of Certificates the Holders of which are required to consent to any
such amendment, without the consent of the Holders of all such Certificates then
Outstanding.
Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement unless (i) it shall
have first received an Opinion of Counsel, which opinion shall not be an expense
of the Trustee or the Trust Fund, to the effect that such amendment will not
cause the imposition of any tax on any Trust REMIC or the Certificateholders or
cause any Trust REMIC to fail to qualify as a REMIC or the grantor trust to fail
to qualify as a grantor trust at any time that any Certificates are Outstanding
and (ii) the party seeking such amendment shall have provided written notice to
the Rating Agencies (with a copy of such notice to the Trustee) of such
amendment, stating the provisions of the Agreement to be amended.
Notwithstanding the foregoing provisions of this Section 12.01, with
respect to any amendment that significantly modifies the permitted activities of
the Trustee or the Servicers, any Certificate beneficially owned by the
Depositor or any of its Affiliates shall be deemed not to be Outstanding (and
shall not be considered when determining the percentage of Certificateholders
consenting or when calculating the total number of Certificates entitled to
consent) for purposes of determining if the requisite consents of
Certificateholders under this Section 12.01 have been obtained.
Promptly after the execution of any amendment to this Agreement
requiring the consent of Certificateholders, the Securities Administrator shall
furnish written notification of the substance or a copy of such amendment to
each Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders
under this Section 12.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Securities Administrator may prescribe.
Nothing in this Agreement shall require the Trustee, the Master
Servicer, the Securities Administrator or the Custodians to enter into an
amendment which modifies its obligations or liabilities without its consent and
in all cases without receiving an Opinion of Counsel (which Opinion shall not be
an expense of the Master Servicer, the Securities Administrator, the Trustee or
the Trust Fund), satisfactory to the Securities Administrator, the Master
Servicer and the Trustee that (i) such amendment is permitted and is not
prohibited by this Agreement and that all requirements for amending this
Agreement have been complied with; and (ii) either (A) the amendment does not
adversely affect in any material respect the interests of any Certificateholder
or (B) the conclusion set forth in the immediately preceding clause (A) is not
required to be reached pursuant to this Section 12.01.
Section 12.02 Recordation of Agreement; Counterparts. This Agreement
is subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the Mortgaged Properties are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected by the
Depositor at the expense of the Trust, but only upon receipt of an Opinion of
Counsel to the effect that such recordation materially and beneficially affects
the interests of the Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 12.03 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO AND THE
CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 12.04 Intention of Parties. It is the express intent of the
parties hereto that the conveyance (i) of the Mortgage Loans by the Depositor
and (ii) of the Trust Fund by the Depositor to the Trustee each be, and be
construed as, an absolute sale thereof. It is, further, not the intention of the
parties that such conveyances be deemed a pledge thereof. However, in the event
that, notwithstanding the intent of the parties, such assets are held to be the
property of the Depositor, as the case may be, or if for any other reason this
Agreement is held or deemed to create a security interest in either such assets,
then (i) this Agreement shall be deemed to be a security agreement within the
meaning of the Uniform Commercial Code of the State of New York and (ii) the
conveyances provided for in this Agreement shall be deemed to be an assignment
and a grant by the Depositor to the Trustee, for the benefit of the
Certificateholders, of a security interest in all of the assets transferred,
whether now owned or hereafter acquired.
The Depositor, for the benefit of the Certificateholders, shall, to
the extent consistent with this Agreement, take such actions as may be necessary
to ensure that, if this Agreement were deemed to create a security interest in
the Trust Fund, such security interest would be deemed to be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the term of the Agreement.
Section 12.05 Notices. (a) The Securities Administrator shall
promptly provide notice to each Rating Agency with respect to each of the
following of which it has actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Event of Default that has not been cured;
3. The resignation or termination of any Servicer, the Securities
Administrator, the Master Servicer or the Trustee and the appointment of any
successor;
4. The repurchase or substitution of Mortgage Loans pursuant to
Sections 2.03, 2.07 or 3.28; and
5. The final payment to Certificateholders.
(b) In addition, the Securities Administrator shall promptly furnish
to each Rating Agency copies of the following:
1. Each report to Certificateholders described in Section 4.03.
2. Any notice of a purchase of a Mortgage Loan pursuant to Section
3.28.
All directions, demands and notices hereunder shall be in writing
and shall be deemed to have been duly given when delivered to (a) in the case of
the Depositor, to GS Mortgage Securities Corp., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Principal Finance Group/Xxxxxxxxxxx X. Xxxxxxx and Asset
Management Group/Senior Asset Manager (and, in the case of the Officer's
Certificate delivered pursuant to Section 3.22, to PricewaterhouseCoopers LLP,
000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxx Xxxxx, Xxxxxxx 00000, Attention:
Xxxxxxxx Xxxxxxx), or such other address as may be hereafter furnished to the
Trustee, the Securities Administrator, the Master Servicer and the Servicers by
the Depositor in writing; (b) in the case of Xxxxxx, Xxxxxx Loan Servicing LP,
0000 Xxxx Xxxxxxx Xxxxx, Xxxxxxx, Xxxxx 00000, Attention: Xxxxxx XxXxxxx or such
other address as may be hereafter furnished to the Swap Provider and the other
parties hereto by Xxxxxx in writing; (c) in the case of the Trustee, to the
Corporate Trust Office, or such other address as may be hereafter furnished to
the other parties hereto by the Trustee in writing; (d) in the case of SPS,
Select Portfolio Servicing, Inc., 0000 Xxxxx Xxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx
00000, Attention: General Counsel, or such other address as may be hereafter
furnished to the Swap Provider and the other parties hereto by SPS in writing;
(e) in the case of Avelo, Avelo Mortgage L.L.C., 000 X. Xxx Xxxxxxx Xxxx., Xxxxx
000, Xxxxxx, Xxxxx 00000, Attention: President and General Counsel, or such
other address as may be hereafter furnished to the Swap Provider and the other
parties hereto by Xxxxx in writing; (f) in the case of X.X. Xxxxxx Trust
Company, to X.X. Xxxxxx Trust Company, National Association, 0000 Xxxxxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, Attention: Custody Manager, or such
other address as may be hereafter furnished to the Swap Provider and the others
parties hereto in writing; (g) in the case of U.S. Bank National Association, to
U.S. Bank National Association, 0000 Xxxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000,
Attention: Xxxx Xxxx, or such other address as may be hereafter furnished to the
Swap Provider and the other parties hereto in writing; (h) in the case of the
Deutsche Bank, to the Corporate Trust Office, Deutsche Bank National Trust
Company, 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000-4934,
Attention: Trust Administration - GS06DC, or such other address as may be
hereafter furnished to the Swap Provider and the other parties hereto in
writing; (i) in the case of Xxxxx Fargo, Xxxxx Fargo Bank, N.A., (i) for the
purpose of certificate transfers, Xxxxx Fargo Center, Sixth Street and Marquette
Avenue, Minneapolis, Minnesota 55479 and (ii) for all other purposes, 0000 Xxx
Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, or such other addresses as may be
hereafter furnished to the Swap Provider and the other parties hereto in
writing; (j) Xxxxxxx Xxxxx Mitsui Marine Derivative Products 00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel, or such other address as
may be hereafter furnished to the other parties hereto in writing and (k) in the
case of each of the Rating Agencies, the address specified therefor in the
definition corresponding to the name of such Rating Agency. Notices to
Certificateholders shall be deemed given when mailed, first class postage
prepaid, to their respective addresses appearing in the Certificate Register.
Section 12.06 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 12.07 Assignment; Sales; Advance Facilities.(a)
(b) A Servicer is hereby authorized to enter into a financing or
other facility (any such arrangement, an "Advance Facility"), the documentation
for which complies with Section 12.07(e) below, under which (1) such Servicer
assigns or pledges its rights under this Agreement to be reimbursed for any or
all Advances to (i) a Person, which may be a special-purpose bankruptcy-remote
entity (an "SPV"), (ii) a Person, which may simultaneously assign or pledge such
rights to an SPV or (iii) a lender (a "Lender"), which, in the case of any
Person or SPV of the type described in either of the preceding clauses (i) or
(ii), may directly or through other assignees and/or pledgees, assign or pledge
such rights to a Person, which may include a trustee acting on behalf of holders
of debt instruments (any such Person or any such Lender, an "Advance Financing
Person"), and/or (2) an Advance Financing Person agrees to fund all the Advances
required to be made by such Servicer pursuant to this Agreement. No consent of
the Trustee, Certificateholders or any other party shall be required before a
Servicer may enter into an Advance Facility nor shall the Trustee or the
Certificateholders be a third party beneficiary of any obligation of an Advance
Financing Person to a Servicer. Notwithstanding the existence of any Advance
Facility under which an Advance Financing Person agrees to fund Advances, (A) a
Servicer (i) shall remain obligated pursuant to this Agreement to make Advances
pursuant to and as required by this Agreement and (ii) shall not be relieved of
such obligations by virtue of such Advance Facility and (B) neither the Advance
Financing Person nor any Servicer's Assignee (as hereinafter defined) shall have
any right to proceed against or otherwise contact any Mortgagor for the purpose
of collecting any payment that may be due with respect to any related Mortgage
Loan or enforcing any covenant of such Mortgagor under the related Mortgage Loan
documents.
(c) If a Servicer enters into an Advance Facility, such Servicer and
the related Advance Financing Person shall deliver to the Securities
Administrator at the address set forth in Section 12.05 hereof a written notice
(an "Advance Facility Notice"), stating (a) the identity of the Advance
Financing Person and (b) the identity of the Person (the "Servicer's Assignee")
that will, subject to Section 12.07(c) hereof, have the right to make
withdrawals from the Collection Account pursuant to Section 3.11 hereof to
reimburse previously unreimbursed Advances ("Advance Reimbursement Amounts").
Advance Reimbursement Amounts (i) shall consist solely of amounts in respect of
Advances for which such Servicer would be permitted to reimburse itself in
accordance with Section 3.11 hereof, assuming such Servicer had made the related
Advance(s) and (ii) shall not consist of amounts payable to a successor Servicer
in accordance with Section 3.11 hereof to the extent permitted under Section
12.07(e) below.
(d) Notwithstanding the existence of an Advance Facility, a
Servicer, on behalf of the Advance Financing Person and that Servicer's
Assignee, shall be entitled to receive reimbursements of Advances in accordance
with Section 3.11 hereof, which entitlement may be terminated by the Advance
Financing Person pursuant to a written notice to the Trustee in the manner set
forth in Section 12.05 hereof. Upon receipt of such written notice, such
Servicer shall no longer be entitled to receive reimbursement for any Advance
Reimbursement Amounts and that Servicer's Assignee shall immediately have the
right to receive from the Collection Account all Advance Reimbursement Amounts.
Notwithstanding the foregoing, and for the avoidance of doubt, (i) a Servicer
and/or the Servicer's Assignee shall only be entitled to reimbursement of
Advance Reimbursement Amounts hereunder from withdrawals from the Collection
Account pursuant to Section 3.11 of this Agreement and shall not otherwise be
entitled to make withdrawals of, or receive, amounts that shall be deposited in
the Distribution Account pursuant to Sections 3.11(a)(i) and 3.27(b) hereof, and
(ii) none of the Trustee or the Certificateholders shall have any right to, or
otherwise be entitled to, receive any Advance Reimbursement Amounts to which
such Servicer or such Servicer's Assignee, as applicable, shall be entitled
pursuant to Section 3.11 hereof. An Advance Facility may be terminated by the
joint written direction of such Servicer and the related Advance Financing
Person. Written notice of such termination shall be delivered to the Trustee in
the manner set forth in Section 12.05 hereof. None of the Depositor or the
Trustee shall, as a result of the existence of any Advance Facility, have any
additional duty or liability with respect to the calculation or payment of any
Advance Reimbursement Amount, nor, as a result of the existence of any Advance
Facility, shall the Depositor or the Trustee have any additional responsibility
to track or monitor the administration of the Advance Facility or the payment of
Advance Reimbursement Amounts to such Servicer's Assignee. The applicable
Servicer shall indemnify the Depositor, the Securities Administrator, the Master
Servicer, the Trustee, any successor Servicer and the Trust Fund for any claim,
loss, liability or damage resulting from any claim by the related Advance
Financing Person, except to the extent that such claim, loss, liability or
damage resulted from or arose out of negligence, recklessness or willful
misconduct on the part of the Depositor, the Trustee or any successor Servicer,
as the case may be, or failure by the successor Servicer or the Trustee, as the
case may be, to remit funds as required by this Agreement. The applicable
Servicer shall maintain and provide to any successor Servicer and, upon request,
the Trustee a detailed accounting on a loan-by-loan basis as to amounts advanced
by, pledged or assigned to, and reimbursed to any Advance Financing Person. The
successor Servicer shall be entitled to rely on any such information provided by
the predecessor Servicer, and the successor Servicer shall not be liable for any
errors in such information.
(e) An Advance Financing Person who receives an assignment or pledge
of rights to receive Advance Reimbursement Amounts and/or whose obligations are
limited to the funding of Advances pursuant to an Advance Facility shall not be
required to meet the criteria for qualification as a Subservicer.
(f) As between a predecessor Servicer and its Advance Financing
Person, on the one hand, and a successor Servicer and its Advance Financing
Person, if any, on the other hand, Advance Reimbursement Amounts on a
loan-by-loan basis with respect to each Mortgage Loan as to which an Advance
shall have been made and be outstanding shall be allocated on a "first-in, first
out" basis. In the event such Servicer's Assignee shall have received some or
all of an Advance Reimbursement Amount related to Advances that were made by a
Person other than such predecessor Servicer or its related Advance Financing
Person in error, then such Servicer's Assignee shall be required to remit any
portion of such Advance Reimbursement Amount to each Person entitled to such
portion of such Advance Reimbursement Amount. Without limiting the generality of
the foregoing, such Servicer shall remain entitled to be reimbursed by the
Advance Financing Person for all Advances funded by such Servicer to the extent
the related Advance Reimbursement Amounts have not been assigned or pledged to
such Advance Financing Person or that Servicer's Assignee.
(g) For purposes of any Officer's Certificate of any Servicer made
pursuant to Section 4.01(d), any Nonrecoverable P&I Advance or Nonrecoverable
Servicing Advance referred to therein may have been made by such Servicer or any
predecessor Servicer. In making its determination that any Advance or Servicing
Advance theretofore made has become a Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance, such Servicer shall apply the same criteria in
making such determination regardless of whether such Advance or Servicing
Advance shall have been made by such Servicer or any predecessor Servicer.
(h) Any amendment to this Section 12.07 or to any other provision of
this Agreement that may be necessary or appropriate to effect the terms of an
Advance Facility as described generally in this Section 12.07, including
amendments to add provisions relating to a successor Servicer, may be entered
into by the Securities Administrator, the Master Servicer, Trustee, the
Depositor and each Servicer without the consent of any Certificateholder,
provided such amendment complies with Section 12.01 hereof. All reasonable costs
and expenses (including attorneys' fees) of each party hereto of any such
amendment shall be borne solely by each Servicer. The parties hereto hereby
acknowledge and agree that: (a) the Advances financed by and/or pledged to an
Advance Financing Person under any Advance Facility are obligations owed to such
Servicer payable only from the cash flows and proceeds received under this
Agreement for reimbursement of Advances only to the extent provided herein, and
the Trustee and the Trust are not, as a result of the existence of any Advance
Facility, obligated or liable to repay any Advances financed by the Advance
Financing Person; (b) such Servicer will be responsible for remitting to the
Advance Financing Person the applicable amounts collected by it as reimbursement
for Advances funded by the Advance Financing Person, subject to the provisions
of this Agreement; and (c) the Trustee shall not have any responsibility to
track or monitor the administration of the financing arrangement between such
applicable Servicer and any Advance Financing Person.
Section 12.08 Limitation on Rights of Certificateholders. The death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust created hereby, nor entitle such Certificateholder's
legal representative or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a petition or winding up of the Trust
created hereby, or otherwise affect the rights, obligations and liabilities of
the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as
provided herein) or in any manner otherwise control the operation and management
of the Trust Fund, or the obligations of the parties hereto, nor shall anything
herein set forth or contained in the terms of the Certificates be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to any
third party by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement,
unless such Holder previously shall have given to the Trustee a written notice
of an Event of Default and of the continuance thereof, as herein provided, and
unless the Holders of Certificates evidencing not less than 25% of the Voting
Rights evidenced by the Certificates shall also have made written request to the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses, and liabilities to be incurred therein
or thereby, and the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity shall have neglected or refused to institute any
such action, suit or proceeding; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or seek
to obtain priority over or preference to any other such Holder or to enforce any
right under this Agreement, except in the manner herein provided and for the
common benefit of all Certificateholders. For the protection and enforcement of
the provisions of this Section 12.08, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 12.09 Inspection and Audit Rights. Each Servicer agrees that
on reasonable prior notice, it will permit any representative of the Depositor,
the Master Servicer or the Trustee during such Servicer's normal business hours,
to examine all the books of account, records, reports and other papers of such
Servicer relating to the applicable Mortgage Loans, to make copies and extracts
therefrom, to cause such books to be audited by independent certified public
accountants selected by the Depositor, the Master Servicer or the Trustee and to
discuss its affairs, finances and accounts relating to such Mortgage Loans with
its officers, employees and independent public accountants (and by this
provision each Servicer hereby authorizes said accountants to discuss with such
representative such affairs, finances and accounts), all at such reasonable
times and as often as may be reasonably requested. Any reasonable out-of-pocket
expense of a Servicer incident to the exercise by the Depositor, the Master
Servicer or the Trustee of any right under this Section 12.09 shall be borne by
the party making the request (except in the case of requests made by the
Trustee, such expenses shall be borne by such Servicer). Each Servicer may
impose commercially reasonable restrictions on dissemination of information such
Servicer defines as confidential.
Nothing in this Section 12.09 shall limit the obligation of each
Servicer to observe any applicable law prohibiting disclosure of information
regarding the Mortgagors and the failure of such Servicer to provide access as
provided in this Section 12.09 as a result of such obligation shall not
constitute a breach of this Section. Nothing in this Section 12.09 shall require
each Servicer to collect, create, collate or otherwise generate any information
that it does not generate in its usual course of business. Each Servicer shall
not be required to make copies of or to ship documents to any Person who is not
a party to this Agreement, and then only if provisions have been made for the
reimbursement of the costs thereof.
Section 12.10 Certificates Nonassessable and Fully Paid. It is the
intention of the Depositor that Certificateholders shall not be personally
liable for obligations of the Trust Fund, that the interests in the Trust Fund
represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Securities Administrator pursuant to this Agreement, are and shall be deemed
fully paid.
Section 12.11 Waiver of Jury Trial. EACH PARTY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES (TO THE EXTENT PERMITTED BY APPLICABLE LAW)
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR
RELATING TO THIS AGREEMENT AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED
BEFORE A JUDGE SITTING WITHOUT A JURY.
Section 12.12 Limitation of Damages. NOTWITHSTANDING ANYTHING
CONTAINED HEREIN TO THE CONTRARY, THE PARTIES AGREE THAT NO PARTY SHALL BE
LIABLE TO ANY OTHER PARTY FOR ANY 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.
Section 12.13 Rights of the Swap Provider. The Swap Provider shall
be deemed a third-party beneficiary of this Agreement to the same extent as if
it were a party hereto and shall have the right to enforce its rights under this
Agreement.
Section 12.14 No Solicitation. From and after the Closing Date, each
Servicer agrees that it will not take any action or cause any action to be taken
by any of its agents or Affiliates, or by any independent contractors or
independent mortgage brokerage companies on its behalf, to personally, by
telephone, mail or electronic mail, specifically target through direct
solicitations, the Mortgagors under the Mortgage Loans for the purpose of
refinancing such Mortgage Loans; provided, however, that it is understood and
agreed that promotions undertaken by such Servicer or any of its Affiliates
which (i) concern optional insurance products (excluding single premium
insurance) or other financial products or services (excluding any mortgage
related products such as home equity lines of credit and second mortgage
products), or (ii) are directed to the general public at large or certain
segments thereof exclusive of the Mortgagors as a targeted group and, including
mass mailings based on commercially acquired mailing lists, newspaper, radio and
television advertisements shall not constitute solicitation under this Section
12.14, nor is such Servicer prohibited from responding to unsolicited requests
or inquiries made by a Mortgagor or his or her agent.
Section 12.15 Regulation AB Compliance; Intent of the Parties;
Reasonableness. The parties hereto acknowledge 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 asset-backed securities markets, advice of counsel, or otherwise, and
agree 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. In connection with the Trust, the Securities
Administrator, the Master Servicer, each Servicer, the Trustee and each
Custodian shall cooperate fully with the Depositor to deliver to the Depositor
(including its assignees or designees), any and all statements, reports,
certifications, records and any other information available to such party and
reasonably necessary in the good faith determination of the Depositor to permit
the Depositor to comply with the provisions of Regulation AB.
* * * * * * *
IN WITNESS WHEREOF, the Depositor, the Trustee, the Securities
Administrator, the Master Servicer, each Custodian and each Servicer have caused
their names to be signed hereto by their respective officers thereunto duly
authorized as of the day and year first above written.
GS MORTGAGE SECURITIES CORP.,
as Depositor
By: /s/ Xxxxxxxx Xxxx
------------------------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
XXXXXX LOAN SERVICING LP,
as Servicer
By: /s/ Xxxxxx XxXxxxx
------------------------------------
Name: Xxxxxx XxXxxxx
Title: Senior Vice President
SELECT PORTFOLIO SERVICING, INC.,
as Servicer
By: /s/ Xxxxxxx X. X'Xxxxx
------------------------------------
Name: Xxxxxxx X. X'Xxxxx
Title: EVP of Operations
AVELO MORTGAGE, L.L.C.,
as Servicer
By: /s/ X. Xxxxxx Xxxxxxx
------------------------------------
Name: X. Xxxxxx Xxxxxxx
Title: President
XXXXX FARGO BANK, N.A.,
as Master Servicer and Securities
Administrator
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
X.X. XXXXXX TRUST COMPANY, NATIONAL
ASSOCIATION, as Custodian
By: /s/ Xxxxx Xxxx
------------------------------------
Name: Xxxxx Xxxx
Title: AVP
U.S. BANK NATIONAL ASSOCIATION, as
Custodian
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Assistant Vice President
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Custodian
By: /s/ Xxxxxx Xxxx
------------------------------------
Name: Xxxxxx Xxxx
Title: Associate
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION,
solely as Trustee and not in its
individual capacity
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
Title: Assistant Vice President
SCHEDULE I
Mortgage Loan Schedule
(Delivered to the Securities Administrator and the Servicers and the applicable
Custodian and not attached to the Pooling and Servicing Agreement)
SCHEDULE II
GSAMP Mortgage Loan Trust 2006-HE3,
Mortgage Pass-Through Certificates
Representations and Warranties of Xxxxxx Loan Servicing XX
Xxxxxx Loan Servicing LP ("Xxxxxx") hereby makes the representations
and warranties set forth in this Schedule II to the Depositor, the Securities
Administrator, the Master Servicer and the Trustee, as of the Closing Date, or
if so specified herein, as of the Cut-off Date. Capitalized terms used but not
otherwise defined in this Schedule II shall have the meanings ascribed thereto
in the Pooling and Servicing Agreement (the "Pooling and Servicing Agreement")
relating to the above-referenced Series.
(1) Xxxxxx is a Delaware limited partnership, validly existing and
in good standing under the laws of the State of Delaware and is duly
authorized and qualified to transact any and all business contemplated by
this Pooling and Servicing Agreement to be conducted by Xxxxxx in any
state in which a Mortgaged Property is located or is otherwise not
required under applicable law to effect such qualification and, in any
event, is in compliance with the doing business laws of any such State, to
the extent necessary to ensure its ability to enforce each Mortgage Loan
and to service the Mortgage Loans in accordance with the terms of this
Pooling and Servicing Agreement;
(2) Xxxxxx has the full power and authority to service each Mortgage
Loan, and to execute, deliver and perform, and to enter into and
consummate the transactions contemplated by this Pooling and Servicing
Agreement and has duly authorized by all necessary action on the part of
Xxxxxx the execution, delivery and performance of this Pooling and
Servicing Agreement; and this Pooling and Servicing Agreement, assuming
the due authorization, execution and delivery thereof by the Depositor,
the Securities Administrator, the Master Servicer, each Custodian and the
Trustee, constitutes a legal, valid and binding obligation of Xxxxxx,
enforceable against Xxxxxx in accordance with its terms, except to the
extent that (a) the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws relating to
creditors' rights generally and (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to the
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought;
(3) The execution and delivery of this Pooling and Servicing
Agreement by Xxxxxx, the servicing of the Mortgage Loans by Xxxxxx
hereunder, the consummation by Xxxxxx of any other of the transactions
herein contemplated, and the fulfillment of or compliance with the terms
hereof are in the ordinary course of business of Xxxxxx and will not (A)
result in a breach of any term or provision of the organizational
documents of Xxxxxx or (B) conflict with, result in a breach, violation or
acceleration of, or result in a default under, the terms of any other
material agreement or instrument to which Xxxxxx is a party or by which it
may be bound, or any statute, order or regulation applicable to Xxxxxx of
any court, regulatory body, administrative agency or governmental body
having jurisdiction over Xxxxxx; and Xxxxxx is not a party to, bound by,
or in breach or violation of any indenture or other agreement or
instrument, or subject to or in violation of any statute, order or
regulation of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it, which materially and
adversely affects or, to Litton's knowledge, would in the future
materially and adversely affect, (x) the ability of Xxxxxx to perform its
obligations under this Pooling and Servicing Agreement or (y) the
business, operations, financial condition, properties or assets of Xxxxxx
taken as a whole;
(4) Xxxxxx is an approved seller/servicer for Xxxxxx Xxx and an
approved servicer for Freddie Mac in good standing;
(5) No litigation is pending against Xxxxxx that would materially
and adversely affect the execution, delivery or enforceability of this
Pooling and Servicing Agreement or the ability of Xxxxxx to service the
Mortgage Loans or to perform any of its other obligations hereunder in
accordance with the terms hereof;
(6) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by Xxxxxx of, or compliance by Xxxxxx with, this Pooling and
Servicing Agreement or the consummation by Xxxxxx of the transactions
contemplated by this Pooling and Servicing Agreement, except for such
consents, approvals, authorizations or orders, if any, that have been
obtained prior to the Closing Date;
(7) Xxxxxx covenants that it possesses the ability and processes
necessary to service the Mortgage Loans in accordance with the terms of
this Pooling and Servicing Agreement; and
(8) With respect to each Mortgage Loan, to the extent Xxxxxx
serviced such Mortgage Loan and to the extent Xxxxxx provided monthly
reports to the three credit repositories, Xxxxxx has fully furnished, in
accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (i.e., favorable and
unfavorable) on its borrower credit files to Equifax, Experian, and Trans
Union Credit Information Company (three of the credit repositories), on a
monthly basis.
SCHEDULE III
GSAMP Mortgage Loan Trust 2006-HE3,
Mortgage Pass-Through Certificates
Representations and Warranties of Select Portfolio Servicing, Inc.
Select Portfolio Servicing, Inc. ("SPS") hereby makes the
representations and warranties set forth in this Schedule III to the Depositor,
the Securities Administrator, the Master Servicer and the Trustee, as of the
Closing Date, or if so specified herein, as of the Cut-off Date. Capitalized
terms used but not otherwise defined in this Schedule III shall have the
meanings ascribed thereto in the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement") relating to the above-referenced Series.
(i) SPS is a corporation duly formed, validly existing and in good
standing under the laws of the jurisdiction of its incorporation and is
qualified under the laws of each state where required by applicable law or
is otherwise exempt under applicable law from such qualification.
(ii) SPS has all requisite corporate power, authority and capacity
to enter into the Pooling and Servicing Agreement and to perform the
obligations required of it thereunder. The Pooling and Servicing Agreement
(assuming the due authorization and execution of the Pooling and Servicing
Agreement by the other parties thereto) constitutes a valid and legally
binding agreement of SPS enforceable in accordance with its terms, except
as such enforceability may be limited by bankruptcy, insolvency,
moratorium, reorganization and similar laws, and by equitable principles
affecting the enforceability of the rights of creditors.
(iii) None of the execution and delivery of the Pooling and
Servicing Agreement, the consummation of any other transaction
contemplated therein, or the fulfillment of or compliance with the terms
of the Pooling and Servicing Agreement, will result in the breach of, or
constitute a default under, any term or provision of the organizational
documents of SPS or conflict with, result in a material breach, violation
or acceleration of or constitute a material default under, the terms of
any indenture or other agreement or instrument to which SPS is a party or
by which it is bound, or any statute, order, judgment, or regulation
applicable to SPS of any court, regulatory body, administrative agency or
governmental body having jurisdiction over SPS.
(iv) There is no action, suit, proceeding or investigation pending,
or to SPS's knowledge threatened, against SPS before any court,
administrative agency or other tribunal (a) asserting the invalidity of
the Pooling and Servicing Agreement, (b) seeking to prevent the
consummation of any of the transactions contemplated thereby or (c) which
might reasonably be expected to materially and adversely affect the
performance by SPS of its obligations under, or the validity or
enforceability of, the Pooling and Servicing Agreement.
(v) No consent, approval, authorization or order of any court,
regulatory body or governmental agency or court is required, under state
or federal law prior to the execution, delivery and performance by SPS of
the Pooling and Servicing Agreement or the consummation of the
transactions contemplated by the Pooling and Servicing Agreement.
SCHEDULE IV
GSAMP Mortgage Loan Trust 2006-HE3,
Mortgage Pass-Through Certificates
Representations and Warranties of Avelo Mortgage, L.L.C.
Avelo Mortgage, L.L.C. ("Avelo") hereby makes the representations
and warranties set forth in this Schedule IV to the Depositor, the Securities
Administrator, the Master Servicer and the Trustee, as of the Closing Date.
Capitalized terms used but not otherwise defined in this Schedule IV shall have
the meanings ascribed thereto in the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement") relating to the above-referenced Series.
(a) Due Organization and Authority.(b) Avelo is a Delaware limited
liability company duly organized, validly existing and in good standing under
the laws of Delaware and has all licenses necessary to carry on its business as
now being conducted and is licensed, qualified and in good standing in each
state where a Mortgaged Property is located if the laws of such state require
licensing or qualification in order to conduct business of the type conducted by
Avelo, and in any event Avelo is in compliance with the laws of any such state
to the extent necessary to ensure the enforceability of the related Mortgage
Loan in accordance with the terms of this Pooling and Servicing Agreement; Avelo
has the full power and authority to execute and deliver this Pooling and
Servicing Agreement and to perform in accordance herewith; the execution,
delivery and performance of this Pooling and Servicing Agreement (including all
instruments of transfer to be delivered pursuant to this Pooling and Servicing
Agreement) by Avelo and the consummation of the transactions contemplated hereby
have been duly and validly authorized; this Pooling and Servicing Agreement
evidences the valid, binding and enforceable obligation of Avelo; and all
requisite action has been taken by Avelo to make this Pooling and Servicing
Agreement valid and binding upon Avelo in accordance with its terms;
(c) Ordinary Course of Business. The consummation of the
transactions contemplated by this Pooling and Servicing Agreement are in the
ordinary course of business of Avelo.
(d) No Conflicts. Neither the execution and delivery of this Pooling
and Servicing Agreement, nor the fulfillment of or compliance with the terms and
conditions of this Pooling and Servicing Agreement, will conflict with or result
in a breach of any of the terms, conditions or provisions of Avelo's certificate
of formation or limited liability company agreement or any legal restriction or
any agreement or instrument to which Avelo is now a party or by which it is
bound, or constitute a default or result in an acceleration under any of the
foregoing, or result in the violation of any law, rule, regulation, order,
judgment or decree to which Avelo or its property is subject, or impair the
ability of the Sponsor to realize on the Mortgage Loans, or impair the value of
the Mortgage Loans.
(e) Ability to Service. Avelo has the facilities, procedures, and
experienced personnel necessary for the sound servicing of mortgage loans of the
same type as the Mortgage Loans. Avelo is in good standing to enforce and
service mortgage loans in the jurisdiction wherein the Mortgaged Properties are
located.
(f) Ability to Perform. Avelo does not believe, nor does it have any
reason or cause to believe, that it cannot perform each and every covenant
contained in this Pooling and Servicing Agreement.
(g) No Litigation Pending. There is no action, suit, proceeding or
investigation pending or to the best of Servicer's knowledge threatened against
Avelo, before any court, administrative agency or other tribunal asserting the
invalidity of this Pooling and Servicing Agreement, seeking to prevent the
consummation of any of the transactions contemplated by this Pooling and
Servicing Agreement or which, either in any one instance or in the aggregate,
may result in any material adverse change in the business, operations, financial
condition, properties or assets of Avelo, or in any material impairment of the
right or ability of Avelo to carry on its business substantially as now
conducted, or in any material liability on the part of Avelo, or which would
draw into question the validity of this Pooling and Servicing Agreement, or the
Mortgage Loans or of any action taken or to be taken in connection with the
obligations of Avelo contemplated herein, or which would be likely to impair
materially the ability of Avelo to perform under the terms of this Pooling and
Servicing Agreement.
(h) No Consent Required. No consent, approval, authorization or
order of any court or governmental agency or body is required for the execution,
delivery and performance by Avelo of or compliance by Avelo with this Pooling
and Servicing Agreement, or the servicing of the Mortgage Loans as evidenced by
the consummation of the transactions contemplated by this Pooling and Servicing
Agreement, or if required, such approval has been obtained prior to the date
hereof.
(i) No Untrue Information.(j) No statement, report or other document
relating to Avelo furnished or to be furnished by Avelo pursuant to this Pooling
and Servicing Agreement or in connection with the transactions contemplated
hereby contains any untrue statement of material fact or omits to state a
material fact necessary to make the statements contained therein not misleading.
SCHEDULE V
GSAMP Mortgage Loan Trust 2006-HE3,
Mortgage Pass-Through Certificates
Representations and Warranties of
X.X. Xxxxxx Trust Company, National Association, as Custodian
X.X. Xxxxxx Trust Company, National Association ("X.X. Xxxxxx Trust
Company") hereby makes the representations and warranties set forth in this
Schedule V to the Depositor, the Servicer and the Trustee, as of the Closing
Date, or if so specified herein, as of the Cut-off Date:
(1) X.X. Xxxxxx Trust Company is a national trust company duly
organized, validly existing and in good standing under the federal laws of
the United States of America and is duly authorized and qualified to
transact any and all business contemplated by this Pooling and Servicing
Agreement to be conducted by X.X. Xxxxxx Trust Company;
(2) X.X. Xxxxxx Trust Company has the full power and authority to
execute, deliver and perform, and to enter into and consummate the
transactions contemplated by this Pooling and Servicing Agreement and has
duly authorized by all necessary action on the part of X.X. Xxxxxx Trust
Company the execution, delivery and performance of this Pooling and
Servicing Agreement; and this Pooling and Servicing Agreement, assuming
the due authorization, execution and delivery thereof by the Depositor,
the Servicer and the Trustee, constitutes a legal, valid and binding
obligation of X.X. Xxxxxx Trust Company, enforceable against X.X. Xxxxxx
Trust Company in accordance with its terms, except to the extent that (a)
the enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to creditors'
rights generally and (b) the remedy of specific performance and injunctive
and other forms of equitable relief may be subject to the equitable
defenses and to the discretion of the court before which any proceeding
therefor may be brought;
(3) The execution and delivery of this Pooling and Servicing
Agreement by X.X. Xxxxxx Trust Company, the consummation by X.X. Xxxxxx
Trust Company of any other of the transactions herein contemplated, and
the fulfillment of or compliance with the terms hereof are in the ordinary
course of business of X.X. Xxxxxx Trust Company and will not (A) result in
a breach of any term or provision of the organizational documents of X.X.
Xxxxxx Trust Company or (B) conflict with, result in a breach, violation
or acceleration of, or result in a default under, the terms of any other
material agreement or instrument to which X.X. Xxxxxx Trust Company is a
party or by which it may be bound, or any statute, order or regulation
applicable to X.X. Xxxxxx Trust Company of any court, regulatory body,
administrative agency or governmental body having jurisdiction over X.X.
Xxxxxx Trust Company; and X.X. Xxxxxx Trust Company is not a party to,
bound by, or in breach or violation of any indenture or other agreement or
instrument, or subject to or in violation of any statute, order or
regulation of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it, which materially and
adversely affects or, to X.X. Xxxxxx Trust Company's knowledge, would in
the future materially and adversely affect, (x) the ability of X.X. Xxxxxx
Trust Company to perform its obligations under this Pooling and Servicing
Agreement or (y) the business, operations, financial condition, properties
or assets of X.X. Xxxxxx Trust Company taken as a whole;
(4) No litigation is pending against X.X. Xxxxxx Trust Company that
would materially and adversely affect the execution, delivery or
enforceability of this Pooling and Servicing Agreement or the ability of
X.X. Xxxxxx Trust Company to perform any of its obligations hereunder in
accordance with the terms hereof; and
(5) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by X.X. Xxxxxx Trust Company of, or compliance by X.X. Xxxxxx
Trust Company with, this Pooling and Servicing Agreement or the
consummation by X.X. Xxxxxx Trust Company of the transactions contemplated
by this Pooling and Servicing Agreement, except for such consents,
approvals, authorizations or orders, if any, that have been obtained prior
to the Closing Date.
SCHEDULE VI
GSAMP Mortgage Loan Trust 2006-HE3,
Mortgage Pass-Through Certificates
Representations and Warranties of
U.S. Bank National Association, a national banking association, as
Custodian
U.S. Bank National Association, a national banking association
("U.S. Bank") hereby makes the representations and warranties set forth in this
Schedule VI to the Depositor, the Servicer and the Trustee, as of the Closing
Date, or if so specified herein, as of the Cut-off Date:
(1) U.S. Bank is a national banking association duly organized,
validly existing and in good standing under the federal laws of the United
States of America and is duly authorized and qualified to transact any and
all business contemplated by this Pooling and Servicing Agreement to be
conducted by U.S. Bank;
(2) U.S. Bank has the full power and authority to execute, deliver
and perform, and to enter into and consummate the transactions
contemplated by this Pooling and Servicing Agreement and has duly
authorized by all necessary action on the part of U.S. Bank the execution,
delivery and performance of this Pooling and Servicing Agreement; and this
Pooling and Servicing Agreement, assuming the due authorization, execution
and delivery thereof by the Depositor, the Servicer and the Trustee,
constitutes a legal, valid and binding obligation of U.S. Bank,
enforceable against U.S. Bank in accordance with its terms, except to the
extent that (a) the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws relating to
creditors' rights generally and (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to the
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought;
(3) The execution and delivery of this Pooling and Servicing
Agreement by U.S. Bank, the consummation by U.S. Bank of any other of the
transactions herein contemplated, and the fulfillment of or compliance
with the terms hereof are in the ordinary course of business of U.S. Bank
and will not (A) result in a breach of any term or provision of the
organizational documents of U.S. Bank or (B) conflict with, result in a
breach, violation or acceleration of, or result in a default under, the
terms of any other material agreement or instrument to which U.S. Bank is
a party or by which it may be bound, or any statute, order or regulation
applicable to U.S. Bank of any court, regulatory body, administrative
agency or governmental body having jurisdiction over U.S. Bank; and U.S.
Bank is not a party to, bound by, or in breach or violation of any
indenture or other agreement or instrument, or subject to or in violation
of any statute, order or regulation of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it,
which materially and adversely affects or, to U.S. Bank's knowledge, would
in the future materially and adversely affect, (x) the ability of U.S.
Bank to perform its obligations under this Pooling and Servicing Agreement
or (y) the business, operations, financial condition, properties or assets
of U.S. Bank taken as a whole;
(4) No litigation is pending against U.S. Bank that would materially
and adversely affect the execution, delivery or enforceability of this
Pooling and Servicing Agreement or the ability of U.S. Bank to perform any
of its obligations hereunder in accordance with the terms hereof; and
(5) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by U.S. Bank of, or compliance by U.S. Bank with, this Pooling
and Servicing Agreement or the consummation by U.S. Bank of the
transactions contemplated by this Pooling and Servicing Agreement, except
for such consents, approvals, authorizations or orders, if any, that have
been obtained prior to the Closing Date.
SCHEDULE VII
GSAMP Mortgage Loan Trust 2006-HE3,
Mortgage Pass-Through Certificates
Representations and Warranties of
Deutsche Bank National Trust Company, a national banking association,
as Custodian
Deutsche Bank National Trust Company ("Deutsche Bank") hereby makes
the representations and warranties set forth in this Schedule VII to the
Depositor, the Master Servicer, the Servicer, the Securities Administrator and
the Trustee, as of the Closing Date, or if so specified herein, as of the
Cut-off Date:
(1) Deutsche Bank is duly organized and is validly existing and in
good standing under the laws of its jurisdiction of incorporation and is
duly authorized and qualified to transact any and all business
contemplated by this Agreement to be conducted by Deutsche Bank or is
otherwise not required under applicable law to effect such qualification
and, in any event, is in compliance with the doing business laws of any
such state, to the extent necessary to perform any of its obligations
under this Agreement in accordance with the terms thereof.
(2) Deutsche Bank has the full power and authority to execute,
deliver and perform, and to enter into and consummate the transactions
contemplated by this Agreement and has duly authorized by all necessary
action on the part of Deutsche Bank the execution, delivery and
performance of this Agreement; and this Agreement, assuming the due
authorization, execution and delivery thereof by the other parties
thereto, constitutes a legal, valid and binding obligation of Deutsche
Bank, enforceable against Deutsche Bank in accordance with its terms,
except that (i) the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws relating to
creditors' rights generally and (ii) the remedy of specific performance
and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by Deutsche Bank,
the consummation of any other of the transactions contemplated by this
Agreement, and the fulfillment of or compliance with the terms thereof are
in the ordinary course of business of Deutsche Bank and will not result in
a material breach of any term or provision of the articles of association
or bylaws of Deutsche Bank.
EXHIBIT A-1
FORM OF CLASS A, CLASS M AND CLASS B CERTIFICATES
[To be added to the Class B-1 and Class B-2 Certificates while they remain
Private Certificates: IF THIS CERTIFICATE IS A PHYSICAL CERTIFICATE, NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEROR DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFEROR CERTIFICATE
(THE "TRANSFEROR CERTIFICATE") IN THE FORM OF EXHIBIT I TO THE AGREEMENT
REFERRED TO HEREIN AND EITHER (I) THE SECURITIES ADMINISTRATOR RECEIVES A RULE
144A LETTER (THE "144A LETTER") IN THE FORM OF EXHIBIT J TO THE AGREEMENT
REFERRED TO HEREIN OR A LETTER (THE "NON-RULE 144A INVESTMENT LETTER") IN THE
FORM OF EXHIBIT K TO THE AGREEMENT REFERRED TO HEREIN OR (II) THE SECURITIES
ADMINISTRATOR RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE
TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
IF THIS CERTIFICATE IS A BOOK-ENTRY CERTIFICATE, THE PROPOSED TRANSFEROR WILL BE
DEEMED TO HAVE MADE EACH OF THE CERTIFICATIONS SET FORTH IN THE TRANSFEROR
CERTIFICATE AND THE PROPOSED TRANSFEREE WILL BE DEEMED TO HAVE MADE EACH OF THE
CERTIFICATIONS SET FORTH IN THE RULE 144A LETTER, IN EACH CASE AS IF SUCH
CERTIFICATE WERE EVIDENCED BY A PHYSICAL CERTIFICATE.
In the event that a transfer of a Private Certificate which is a Book-Entry
Certificate is to be made in reliance upon an exemption from the Securities Act
and such laws, in order to assure compliance with the Securities Act and such
laws, the Certificateholder desiring to effect such transfer will be deemed to
have made as of the transfer date each of the certifications set forth in the
Transferor Certificate in respect of such Certificate and the transferee will be
deemed to have made as of the transfer date each of the certifications set forth
in the Rule 144A Letter in respect of such Certificate, in each case as if such
Certificate were evidenced by a Physical Certificate.]
Unless this Certificate is presented by an authorized representative of the
Depository Trust Company, a New York corporation ("DTC"), to Issuer or its agent
for registration of transfer, exchange, or payment, and any certificate issued
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN
INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT,"
AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), AND CERTAIN OTHER
ASSETS.
AS LONG AS THE INTEREST RATE SWAP AGREEMENT IS IN EFFECT, EACH BENEFICIAL OWNER
OF THIS CERTIFICATE, OR ANY INTEREST THEREIN, SHALL BE DEEMED TO HAVE
REPRESENTED THAT EITHER (I) IT IS NOT AN EMPLOYEE BENEFIT PLAN OR ARRANGEMENT
SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A
PLAN SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE, NOR A PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR ARRANGEMENT NOR USING THE ASSETS OF ANY SUCH PLAN OR
ARRANGEMENT OR (II) THE ACQUISITION AND HOLDING OF THIS CERTIFICATE ARE ELIGIBLE
FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER AT LEAST ONE OF PROHIBITED TRANSACTION
CLASS EXEMPTION ("PTCE") 84-14, PTCE 90-1, PTCE 91-8, PTCE 95-60 OR PTCE 96-23
OR A COMPARABLE EXEMPTION AVAILABLE UNDER SIMILAR LAW.
Certificate No. :
Cut-off Date : May 1, 2006
First Distribution Date : June 27, 2006
Initial Certificate Balance
of this Certificate
("Denomination") :
Initial Certificate Balances
of all Certificates of this Class Certificate
Class : Class Balance
----------------------- ----------------------
Class A-1 $ 304,472,000
Class A-2A $ 517,353,000
Class A-2B $ 176,107,000
Class A-2C $ 151,980,000
Class A-2D $ 49,697,000
Class M-1 $ 63,053,000
Class M-2 $ 59,063,000
Class M-3 $ 35,916,000
Class M-4 $ 31,926,000
Class M-5 $ 29,531,000
Class M-6 $ 27,137,000
Class M-7 $ 25,540,000
Class M-8 $ 22,348,000
Class M-9 $ 19,156,000
Class B-1 $ 19,155,000
Class B-2 $ 17,559,000
CUSIP : Class CUSIP No.
----------------------- ----------------------
Class A-1 36244K AA 3
Class A-2A 36244K AB 1
Class A-2B 36244K AC 9
Class A-2C 36244K AD 7
Class A-2D 36244K AE 5
Class M-1 36244K AF 2
Class M-2 36244K AG 0
Class M-3 36244K AH 8
Class M-4 36244K AJ 4
Class M-5 36244K AK 1
Class M-6 36244K AL 9
Class M-7 36244K AM 7
Class M-8 36244K AN 5
Class M-9 36244K AP 0
Class B-1 36244K AV 7
Class B-2 36244K AW 5
ISIN : Class A-1 US36244KAA34
Class A-2A US36244KAB17
Class A-2B US36244KAC99
Class A-2C US36244KAD72
Class A-2D US36244KAE55
Class M-1 US36244KAF21
Class M-2 US36244KAG04
Class M-3 US36244KAH86
Class M-4 US36244KAJ43
Class M-5 US36244KAK16
Class M-6 US36244KAL98
Class M-7 US36244KAM71
Class M-8 US36244KAN54
Class M-9 US36244KAP03
Class B-1 US36244KAV70
Class B-2 US36244KAW53
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2006-HE3
Mortgage Pass-Through Certificates, Series 2006-HE3
[Class A-] [Class M-] [Class B-]
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class.
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Master Servicer, the Servicers, the Securities Administrator, the
Custodians, the Purchaser, the applicable Original Loan Seller or the Trustee or
any other party to the Agreement referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality.
This certifies that [________________] is the registered owner of
the Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions pursuant to a Pooling and Servicing Agreement, dated as of the
Cut-off Date specified above (the "Agreement"), among GS Mortgage Securities
Corp., as depositor (the "Depositor"), Xxxxxx Loan Servicing LP, as a servicer
("Xxxxxx"), Select Portfolio Servicing, Inc., as a servicer ("SPS"), Avelo
Mortgage, L.L.C., as a servicer (together with Xxxxxx and SPS, the "Servicers"),
X.X. Xxxxxx Trust Company, National Association, as a custodian ("X.X. Xxxxxx"),
U.S. Bank National Association ("U.S. Bank"), as a custodian, Deutsche Bank
National Trust Company, as a custodian (together with X.X. Xxxxxx and U.S. Bank,
the "Custodians") and LaSalle Bank National Association, as trustee (the
"Trustee") and Xxxxx Fargo Bank, N.A., as master servicer (the "Master
Servicer") and securities administrator (the "Securities Administrator"). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
***
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
By:______________________________________
Authenticated:
By:_________________________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2006-HE3
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2006-HE3 Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Securities Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Securities Administrator.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the applicable Interest Accrual
Period for the related Distribution Date; provided, however, that for any
Definitive Certificates, the Record Date shall be the last Business Day of the
month immediately preceding the month of such Distribution Date (or if such day
is not a Business Day, on the immediately preceding Business Day).
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Securities Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the offices designated by the
Securities Administrator for such purposes, or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Master Servicer, the Servicers, the
Securities Administrator, the Custodians and the Trustee with the consent of the
Holders of Certificates affected by such amendment evidencing the requisite
Percentage Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Securities Administrator upon surrender of this
Certificate for registration of transfer at the offices designated by the
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders, accompanied by a written instrument of
transfer in form satisfactory to the Securities Administrator duly executed by
the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Depositor and the Securities Administrator and any agent of the
Depositor or the Securities Administrator may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and neither
the Depositor, the Securities Administrator, nor any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 11.01 of the Agreement
will have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
_______________________________________________________________________________.
Dated:
______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number _________, or, if mailed by check, to __________________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT B
FORM OF CLASS P CERTIFICATE
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFEROR
CERTIFICATE IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN AND
EITHER (i) THE SECURITIES ADMINISTRATOR RECEIVES A RULE 144A LETTER IN THE FORM
OF EXHIBIT J TO THE AGREEMENT REFERRED TO HEREIN OR (ii) THE SECURITIES
ADMINISTRATOR RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE
TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A REPRESENTATION LETTER TO
THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE
I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"),
OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO APPLICABLE
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE, OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN
ASSETS OF SUCH A PLAN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY
PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN SUBJECT TO TITLE I OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW
WITHOUT THE REPRESENTATION LETTER SATISFACTORY TO THE SECURITIES ADMINISTRATOR
AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
Certificate No. :
Cut-off Date : May 1, 2006
First Distribution Date : June 27, 2006
Percentage Interest of
this Certificate
("Denomination") : [_____]%
CUSIP : 36244K AU 9
ISIN US36244KAU97
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2006-HE3
Mortgage Pass-Through Certificates, Series 2006-HE3
Class P
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Certificate does not evidence an obligation
of, or an interest in, and is not guaranteed by the Depositor, the Master
Servicer, the Servicers, the Securities Administrator, the Custodians, the
Purchaser, the applicable Original Loan Seller or the Trustee or any other party
to the Agreement referred to below or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that [_____________] is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions pursuant to a Pooling and Servicing Agreement, dated as of the
Cut-off Date specified above (the "Agreement"), among GS Mortgage Securities
Corp., as depositor (the "Depositor"), Xxxxxx Loan Servicing LP, as a servicer
("Xxxxxx"), Select Portfolio Servicing, Inc., as a servicer ("SPS"), Avelo
Mortgage, L.L.C., as a servicer (together with Xxxxxx and SPS, the "Servicers"),
X.X. Xxxxxx Trust Company, National Association, as a custodian ("X.X. Xxxxxx"),
U.S. Bank National Association ("U.S. Bank"), as a custodian, Deutsche Bank
National Trust Company, as a custodian (together with X.X. Xxxxxx and U.S. Bank,
the "Custodians") and LaSalle Bank National Association, as trustee (the
"Trustee") and Xxxxx Fargo Bank, N.A., as master servicer (the "Master
Servicer") and securities administrator (the "Securities Administrator"). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
This Certificate does not have a Pass-Through Rate and will be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
offices designated by the Securities Administrator for such purpose.
No transfer of a Certificate of this Class shall be made unless such
disposition is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "1933 Act"), and any applicable state securities laws
or is made in accordance with the 1933 Act and such laws. In the event of any
such transfer, the Securities Administrator shall require the transferor to
execute a transferor certificate (in substantially the form attached to the
Agreement) and deliver either (i) a Rule 144A Letter, in either case
substantially in the form attached to the Agreement, or (ii) a written Opinion
of Counsel to the Securities Administrator that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the 1933 Act or is being made pursuant to the 1933 Act, which
Opinion of Counsel shall be an expense of the transferor.
No transfer of a Certificate of this Class shall be made unless the
Securities Administrator shall have received a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Securities Administrator, to the effect that such transferee
is not an employee benefit plan subject to Section 406 of ERISA, Section 4975 of
the Code or any materially similar provisions of applicable federal, state or
local law ("Similar Law"), or a person acting on behalf of or investing plan
assets of any such plan, which representation letter shall not be an expense of
the Securities Administrator.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
***
IN WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be duly executed.
Dated:
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
By: _______________________________________
Authenticated:
By ____________________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2006-HE3
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2006-HE3 Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Securities Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Securities Administrator.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the applicable Interest Accrual
Period for the related Distribution Date; provided, however, that for any
Definitive Certificates, the Record Date shall be the last Business Day of the
month immediately preceding the month of such Distribution Date (or if such day
is not a Business Day, on the immediately preceding Business Day).
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Securities Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the offices designated by the
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Master Servicer, the Servicers, the
Securities Administrator, the Custodians and the Trustee with the consent of the
Holders of Certificates affected by such amendment evidencing the requisite
Percentage Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Securities Administrator upon surrender of this
Certificate for registration of transfer at the offices designated by the
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders, accompanied by a written instrument of
transfer in form satisfactory to the Securities Administrator duly executed by
the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Depositor and the Securities Administrator and any agent of the
Depositor or the Securities Administrator may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and neither
the Depositor, the Securities Administrator, nor any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 11.01 of the Agreement
will have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
_______________________________________________________________________________.
Dated:
______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number _________, or, if mailed by check, to __________________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT C
[Reserved]
EXHIBIT D-1
FORM OF CLASS R CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN THREE "REAL ESTATE MORTGAGE INVESTMENT CONDUITS," AS THOSE TERMS
ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFER
AFFIDAVIT IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A REPRESENTATION LETTER TO
THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO MATERIALLY SIMILAR
PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") OR A PERSON
INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN. IN THE EVENT THAT
SUCH REPRESENTATION IS VIOLATED, OR ANY ATTEMPT IS MADE TO TRANSFER TO A PLAN OR
ARRANGEMENT SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO SECTION 4975 OF
THE CODE OR A PLAN SUBJECT TO SIMILAR LAW, OR A PERSON ACTING ON BEHALF OF ANY
SUCH PLAN OR ARRANGEMENT OR USING THE ASSETS OF ANY SUCH PLAN OR ARRANGEMENT,
SUCH ATTEMPTED TRANSFER OR ACQUISITION SHALL BE VOID AND OF NO EFFECT.
Certificate No. : 1
Cut-off Date : May 1, 2006
First Distribution Date : June 27, 2006
Initial Certificate Balance
of this Certificate
("Denomination") : $50
Initial Certificate Balance
of all Certificates of this
Class : $50
CUSIP : 36244K AQ 8
ISIN : US36244KAQ85
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2006-HE3
Mortgage Pass-Through Certificates, Series 2006-HE3
Class R
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Class R Certificate is not entitled to
distributions in respect of interest. This Certificate does not evidence an
obligation of, or an interest in, and is not guaranteed by the Depositor, the
Master Servicer, the Servicers, the Securities Administrator, the Custodians,
the Purchaser, the applicable Original Loan Seller or the Trustee or any other
party to the Agreement referred to below or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that [_____________] is the registered owner of the
Percentage Interest evidenced by this Certificate in certain monthly
distributions pursuant to a Pooling and Servicing Agreement, dated as of the
Cut-off Date specified above (the "Agreement"), among GS Mortgage Securities
Corp., as depositor (the "Depositor"), Xxxxxx Loan Servicing LP, as a servicer
("Xxxxxx"), Select Portfolio Servicing, Inc., as a servicer ("SPS"), Avelo
Mortgage, L.L.C., as a servicer (together with Xxxxxx and SPS, the "Servicers"),
X.X. Xxxxxx Trust Company, National Association, as a custodian ("X.X. Xxxxxx"),
U.S. Bank National Association ("U.S. Bank"), as a custodian, Deutsche Bank
National Trust Company, as a custodian (together with X.X. Xxxxxx and U.S. Bank,
the "Custodians") and LaSalle Bank National Association, as trustee (the
"Trustee") and Xxxxx Fargo Bank, N.A., as master servicer (the "Master
Servicer") and securities administrator (the "Securities Administrator"). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the
Trust Fund will be made only upon presentment and surrender of this Class R
Certificate at the offices designated by the Securities Administrator for such
purposes or such other location specified in the notice to Certificateholders.
No transfer of a Class R Certificate shall be made unless the
Securities Administrator shall have received a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Securities Administrator, to the effect that such transferee
is not an employee benefit plan or arrangement subject to Section 406 of ERISA,
a plan or arrangement subject to Section 4975 of the Code or a plan subject to
Similar Law, or a person acting on behalf of any such plan or arrangement nor
using the assets of any such plan or arrangement to effect such transfer, which
representation letter shall not be an expense of the Securities Administrator,
the Servicers or the Trust Fund. In the event that such representation is
violated, or any attempt is made to transfer to a plan or arrangement subject to
Section 406 of ERISA or a plan subject to Section 4975 of the Code or a plan
subject to Similar Law, or a person acting on behalf of any such plan or
arrangement or using the assets of any such plan or arrangement, such attempted
transfer or acquisition shall be void and of no effect.
Each Holder of this Class R Certificate shall be deemed by the
acceptance or acquisition an Ownership Interest in this Class R Certificate to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in this Class R Certificate are
expressly subject to the following provisions: (i) each Person holding or
acquiring any Ownership Interest in this Class R Certificate shall be a
Permitted Transferee and shall promptly notify the Securities Administrator of
any change or impending change in its status as a Permitted Transferee, (ii) no
Ownership Interest in this Class R Certificate may be registered on the Closing
Date or thereafter transferred, and the Securities Administrator shall not
register the Transfer of this Certificate unless, in addition to the
certificates required to be delivered to the Securities Administrator under
Section 5.02(b) of the Agreement, the Securities Administrator shall have been
furnished with a Transfer Affidavit of the initial owner or the proposed
transferee in the form attached as Exhibit H to the Agreement, (iii) each Person
holding or acquiring any Ownership Interest in this Class R Certificate shall
agree (A) to obtain a Transfer Affidavit from any other Person to whom such
Person attempts to Transfer its Ownership Interest this Class R Certificate, (B)
to obtain a Transfer Affidavit from any Person for whom such Person is acting as
nominee, trustee or agent in connection with any Transfer of this Class R
Certificate, (C) not to cause income with respect to the Class R Certificate to
be attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of such Person or any other U.S.
Person and (D) not to Transfer the Ownership Interest in this Class R
Certificate or to cause the Transfer of the Ownership Interest in this Class R
Certificate to any other Person if it has actual knowledge that such Person is
not a Permitted Transferee and (iv) any attempted or purported Transfer of the
Ownership Interest in this Class R Certificate in violation of the provisions
herein shall be absolutely null and void and shall vest no rights in the
purported Transferee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
IN WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be duly executed.
Dated:
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
By:____________________________________
Authenticated:
By:___________________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2006-HE3
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2006-HE3 Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Securities Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Securities Administrator and the other parties to
the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the month immediately preceding
the month in which such Distribution Date occurs.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Securities Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the offices designated by the
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Master Servicer, the Servicers, the
Securities Administrator, the Custodians and the Trustee with the consent of the
Holders of Certificates affected by such amendment evidencing the requisite
Percentage Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Securities Administrator upon surrender of this
Certificate for registration of transfer at the offices designated by the
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders, accompanied by a written instrument of
transfer in form satisfactory to the Securities Administrator and the
Certificate Registrar duly executed by the holder hereof or such holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class in authorized denominations and evidencing the same aggregate
Percentage Interest in the Trust Fund will be issued to the designated
transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Securities Administrator and the Depositor and any agent of the
Securities Administrator or the Depositor may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and neither
the Depositor, the Securities Administrator, nor any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 11.01 of the Agreement
will have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
_______________________________________________________________________________.
Dated:
______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number _________, or, if mailed by check, to __________________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT D-2
FORM OF CLASS RC CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFER
AFFIDAVIT IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A REPRESENTATION LETTER TO
THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO MATERIALLY SIMILAR
PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") OR A PERSON
INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN. IN THE EVENT THAT
SUCH REPRESENTATION IS VIOLATED, OR ANY ATTEMPT IS MADE TO TRANSFER TO A PLAN OR
ARRANGEMENT SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO SECTION 4975 OF
THE CODE OR A PLAN SUBJECT TO SIMILAR LAW, OR A PERSON ACTING ON BEHALF OF ANY
SUCH PLAN OR ARRANGEMENT OR USING THE ASSETS OF ANY SUCH PLAN OR ARRANGEMENT,
SUCH ATTEMPTED TRANSFER OR ACQUISITION SHALL BE VOID AND OF NO EFFECT.
Certificate No. : 1
Cut-off Date : May 1, 2006
First Distribution Date : June 27, 2006
Initial Certificate Balance
of this Certificate
("Denomination") : $100
Initial Certificate Balances
of all Certificates of this
Class : $100
CUSIP : 36244K AR 6
ISIN : US36244KAR68
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2006-HE3
Mortgage Pass-Through Certificates, Series 2006-HE3
Class RC
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Class RC Certificate is not entitled to
distributions in respect of interest. This Certificate does not evidence an
obligation of, or an interest in, and is not guaranteed by the Depositor, the
Master Servicer, the Servicers, the Securities Administrator, the Custodians,
the Purchaser, the applicable Original Loan Seller or the Trustee or any other
party to the Agreement referred to below or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that [_____________] is the registered owner of the
Percentage Interest evidenced by this Certificate in certain monthly
distributions pursuant to a Pooling and Servicing Agreement, dated as of the
Cut-off Date specified above (the "Agreement"), among GS Mortgage Securities
Corp., as depositor (the "Depositor"), Xxxxxx Loan Servicing LP, as a servicer
("Xxxxxx"), Select Portfolio Servicing, Inc., as a servicer ("SPS"), Avelo
Mortgage, L.L.C., as a servicer (together with Xxxxxx and SPS, the "Servicers"),
X.X. Xxxxxx Trust Company, National Association, as a custodian ("X.X. Xxxxxx"),
U.S. Bank National Association ("U.S. Bank"), as a custodian, Deutsche Bank
National Trust Company, as a custodian (together with X.X. Xxxxxx and U.S. Bank,
the "Custodians") and LaSalle Bank National Association, as trustee (the
"Trustee") and Xxxxx Fargo Bank, N.A., as master servicer (the "Master
Servicer") and securities administrator (the "Securities Administrator"). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the
Trust Fund will be made only upon presentment and surrender of this Class RC
Certificate at the offices designated by the Securities Administrator for such
purposes or such other location specified in the notice to Certificateholders.
No transfer of a Class RC Certificate shall be made unless the
Securities Administrator shall have received a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Securities Administrator, to the effect that such transferee
is not an employee benefit plan or arrangement subject to Section 406 of ERISA,
a plan or arrangement subject to Section 4975 of the Code or a plan subject to
Similar Law, or a person acting on behalf of any such plan or arrangement nor
using the assets of any such plan or arrangement to effect such transfer, which
representation letter shall not be an expense of the Master Servicer, the
Securities Administrator, the Servicers or the Trust Fund. In the event that
such representation is violated, or any attempt is made to transfer to a plan or
arrangement subject to Section 406 of ERISA or a plan subject to Section 4975 of
the Code or a plan subject to Similar Law, or a person acting on behalf of any
such plan or arrangement or using the assets of any such plan or arrangement,
such attempted transfer or acquisition shall be void and of no effect.
Each Holder of this Class RC Certificate shall be deemed by the
acceptance or acquisition an Ownership Interest in this Class RC Certificate to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in this Class RC Certificate are
expressly subject to the following provisions: (i) each Person holding or
acquiring any Ownership Interest in this Class RC Certificate shall be a
Permitted Transferee and shall promptly notify the Securities Administrator of
any change or impending change in its status as a Permitted Transferee, (ii) no
Ownership Interest in this Class RC Certificate may be registered on the Closing
Date or thereafter transferred, and the Securities Administrator shall not
register the Transfer of this Certificate unless, in addition to the
certificates required to be delivered to the Securities Administrator under
Section 5.02(b) of the Agreement, the Securities Administrator shall have been
furnished with a Transfer Affidavit of the initial owner or the proposed
transferee in the form attached as Exhibit H to the Agreement, (iii) each Person
holding or acquiring any Ownership Interest in this Class RC Certificate shall
agree (A) to obtain a Transfer Affidavit from any other Person to whom such
Person attempts to Transfer its Ownership Interest this Class RC Certificate,
(B) to obtain a Transfer Affidavit from any Person for whom such Person is
acting as nominee, trustee or agent in connection with any Transfer of this
Class RC Certificate, (C) not to cause income with respect to the Class RC
Certificate to be attributable to a foreign permanent establishment or fixed
base, within the meaning of an applicable income tax treaty, of such Person or
any other U.S. Person and (D) not to Transfer the Ownership Interest in this
Class RC Certificate or to cause the Transfer of the Ownership Interest in this
Class RC Certificate to any other Person if it has actual knowledge that such
Person is not a Permitted Transferee and (iv) any attempted or purported
Transfer of the Ownership Interest in this Class RC Certificate in violation of
the provisions herein shall be absolutely null and void and shall vest no rights
in the purported Transferee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
IN WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be duly executed.
Dated:
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
By:____________________________________
Authenticated:
By:___________________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2006-HE3
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2006-HE3 Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Securities Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Securities Administrator.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the applicable Interest Accrual
Period for the related Distribution Date; provided, however, that for any
Definitive Certificates, the Record Date shall be the last Business Day of the
month immediately preceding the month of such Distribution Date (or if such day
is not a Business Day, on the immediately preceding Business Day).
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Securities Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the offices designated by the
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Master Servicer, the Servicers, the
Securities Administrator, the Custodians and the Trustee with the consent of the
Holders of Certificates affected by such amendment evidencing the requisite
Percentage Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Securities Administrator upon surrender of this
Certificate for registration of transfer at the offices designated by the
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders, accompanied by a written instrument of
transfer in form satisfactory to the Securities Administrator duly executed by
the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Depositor and the Securities Administrator and any agent of the
Depositor or the Securities Administrator may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and neither
the Depositor, the Securities Administrator, nor any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 11.01 of the Agreement
will have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
_______________________________________________________________________________.
Dated:
______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number _________, or, if mailed by check, to __________________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT D-3
FORM OF CLASS RX CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFER
AFFIDAVIT IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A REPRESENTATION LETTER TO
THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO MATERIALLY SIMILAR
PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") OR A PERSON
INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN. IN THE EVENT THAT
SUCH REPRESENTATION IS VIOLATED, OR ANY ATTEMPT IS MADE TO TRANSFER TO A PLAN OR
ARRANGEMENT SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO SECTION 4975 OF
THE CODE OR A PLAN SUBJECT TO SIMILAR LAW, OR A PERSON ACTING ON BEHALF OF ANY
SUCH PLAN OR ARRANGEMENT OR USING THE ASSETS OF ANY SUCH PLAN OR ARRANGEMENT,
SUCH ATTEMPTED TRANSFER OR ACQUISITION SHALL BE VOID AND OF NO EFFECT.
Certificate No. : 1
Cut-off Date : May 1, 2006
First Distribution Date : June 27, 2006
Initial Certificate Balance
of this Certificate
("Denomination") : $50
Initial Certificate Balances
of all Certificates of this
Class : $50
CUSIP : 36244K AS 4
ISIN : US36244KAS42
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2006-HE3
Mortgage Pass-Through Certificates, Series 2006-HE3
Class RX
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Class RX Certificate is not entitled to
distributions in respect of interest. This Certificate does not evidence an
obligation of, or an interest in, and is not guaranteed by the Depositor, the
Master Servicer, the Servicers, the Securities Administrator, the Custodians,
the Purchaser, the applicable Original Loan Seller or the Trustee or any other
party to the Agreement referred to below or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that [_____________] is the registered owner of the
Percentage Interest evidenced by this Certificate in certain monthly
distributions pursuant to a Pooling and Servicing Agreement, dated as of the
Cut-off Date specified above (the "Agreement"), among GS Mortgage Securities
Corp., as depositor (the "Depositor"), Xxxxxx Loan Servicing LP, as a servicer
("Xxxxxx"), Select Portfolio Servicing, Inc., as a servicer ("SPS"), Avelo
Mortgage, L.L.C., as a servicer (together with Xxxxxx and SPS, the "Servicers"),
X.X. Xxxxxx Trust Company, National Association, as a custodian ("X.X. Xxxxxx"),
U.S. Bank National Association ("U.S. Bank"), as a custodian, Deutsche Bank
National Trust Company, as a custodian (together with X.X. Xxxxxx and U.S. Bank,
the "Custodians") and LaSalle Bank National Association, as trustee (the
"Trustee") and Xxxxx Fargo Bank, N.A., as master servicer (the "Master
Servicer") and securities administrator (the "Securities Administrator"). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the
Trust Fund will be made only upon presentment and surrender of this Class RX
Certificate at the offices designated by the Securities Administrator for such
purposes or such other location specified in the notice to Certificateholders.
No transfer of a Class RX Certificate shall be made unless the
Securities Administrator shall have received a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Securities Administrator, to the effect that such transferee
is not an employee benefit plan or arrangement subject to Section 406 of ERISA,
a plan or arrangement subject to Section 4975 of the Code or a plan subject to
Similar Law, or a person acting on behalf of any such plan or arrangement nor
using the assets of any such plan or arrangement to effect such transfer, which
representation letter shall not be an expense of the Master Servicer, the
Securities Administrator, the Servicers or the Trust Fund. In the event that
such representation is violated, or any attempt is made to transfer to a plan or
arrangement subject to Section 406 of ERISA or a plan subject to Section 4975 of
the Code or a plan subject to Similar Law, or a person acting on behalf of any
such plan or arrangement or using the assets of any such plan or arrangement,
such attempted transfer or acquisition shall be void and of no effect.
Each Holder of this Class RX Certificate shall be deemed by the
acceptance or acquisition an Ownership Interest in this Class RX Certificate to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in this Class RX Certificate are
expressly subject to the following provisions: (i) each Person holding or
acquiring any Ownership Interest in this Class RX Certificate shall be a
Permitted Transferee and shall promptly notify the Securities Administrator of
any change or impending change in its status as a Permitted Transferee, (ii) no
Ownership Interest in this Class RX Certificate may be registered on the Closing
Date or thereafter transferred, and the Securities Administrator shall not
register the Transfer of this Certificate unless, in addition to the
certificates required to be delivered to the Securities Administrator under
Section 5.02(b) of the Agreement, the Securities Administrator shall have been
furnished with a Transfer Affidavit of the initial owner or the proposed
transferee in the form attached as Exhibit H to the Agreement, (iii) each Person
holding or acquiring any Ownership Interest in this Class RX Certificate shall
agree (A) to obtain a Transfer Affidavit from any other Person to whom such
Person attempts to Transfer its Ownership Interest this Class RX Certificate,
(B) to obtain a Transfer Affidavit from any Person for whom such Person is
acting as nominee, trustee or agent in connection with any Transfer of this
Class RX Certificate, (C) not to cause income with respect to the Class RX
Certificate to be attributable to a foreign permanent establishment or fixed
base, within the meaning of an applicable income tax treaty, of such Person or
any other U.S. Person and (D) not to Transfer the Ownership Interest in this
Class RX Certificate or to cause the Transfer of the Ownership Interest in this
Class RX Certificate to any other Person if it has actual knowledge that such
Person is not a Permitted Transferee and (iv) any attempted or purported
Transfer of the Ownership Interest in this Class RX Certificate in violation of
the provisions herein shall be absolutely null and void and shall vest no rights
in the purported Transferee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
IN WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be duly executed.
Dated:
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
By:____________________________________
Authenticated:
By:___________________________________________________________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2006-HE3
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2006-HE3 Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Securities Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Securities Administrator.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the applicable Interest Accrual
Period for the related Distribution Date; provided, however, that for any
Definitive Certificates, the Record Date shall be the last Business Day of the
month immediately preceding the month of such Distribution Date (or if such day
is not a Business Day, on the immediately preceding Business Day).
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Securities Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the offices designated by the
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Master Servicer, the Servicers, the
Securities Administrator, the Custodians and the Trustee with the consent of the
Holders of Certificates affected by such amendment evidencing the requisite
Percentage Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Securities Administrator upon surrender of this
Certificate for registration of transfer at the offices designated by the
Securities Administrator for such purposes, accompanied by a written instrument
of transfer in form satisfactory to the Securities Administrator duly executed
by the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Depositor and the Securities Administrator and any agent of the
Depositor or the Securities Administrator may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and neither
the Depositor, the Securities Administrator, nor any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 11.01 of the Agreement
will have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
_______________________________________________________________________________.
Dated:
______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number _________, or, if mailed by check, to __________________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT E
FORM OF CLASS X CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS TWO
"REGULAR INTERESTS" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), AND CERTAIN OTHER ASSETS.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFEROR
CERTIFICATE IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN AND
EITHER (i) THE SECURITIES ADMINISTRATOR RECEIVES A RULE 144A LETTER IN THE FORM
OF EXHIBIT J TO THE AGREEMENT REFERRED TO HEREIN OR (ii) THE SECURITIES
ADMINISTRATOR RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE
TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR EITHER A REPRESENTATION
LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN
SUBJECT TO APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR A PERSON INVESTING
ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN, OR, IF THE TRANSFEREE IS AN
INSURANCE COMPANY, A REPRESENTATION LETTER THAT IT IS USING THE ASSETS OF ITS
GENERAL ACCOUNT AND THE PURCHASE AND HOLDING OF THIS CERTIFICATE ARE COVERED
UNDER SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR AN
OPINION OF COUNSEL SATISFACTORY TO THE SECURITIES ADMINISTRATOR, TO THE EFFECT
THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE WILL NOT CONSTITUTE OR RESULT
IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE
CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE SECURITIES ADMINISTRATOR, THE
DEPOSITOR, THE MASTER SERVICER OR THE SERVICERS TO ANY OBLIGATION IN ADDITION TO
THOSE EXPRESSLY UNDERTAKEN IN THE AGREEMENT OR TO ANY LIABILITY. NOTWITHSTANDING
ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE
TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF ERISA, SECTION
4975 OF THE CODE OR SIMILAR LAW WITHOUT THE REPRESENTATION LETTER OR OPINION OF
COUNSEL SATISFACTORY TO THE SECURITIES ADMINISTRATOR AS DESCRIBED ABOVE SHALL BE
VOID AND OF NO EFFECT.
Certificate No. : 1
Cut-off Date : May 1, 2006
First Distribution Date : June 27, 2006
Percentage Interest of this
Certificate ("Denomination") :
CUSIP : 36244K AT 2
ISIN: : US36244KAT25
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2006-HE3
Mortgage Pass-Through Certificates, Series 2006-HE3
Class X
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Class X Certificate has no Certificate Balance
and is not entitled to distributions in respect of principal or interest. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Master Servicer, the Servicers, the Securities
Administrator, the Custodians, the Purchaser, the applicable Original Loan
Seller or the Trustee referred to below or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that [_______________________] is the registered
owner of the Percentage Interest evidenced by this Certificate in certain
monthly distributions pursuant to a Pooling and Servicing Agreement, dated as of
the Cut-off Date specified above (the "Agreement"), among GS Mortgage Securities
Corp., as depositor (the "Depositor"), Xxxxxx Loan Servicing LP, as a servicer
("Xxxxxx"), Select Portfolio Servicing, Inc., as a servicer ("SPS"), Avelo
Mortgage, L.L.C., as a servicer (together with Xxxxxx and SPS, the "Servicers"),
X.X. Xxxxxx Trust Company, National Association, as a custodian ("X.X. Xxxxxx"),
U.S. Bank National Association ("U.S. Bank"), as a custodian, Deutsche Bank
National Trust Company, as a custodian (together with X.X. Xxxxxx and U.S. Bank,
the "Custodians") and LaSalle Bank National Association, as trustee (the
"Trustee") and Xxxxx Fargo Bank, N.A., as master servicer (the "Master
Servicer") and securities administrator (the "Securities Administrator"). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the
Trust Fund will be made only upon presentment and surrender of this Class X
Certificate at the offices designated by the Securities Administrator for such
purposes or such other location specified in the notice to Certificateholders.
No transfer of a Class X Certificate shall be made unless the
Securities Administrator shall have received either (i) a representation letter
from the transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Securities Administrator, to the effect that such transferee
is not an employee benefit plan or arrangement subject to Section 406 of ERISA,
a plan or arrangement subject to Section 4975 of the Code or a plan subject to
Similar Law, or a person acting on behalf of any such plan or arrangement nor
using the assets of any such plan or arrangement to effect such transfer, which
representation letter shall not be an expense of the Trustee, the Master
Servicer, the Securities Administrator, the Depositor, the Servicers or the
Trust Fund, or (ii) if the Class X Certificate has been the subject of an ERISA
Qualifying Underwriting and the transferee is an insurance company, a
representation letter that it is purchasing such Certificates with the assets of
its general account and that the purchase and holding of such Certificates are
covered under Sections I and III of PTCE 95-60, or (iii) in the case of a Class
X Certificate presented for registration in the name of an employee benefit plan
subject to ERISA, or a plan or arrangement subject to Section 4975 of the Code
(or comparable provisions of any subsequent enactments) or a plan subject to
Similar Law, or a trustee of any such plan or any other person acting on behalf
of any such plan or arrangement or using such plan's or arrangement's assets, an
Opinion of Counsel satisfactory to the Securities Administrator, which Opinion
of Counsel shall not be an expense of the Securities Administrator, the
Depositor, the Servicers or the Trust Fund, addressed to the Securities
Administrator, to the effect that the purchase or holding of such Certificate
will not constitute or result in a non-exempt prohibited transaction within the
meaning of ERISA, Section 4975 of the Code or any Similar Law and will not
subject the Securities Administrator, the Depositor or the Servicers to any
obligation in addition to those expressly undertaken in the Agreement or to any
liability. In the event that such representation is violated, or any attempt is
made to transfer to a plan or arrangement subject to Section 406 of ERISA or a
plan subject to Section 4975 of the Code or a plan subject to Similar Law, or a
person acting on behalf of any such plan or arrangement or using the assets of
any such plan or arrangement, such attempted transfer or acquisition shall be
void and of no effect.
Each Holder of this Class X Certificate shall be deemed by the
acceptance or acquisition an Ownership Interest in this Class X Certificate to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in this Class X Certificate are
expressly subject to the following provisions: (i) each Person holding or
acquiring any Ownership Interest in this Class X Certificate shall be a
Permitted Transferee and shall promptly notify the Securities Administrator of
any change or impending change in its status as a Permitted Transferee, (ii) no
Ownership Interest in this Class X Certificate may be registered on the Closing
Date or thereafter transferred, and the Securities Administrator shall not
register the Transfer of this Certificate unless, in addition to the
certificates required to be delivered to the Securities Administrator under
Section 5.02(b) of the Agreement, the Securities Administrator shall have been
furnished with a Transfer Affidavit of the initial owner or the proposed
transferee in the form attached as Exhibit I to the Agreement, (iii) each Person
holding or acquiring any Ownership Interest in this Class X Certificate shall
agree (A) to obtain a Transfer Affidavit from any other Person to whom such
Person attempts to Transfer its Ownership Interest this Class X Certificate, (B)
to obtain a Transfer Affidavit from any Person for whom such Person is acting as
nominee, trustee or agent in connection with any Transfer of this Class X
Certificate, (C) not to cause income with respect to the Class X Certificate to
be attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of such Person or any other U.S.
Person and (D) not to Transfer the Ownership Interest in this Class X
Certificate or to cause the Transfer of the Ownership Interest in this Class X
Certificate to any other Person if it has actual knowledge that such Person is
not a Permitted Transferee and (iv) any attempted or purported Transfer of the
Ownership Interest in this Class X Certificate in violation of the provisions
herein shall be absolutely null and void and shall vest no rights in the
purported Transferee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
By:____________________________________
Authenticated:
By:___________________________________________________________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2006-HE3
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2006-HE3 Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Securities Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Securities Administrator.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the applicable Interest Accrual
Period for the related Distribution Date; provided, however, that for any
Definitive Certificates, the Record Date shall be the last Business Day of the
month immediately preceding the month of such Distribution Date (or if such day
is not a Business Day, on the immediately preceding Business Day).
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Securities Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the offices designated by the
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Master Servicer, the Servicers, the
Securities Administrator, the Custodians and the Trustee with the consent of the
Holders of Certificates affected by such amendment evidencing the requisite
Percentage Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Securities Administrator upon surrender of this
Certificate for registration of transfer at the offices designated by the
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders, accompanied by a written instrument of
transfer in form satisfactory to the Securities Administrator duly executed by
the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Depositor, the Servicers and the Securities Administrator and
any agent of the Depositor or the Securities Administrator may treat the Person
in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Securities Administrator, nor any such
agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 11.01 of the Agreement
will have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
_______________________________________________________________________________.
Dated:
______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number _________, or, if mailed by check, to __________________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT F
FORM OF INITIAL CERTIFICATION OF CUSTODIAN
[date]
[Depositor]
[Servicer]
[Trustee]
[Securities Administrator]
Re: Pooling and Servicing Agreement, dated as of May 1, 2006,
among GS Mortgage Securities Corp., as Depositor, Xxxxxx Loan
Servicing LP, as a Servicer, Select Portfolio Servicing, Inc.,
as a Servicer, Avelo Mortgage, L.L.C., as a Servicer, X.X.
Xxxxxx Trust Company, National Association, as a Custodian,
U.S. Bank National Association, as a Custodian, Deutsche Bank
National Trust Company, as a Custodian, LaSalle Bank National
Association, as Trustee, and Xxxxx Fargo Bank, N.A., as
Securities Administrator and Master Servicer, GSAMP Trust
2006-HE3, Series 2006-HE3
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned,
each as a Custodian, for each Mortgage Loan listed in the Mortgage Loan Schedule
(other than any Mortgage Loan listed in the attached schedule of exceptions),
certifies that it has received:
(i) the original Mortgage Note, endorsed as provided in the
following form: "Pay to the order of ________, without recourse"; and
(ii) except with respect to each MERS Designated Mortgage Loan, an
executed Assignment of Mortgage (which may be included in a blanket
assignment or assignments).
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
Mortgage Loan.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Custodian makes no representations as to:
(i) the validity, legality, sufficiency, enforceability, recordability or
genuineness of any of the documents contained in each Mortgage File of any of
the Mortgage Loans identified on the Mortgage Loan Schedule, or (ii) the
collectibility, insurability, effectiveness or suitability of any such Mortgage
Loan or the perfection or priority of any Mortgage. Notwithstanding anything
herein to the contrary, the Custodian has made no determination and makes no
representations as to whether (i) any endorsement is sufficient to transfer all
right, title and interest of the party so endorsing, as Certificateholder or
assignee thereof, in and to that Mortgage Note or (ii) any assignment is in
recordable form or sufficient to effect the assignment of and transfer to the
assignee thereof, under the Mortgage to which the assignment relates.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
X.X. XXXXXX TRUST COMPANY, NATIONAL
ASSOCIATION, as Custodian
By:____________________________________
Name:__________________________________
Title:_________________________________
U.S. BANK NATIONAL ASSOCIATION, as
Custodian
By:____________________________________
Name:__________________________________
Title:_________________________________
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Custodian
By:____________________________________
Name:__________________________________
Title:_________________________________
EXHIBIT G
FORM OF DOCUMENT CERTIFICATION
AND EXCEPTION REPORT OF CUSTODIAN
[date]
[Depositor]
[Servicer]
[Trustee]
[Securities Administrator]
_________________________
_________________________
Re: Pooling and Servicing Agreement, dated as of May 1, 2006,
among GS Mortgage Securities Corp., as Depositor, Xxxxxx Loan
Servicing LP, as a Servicer, Select Portfolio Servicing, Inc.,
as a Servicer, Avelo Mortgage, L.L.C., as a Servicer, X.X.
Xxxxxx Trust Company, National Association, as a Custodian,
U.S. Bank National Association, as a Custodian, Deutsche Bank
National Trust Company, as a Custodian, LaSalle Bank National
Association, as Trustee, and Xxxxx Fargo Bank, N.A., as
Securities Administrator and Master Servicer, GSAMP Trust
2006-HE3, Series 2006-HE3
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
a Custodian, hereby certifies that as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan paid in full or listed on
the attached Document Exception Report) it has received:
(i) The original Mortgage Note, endorsed in the form provided in
Section 2.01 of the Pooling and Servicing Agreement, with all intervening
endorsements showing a complete chain of endorsement from the originator
to the last endorsee.
(ii) The original recorded Mortgage or a certified copy thereof.
(iii) Except with respect to each MERS Designated Mortgage Loan, an
executed Assignment of Mortgage endorsed in blank in the form provided in
Section 2.01 of the Pooling and Servicing Agreement; or a copy of the
Assignment of Mortgage (excluding information to be provided by the
recording office).
(iv) Except with respect to each MERS Designated Mortgage Loan, the
original or duplicate original recorded assignment or assignments of the
Mortgage endorsed in blank showing a complete chain of assignment from the
originator to the last endorsee.
(v) The original or duplicate original or certified copy of lender's
title policy and all riders thereto or, any one of an original title
binder, an original preliminary title report or an original title
commitment, or a copy thereof certified by the title company.
Based on its review and examination and only as to the foregoing
documents, (a) such documents appear regular on their face and related to such
Mortgage Loan, and (b) the information set forth in items (1), (2) and (13) of
the Mortgage Loan Schedule and the Data Tape Information accurately reflects
information set forth in the Custodial File.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review of the Custodial File
specifically required in the Pooling and Servicing Agreement. The Custodian
makes no representations as to: (i) the validity, legality, sufficiency,
enforceability, recordability or genuineness of any of the documents contained
in each Mortgage File of any of the Mortgage Loans identified on the Mortgage
Loan Schedule or (ii) the collectibility, insurability, effectiveness or
suitability of any such Mortgage Loan or the perfection or priority of any
Mortgage. Notwithstanding anything herein to the contrary, the Custodian has
made no determination and makes no representations as to whether (i) any
endorsement is sufficient to transfer all right, title and interest of the party
so endorsing, as Noteholder or assignee thereof, in and to that Mortgage Note or
(ii) any assignment is in recordable form or sufficient to effect the assignment
of and transfer to the assignee thereof, under the Mortgage to which the
assignment relates.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
X.X. XXXXXX TRUST COMPANY, NATIONAL
ASSOCIATION, as Custodian
By:____________________________________
Name:__________________________________
Title:_________________________________
U.S. BANK NATIONAL ASSOCIATION, as
Custodian
By:____________________________________
Name:__________________________________
Title:_________________________________
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Custodian
By:____________________________________
Name:__________________________________
Title:_________________________________
EXHIBIT H
FORM OF RESIDUAL TRANSFER AFFIDAVIT
GSAMP Trust 2006-HE3,
Mortgage Pass-Through Certificates
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as
follows:
1. The undersigned is an officer of ___________________, the
proposed Transferee of an Ownership Interest in a Residual Certificate (the
"Certificate") issued pursuant to the Pooling and Servicing Agreement dated as
of May 1, 2006 (the "Agreement"), among GS Mortgage Securities Corp., as
depositor (the "Depositor"), Xxxxxx Loan Servicing LP, as a servicer ("Xxxxxx"),
Select Portfolio Servicing, Inc., as a servicer ("SPS"), Avelo Mortgage, L.L.C.,
as a servicer (together with Xxxxxx and SPS, the "Servicers"), X.X. Xxxxxx Trust
Company, National Association, as a custodian ("X.X. Xxxxxx"), U.S. Bank
National Association ("U.S. Bank"), as a custodian, Deutsche Bank National Trust
Company, as a custodian (together with X.X. Xxxxxx and U.S. Bank, the
"Custodians") and LaSalle Bank National Association, as trustee (the "Trustee")
and Xxxxx Fargo Bank, N.A., as master servicer and securities administrator (the
"Securities Administrator"). Capitalized terms used, but not defined herein or
in Exhibit 1 hereto, shall have the meanings ascribed to such terms in the
Agreement. The Transferee has authorized the undersigned to make this affidavit
on behalf of the Transferee for the benefit of the Depositor and the Securities
Administrator.
2. The Transferee is, as of the date hereof, and will be, as of the
date of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate for its own account. The Transferee has no
knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a
tax will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the subsequent Transferee furnished to such Person an affidavit that
such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax
will be imposed on a "pass-through entity" holding the Certificate if at any
time during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is a Permitted Transferee and the pass-through
entity does not have actual knowledge that such affidavit is false. (For this
purpose, a "pass-through entity" includes a regulated investment company, a real
estate investment trust or common trust fund, a partnership, trust or estate,
and certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for another
Person.)
5. The Transferee has reviewed the provisions of Section 5.02(c) of
the Agreement and understands the legal consequences of the acquisition of an
Ownership Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding voiding the
Transfer and mandatory sales. The Transferee expressly agrees to be bound by and
to abide by the provisions of Section 5.02(c) of the Agreement and the
restrictions noted on the face of the Certificate. The Transferee understands
and agrees that any breach of any of the representations included herein shall
render the Transfer to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Securities Administrator a certificate
substantially in the form set forth as Exhibit I to the Agreement (a "Transferor
Certificate") to the effect that such Transferee has no actual knowledge that
the Person to which the Transfer is to be made is not a Permitted Transferee.
7. The Transferee has historically paid its debts as they have come
due, intends to pay its debts as they come due in the future, and understands
that the taxes payable with respect to the Certificate may exceed the cash flow
with respect thereto in some or all periods and intends to pay such taxes as
they become due. The Transferee does not have the intention to impede the
assessment or collection of any tax legally required to be paid with respect to
the Certificate.
8. The Transferee's taxpayer identification number is __________.
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30) and the Agreement.
10. The Transferee is aware that the Certificate may be a
"noneconomic residual interest" within the meaning of proposed Treasury
regulations promulgated pursuant to the Code and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with respect
to the income on such residual interest, unless no significant purpose of the
transfer was to impede the assessment or collection of tax.
11. The Transferee will not cause income from the Certificate to be
attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of the Transferee or any other U.S.
Person.
12. Check one of the following:
[ ] The present value of the anticipated tax liabilities associated
with holding the Certificate, as applicable, does not exceed the sum of:
(i) the present value of any consideration given to the Transferee
to acquire such Certificate;
(ii) the present value of the expected future distributions on such
Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such Certificate as the related REMIC generates
losses.
For purposes of this calculation, (i) the Transferee is assumed to
pay tax at the highest rate currently specified in Section 11(b) of the Code
(but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of the
highest rate specified in Section 11(b) of the Code if the Transferee has been
subject to the alternative minimum tax under Section 55 of the Code in the
preceding two years and will compute its taxable income in the current taxable
year using the alternative minimum tax rate) and (ii) present values are
computed using a discount rate equal to the short-term federal rate prescribed
by Section 1274(d) of the Code for the month of the transfer and the compounding
period used by the Transferee.
[ ] The transfer of the Certificate complies with U.S. Treasury
Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in
U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), as to
which income from the Certificate will only be taxed in the
United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the
transfer, the Transferee had gross assets for financial
reporting purposes (excluding any obligation of a person
related to the Transferee within the meaning of U.S. Treasury
Regulations Section 1.860E-1(c)(6)(ii)) in excess of $100
million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Certificate only to another
"eligible corporation," as defined in U.S. Treasury
Regulations Section 1.860E-1(c)(6)(i), in a transaction that
satisfies the requirements of Sections 1.860E-1(c)(4)(i), (ii)
and (iii) and Section 1.860E-1(c)(5) of the U.S. Treasury
Regulations; and
(iv) the Transferee determined the consideration paid to it to
acquire the Certificate based on reasonable market assumptions
(including, but not limited to, borrowing and investment
rates, prepayment and loss assumptions, expense and
reinvestment assumptions, tax rates and other factors specific
to the Transferee) that it has determined in good faith.
[ ] None of the above.
13. The Transferee is not an employee benefit plan that is subject
to Title I of ERISA or a plan that is subject to Section 4975 of the Code or a
plan subject to any federal, state or local law that is substantially similar to
Title I of ERISA or Section 4975 of the Code, and the Transferee is not acting
on behalf of or investing plan assets of such a plan.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
duly authorized officer and its corporate seal to be hereunto affixed, duly
attested, this __ day of ________, 20__.
_________________________________________
Print Name of Transferee
By:______________________________________
Name:
Title:
[Corporate Seal]
ATTEST:
____________________________________
[Assistant] Secretary
Personally appeared before me the above-named __________, known or
proved to me to be the same person who executed the foregoing instrument and to
be the ___________ of the Transferee, and acknowledged that he executed the same
as his free act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this __ day of ________, 20__.
_________________________________________
NOTARY PUBLIC
My Commission expires the __ day
of _________, 20__
EXHIBIT I
FORM OF TRANSFEROR CERTIFICATE
__________, 20__
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Xxxxx Fargo Bank, N.A.
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479
Attention: Corporate Trust Services GSAMP 2006-HE3
Re: GSAMP Trust 2006-HE3 Mortgage Pass-Through Certificates, Series
2006-HE3, Class [ ]
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being disposed
by us in a transaction that is exempt from the registration requirements of the
Act, (b) we have not offered or sold any Certificates to, or solicited offers to
buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, in a manner that would be deemed, or taken
any other action which would result in, a violation of Section 5 of the Act and
(c) to the extent we are disposing of a Residual Certificate, (A) we have no
knowledge the Transferee is not a Permitted Transferee and (B) after conducting
a reasonable investigation of the financial condition of the Transferee, we have
no knowledge and no reason to believe that the Transferee will not pay all taxes
with respect to the Residual Certificates as they become due and (C) we have no
reason to believe that the statements made in paragraphs 7, 10 and 11 of the
Transferee's Residual Transfer Affidavit are false.
Very truly yours,
__________________________________
Print Name of Transferor
By:_______________________________
Authorized Officer
EXHIBIT J
FORM OF RULE 144A LETTER
____________, 20__
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Xxxxx Fargo Bank, N.A.
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479
Attention: Corporate Trust Services GSAMP 2006-HE3
RE GSAMP Trust 2006-HE3 Mortgage Pass-Through Certificates, Class [ ]
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we have
such knowledge and experience in financial and business matters that we are
capable of evaluating the merits and risks of investments in the Certificates,
(c) we have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) either we are purchasing a Class B-1 or Class B-2
Certificate, or we are not an employee benefit plan that is subject to Title I
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or
a plan or arrangement that is subject to Section 4975 of the Internal Revenue
Code of 1986, as amended (the "Code"), or a plan subject to any federal, state
or local law materially similar to the foregoing provisions of ERISA or the
Code, nor are we acting on behalf of any such plan or arrangement nor using the
assets of any such plan or arrangement to effect such acquisition, or, with
respect to a Class X Certificate, the purchaser is an insurance company that is
purchasing this certificate with funds contained in an "insurance company
general account" (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 ("PTCE 95-60")) and the purchase and holding
of such Certificates are covered under Sections I and III of PTCE 95-60, (e) we
have not, nor has anyone acting on our behalf offered, transferred, pledged,
sold or otherwise disposed of the Certificates, any interest in the Certificates
or any other similar security to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Certificates, any interest in the
Certificates or any other similar security from, or otherwise approached or
negotiated with respect to the Certificates, any interest in the Certificates or
any other similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken
any other action, that would constitute a distribution of the Certificates under
the Securities Act or that would render the disposition of the Certificates a
violation of Section 5 of the Securities Act or require registration pursuant
thereto, nor will act, nor has authorized or will authorize any person to act,
in such manner with respect to the Certificates, and (f) we are a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act and have completed either of the forms of certification to that effect
attached hereto as Annex 1 or Annex 2. We are aware that the sale to us is being
made in reliance on Rule 144A. We are acquiring the Certificates for our own
account or for resale pursuant to Rule 144A and further, we understand that such
Certificates may be resold, pledged or transferred only (i) to a person
reasonably believed to be a qualified institutional buyer that purchases for its
own account or for the account of a qualified institutional buyer to whom notice
is given that the resale, pledge or transfer is being made in reliance on Rule
144A, or (ii) pursuant to another exemption from registration under the
Securities Act.
ANNEX 1 TO EXHIBIT J
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A"), because (i) the Buyer owned
and/or invested on a discretionary basis $ (1) in securities (except for the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule 144A and (ii)
the Buyer satisfies the criteria in the category marked below.
____ Corporation, etc. The Buyer is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or
charitable organization described in Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended.
____ Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the
District of Columbia, the business of which is substantially
confined to banking and is supervised by the State or
territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited
net worth of at least $25,000,000 as demonstrated in its
latest annual financial statements, a copy of which is
attached hereto.
____ Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a State or Federal authority having
supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto.
____ Broker-dealer. The Buyer is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
----------------
(1) Buyer must own and/or invest on a discretionary basis at least $100,000,000
in securities unless Buyer is a dealer, and, in that case, Buyer must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
____ Insurance Company. The Buyer is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State,
territory or the District of Columbia.
____ State or Local Plan. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
____ ERISA Plan. The Buyer is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security
Act of 1974.
____ Investment Advisor. The Buyer is an investment advisor
registered under the Investment Advisors Act of 1940.
____ Small Business Investment Company. Buyer is a small business
investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958.
____ Business Development Company. Buyer is a business development
company as defined in Section 202(a)(22) of the Investment
Advisors Act of 1940.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer is
a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned but
subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used the
cost of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the Buyer
will notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice is given,
the Buyer's purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan is provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
_________________________________________
Print Name of Transferee
By:______________________________________
Name:
Title:
Date:____________________________________
ANNEX 2 TO EXHIBIT J
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A"), because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, as
amended and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, the cost of such securities
was used, except (i) where the Buyer or the Buyer's Family of Investment
Companies reports its securities holdings in its financial statements on the
basis of their market value, and (ii) no current information with respect to the
cost of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market.
____ The Buyer owned $ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's
most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
____ The Buyer is part of a Family of Investment Companies which
owned in the aggregate $ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or guaranteed by
the U.S. or any instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements,
(vi) securities owned but subject to a repurchase agreement and (vii) currency,
interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, the undersigned
will notify the parties listed in the Rule 144A Transferee Certificate to which
this certification relates of any changes in the information and conclusions
herein. Until such notice is given, the Buyer's purchase of the Certificates
will constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
_________________________________________
Print Name of Transferee
By:______________________________________
Name:
Title:
IF AN ADVISER:
_________________________________________
Print Name of Buyer
Date:____________________________________
EXHIBIT K
FORM OF INVESTMENT LETTER (NON-RULE 144A)
---------------------
Date
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Xxxxx Fargo Bank, N.A.
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479
Attention: Corporate Trust Services GSAMP 2006-HE3
Re: GSAMP Trust 2006-HE3 Mortgage Pass-Through Certificates,
Series 2006-HE3, Class [__]
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we are an
institutional "accredited investor" (within the meaning of Rule 501(a)(1), (2),
(3) or (7) of Regulation D under the Act, and have such knowledge and experience
in financial and business matters that we are capable of evaluating the merits
and risks of investments in the Certificates, (c) we have had the opportunity to
ask questions of and receive answers from the Depositor concerning the purchase
of the Certificates and all matters relating thereto or any additional
information deemed necessary to our decision to purchase the Certificates, (d)
either we are purchasing a Class B-1 or Class B-2 Certificate, or we are not an
employee benefit plan that is subject to Title I of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or a plan or arrangement that
is subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the
"Code"), or a plan subject to any federal, state or local law materially similar
to the foregoing provisions of ERISA or the Code, nor are we acting on behalf of
any such plan or arrangement nor using the assets of any such plan or
arrangement to effect such acquisition, or, with respect to a Class X
Certificate, the purchaser is an insurance company that is purchasing this
certificate with funds contained in an "insurance company general account" (as
such term is defined in Section V(e) of Prohibited Transaction Class Exemption
95-60 ("PTCE 95-60")) and the purchase and holding of such Certificates are
covered under Sections I and III of PTCE 95-60, (e) we are acquiring the
Certificates for investment for our own account and not with a view to any
distribution of such Certificates (but without prejudice to our right at all
times to sell or otherwise dispose of the Certificates in accordance with clause
(g) below), (f) we have not offered or sold any Certificates to, or solicited
offers to buy any Certificates from, any person, or otherwise approached or
negotiated with any person with respect thereto, or taken any other action which
would result in a violation of Section 5 of the Act, and (g) we will not sell,
transfer or otherwise dispose of any Certificates unless (1) such sale, transfer
or other disposition is made pursuant to an effective registration statement
under the Act or is exempt from such registration requirements, and if
requested, we will at our expense provide an opinion of counsel satisfactory to
the addressees of this Certificate that such sale, transfer or other disposition
may be made pursuant to an exemption from the Act, (2) the purchaser or
transferee of such Certificate has executed and delivered to you a certificate
to substantially the same effect as this certificate, and (3) the purchaser or
transferee has otherwise complied with any conditions for transfer set forth in
the Pooling and Servicing Agreement.
_________________________________________
Print Name of Transferee
By:____________________________________
Name:
Title:
Date:
EXHIBIT L
FORM OF REQUEST FOR RELEASE
(for Custodian)
To: [Address]
Re:
In connection with the administration of the Mortgage Loans held by
you as a Custodian on behalf of the Certificateholders we request the release,
and acknowledge receipt, of the (Custodial File/[specify documents]) for the
Mortgage Loan described below, for the reason indicated.
Mortgagor's Name, Address & Zip Code:
Mortgage Loan Number:
Reason for Requesting Documents (check one)
____1. Mortgage Loan Paid in Full. (The Company hereby certifies that all
amounts received in connection therewith have been credited to the
Collection Account as provided in the Pooling and Servicing
Agreement.)
____2. Mortgage Loan Repurchase Pursuant to Section 2.03, 2.07 or 3.28 of
the Pooling and Servicing Agreement. (The Company hereby certifies
that the repurchase price has been credited to the Collection
Account as provided in the Pooling and Servicing Agreement.)
____3. Mortgage Loan Liquidated by _________________. (The Company hereby
certifies that all proceeds of foreclosure, insurance, condemnation
or other liquidation have been finally received and credited to the
Collection Account pursuant to the Pooling and Servicing Agreement.)
____4. Mortgage Loan in Foreclosure.
____5. Other (explain).__________________________________________________
If box 1, 2 or 3 above is checked, and if all or part of the Custodial File was
previously released to us, please release to us our previous request and receipt
on file with you, as well as any additional documents in your possession
relating to the specified Mortgage Loan. If Box 4 or 5 above is checked, upon
our return of all of the above documents to you as a Custodian, please
acknowledge your receipt by signing in the space indicated below, and returning
this form, if requested.
XXXXXX LOAN SERVICING LP
By:____________________________________
(authorized signer)
SELECT PORTFOLIO SERVICING, INC.
By:____________________________________
(authorized signer)
AVELO MORTGAGE, L.L.C.
By:____________________________________
(authorized signer)
Issuer:________________________________
Address:_______________________________
Date:__________________________________
Acknowledged receipt by:
X.X. Xxxxxx Trust Company, National Association,
as Custodian
By:____________________________________________
Name:
Title:
Date:
Acknowledged receipt by:
U.S. Bank National Association,
as Custodian
By:____________________________________________
Name:
Title:
Date:
Acknowledged receipt by:
Deutsche Bank National Trust Company,
as Custodian
By:____________________________________________
Name:
Title:
Date:
EXHIBIT M
CONTENTS OF EACH MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall include
each of the following items, which shall be available for inspection by the
Sponsor and which shall be retained by the Servicer or delivered to and retained
by the applicable Custodian:
(i) the original Mortgage Note (with all applicable riders) bearing
all intervening endorsements endorsed "Pay to the order of _____________,
without recourse" and signed in the name of the last endorsee. To the
extent that there is no room on the face of any Mortgage Note for an
endorsement, the endorsement may be contained on an allonge, unless the
state law does not so allow the applicable Custodian is advised by the
Depositor that state law does not so allow;
(ii) the original of any guarantee executed in connection with the
mortgage note, if provided;
(iii) the original Mortgage (with all applicable riders) with
evidence of recording thereon. If in connection with any Mortgage Loan,
the applicable Original Loan Seller, cannot deliver or cause to be
delivered the original Mortgage with evidence of recording thereon on or
prior to the Closing Date because of a delay caused by the public
recording office where such Mortgage has been delivered for recordation or
because such Mortgage has been lost or because such public recording
office retains the original recorded Mortgage, the applicable Original
Loan Seller, (to the extent that it has not previously delivered the same
to the Sponsor or the applicable Custodian) shall deliver or cause to be
delivered to the applicable Custodian, a photocopy of such Mortgage,
together with (i) in the case of a delay caused by the public recording
office, an officer's certificate of (or certified by) the applicable
Original Loan Seller (or certified by the title company, escrow agent, or
closing attorney) stating that such Mortgage has been dispatched to the
appropriate public recording office for recordation and that the original
recorded Mortgage or a copy of such Mortgage certified by such public
recording office to be a true and complete copy of the original recorded
Mortgage will be promptly delivered to the applicable Custodian upon
receipt thereof by the applicable Original Loan Seller; or (ii) in the
case of a Mortgage where a public recording office retains the original
recorded Mortgage or in the case where a Mortgage is lost after
recordation in a public recording office, a copy of such Mortgage
certified by such public recording office to be a true and complete copy
of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or
extension agreements, (if provided), with evidence of recording thereon or
a certified true copy of such agreement submitted for recording;
(v) except with respect to each MERS Designated Mortgage Loan, the
original Assignment of Mortgage for each Mortgage Loan endorsed in blank
and in recordable form;
(vi) the originals of all intervening Assignments of Mortgage (if
any) evidencing a complete chain of assignment from the applicable
originator (or MERS with respect to each MERS Designated Mortgage Loan) to
the last endorsee with evidence of recording thereon, or if any such
intervening assignment has not been returned from the applicable recording
office or has been lost or if such public recording office retains the
original recorded Assignments of Mortgage, the applicable Original Loan
Seller (to the extent that it has not previously delivered the same to the
Sponsor or the Trustee) shall deliver or cause to be delivered to the
applicable Custodian, a photocopy of such intervening assignment, together
with (A) in the case of a delay caused by the public recording office, an
officer's certificate of (or certified by) the applicable Original Loan
Seller (or certified by the title company, escrow agent, or closing
attorney) stating that such intervening Assignment of Mortgage has been
dispatched to the appropriate public recording office for recordation and
that such original recorded intervening Assignment of Mortgage or a copy
of such intervening Assignment of Mortgage certified by the appropriate
public recording office to be a true and complete copy of the original
recorded intervening assignment of mortgage will be promptly delivered to
the applicable Custodian upon receipt thereof by the applicable Original
Loan Seller; or (B) in the case of an intervening assignment where a
public recording office retains the original recorded intervening
assignment or in the case where an intervening assignment is lost after
recordation in a public recording office, a copy of such intervening
assignment certified by such public recording office to be a true and
complete copy of the original recorded intervening assignment;
(vii) the original or duplicate lender's title policy and any riders
thereto or, any one of an original title binder, an original or copy of
the preliminary title report or an original or copy of the title
commitment, and if, copies then certified by the title company;
(viii) a security agreement, chattel mortgage or equivalent document
executed in connection with the Mortgage (if provided);
(ix) residential loan application;
(x) Mortgage Loan closing statement;
(xi) verification of employment and income, if applicable;
(xii) verification of acceptable evidence of source and amount of
down payment;
(xiii) credit report on Mortgagor;
(xiv) residential appraisal report;
(xv) photograph of the Mortgaged Property;
(xvi) survey of the Mortgaged Property;
(xvii) copy of each instrument necessary to complete identification
of any exception set forth in the exception schedule in the title policy,
i.e., map or plat, restrictions, easements, sewer agreements, home
association declarations, etc.;
(xviii) all required disclosure statements;
(xix) if required in an appraisal, termite report, structural
engineer's report, water potability and septic certification;
(xx) sales contract, if applicable; and
(xxi) original powers of attorney, if applicable, with evidence of
recording thereon, if required.
Evidence of payment of taxes and insurance, insurance claim files,
correspondence, current and historical computerized data files (which include
records of tax receipts and payment history from the date of origination), and
all other processing, underwriting and closing papers and records which are
customarily contained in a mortgage loan file and which are required to document
the Mortgage Loan or to service the Mortgage Loan.
EXHIBIT N
[Reserved]
EXHIBIT O
FORM OF CERTIFICATION TO BE PROVIDED WITH FORM-10-K
Re: GSAMP Trust 2006-HE3 (the "Trust") Mortgage Pass-Through
Certificates, Series 2006-HE3, issued pursuant to the Pooling and
Servicing Agreement, dated as of May 1, 2006 (the "Pooling and
Servicing Agreement"), among GS Mortgage Securities Corp., as
Depositor, Xxxxxx Loan Servicing LP, as a Servicer, Select Portfolio
Servicing, Inc., as a Servicer, Avelo Mortgage, L.L.C., as a
Servicer, X.X. Xxxxxx Trust Company, National Association, as a
Custodian, U.S. Bank National Association, as a Custodian, Deutsche
Bank National Trust Company, as a Custodian, LaSalle Bank National
Association, as Trustee, and Xxxxx Fargo Bank, N.A., as Securities
Administrator and Master Servicer, GSAMP Trust 2006-HE3
I, [identify the certifying individual], certify that:
1. I have reviewed this annual report on Form 10-K ("Annual
Report"), and all reports on Form 10-D (collectively with this Annual Report,
the "Reports") required to be filed in respect of period covered by this Annual
Report, of the Trust;
2. Based on my knowledge, the 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 Annual Report;
3. 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 Annual Report is included in the Reports;
4. Based on my knowledge and the compliance statements required in
this Annual Report under Item 1123 of Regulation AB, and except as disclosed in
the Reports, each Servicer has fulfilled its obligations under the Pooling and
Servicing Agreement; and
5. 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 required to be included in this
Annual 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 Annual Report,
except as otherwise disclosed in this Annual Report. Any material instances of
non-compliance described in such reports have been disclosed in this Annual
Report.
In giving the certifications above, I have reasonably relied on information
provided to me by the following unaffiliated parties: the Master Servicer, the
Securities Administrator, the Trustee, the Servicers and each Custodian.
Date: _________________________
_______________________________
[Signature]
[Title]
EXHIBIT P
FORM OF SECURITIES ADMINISTRATOR CERTIFICATION TO BE PROVIDED TO
DEPOSITOR
Re: GSAMP Trust 2006-HE3 (the "Trust") Mortgage Pass-Through
Certificates, Series 2006-HE3, issued pursuant to the Pooling and
Servicing Agreement, dated as of May 1, 2006 (the "Pooling and
Servicing Agreement"), among GS Mortgage Securities Corp., as
Depositor, Xxxxxx Loan Servicing LP, as a Servicer, Select Portfolio
Servicing, Inc., as a Servicer, Avelo Mortgage, L.L.C., as a
Servicer, X.X. Xxxxxx Trust Company, National Association, as a
Custodian, U.S. Bank National Association, as a Custodian, Deutsche
Bank National Trust Company, as a Custodian, LaSalle Bank National
Association, as Trustee, and Xxxxx Fargo Bank, N.A., as Securities
Administrator and Master Servicer, GSAMP Trust 2006-HE3
The Securities Administrator hereby certifies to the Depositor, and
its officers, directors and affiliates, and with the knowledge and intent that
they will rely upon this certification, that:
1. I have reviewed the annual report on Form 10-K for the fiscal
year [___] (the "Annual Report"), and all reports on Form 10-D required to be
filed in respect of period covered by the Annual Report (collectively with the
Annual Report, the "Reports"), of the Trust;
2. To my knowledge, the 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
the Annual Report, it being understood that the Securities Administrator is not
responsible for verifying the accuracy or completeness of information in the
Reports (a) provided by Persons other than the Securities Administrator or any
Subcontractor utilized by the Trustee or (b) relating to Persons other than the
Securities Administrator or any Subcontractor utilized by the Securities
Administrator as to which a Responsible Officer of the Securities Administrator
does not have actual knowledge;
3. To my knowledge, the distribution or servicing information
required to be provided to the Securities Administrator by the Servicers under
the Pooling and Servicing Agreement for inclusion in the Reports is included in
the Reports; and
4. The report on assessment of compliance with servicing criteria
for asset-backed securities applicable to the Securities Administrator and each
Subcontractor utilized by the Securities Administrator and their related
attestation reports on assessment of compliance with servicing criteria
applicable to it required to be included in the Annual Report in accordance with
Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 has been
included as an exhibit to the Annual Report. Any material instances of
non-compliance are described in such report and have been disclosed in the
Annual Report.
Date: _________________________________
_______________________________________
[Signature]
[Title]
EXHIBIT Q-1
FORM OF CERTIFICATION TO BE PROVIDED
BY THE SERVICER TO DEPOSITOR
Re: GSAMP Trust 2006-HE3 (the "Trust") Mortgage Pass-Through
Certificates, Series 2006-HE3, issued pursuant to the Pooling and
Servicing Agreement, dated as of May 1, 2006 (the "Pooling and
Servicing Agreement"), among GS Mortgage Securities Corp., as
Depositor, Xxxxxx Loan Servicing LP, as a Servicer, Select Portfolio
Servicing, Inc., as a Servicer, Avelo Mortgage, L.L.C., as a
Servicer, X.X. Xxxxxx Trust Company, National Association, as a
Custodian, U.S. Bank National Association, as a Custodian, Deutsche
Bank National Trust Company, as a Custodian, LaSalle Bank National
Association, as Trustee, and Xxxxx Fargo Bank, N.A., as Securities
Administrator and Master Servicer, GSAMP Trust 2006-HE3
The Servicer (the "Servicer"), certifies to the Depositor and the
Securities Administrator, and their respective officers, directors and
affiliates, and with the knowledge and intent that they will rely upon this
certification, that:
(1) The Servicer has reviewed the servicer compliance statement of the
Servicer provided to the Depositor and the Securities Administrator for
the Trust's fiscal year [___] in accordance with Item 1123 of Regulation
AB (each a "Compliance Statement"), the report on assessment of the
Servicer's compliance with the servicing criteria set forth in Item
1122(d) of Regulation AB (the "Servicing Criteria") provided to the
Depositor and the Securities Administrator for the Trust's fiscal year
[___] in accordance with Rules 13a-18 and 15d-18 under Securities Exchange
Act of 1934, as amended (the "Exchange Act") and Item 1122 of Regulation
AB (each a "Servicing Assessment"), the registered public accounting
firm's attestation report provided in accordance with Rules 13a-18 and
15d-18 under the Exchange Act and Section 1122(b) of Regulation AB related
to each Servicing Assessment (each an "Attestation Report"), and all
servicing reports, officer's certificates and other information relating
to the servicing of the Mortgage Loans by the Servicer during 200[ ] that
were delivered or caused to be delivered by the Servicer pursuant to the
Agreement (collectively, the "Servicing Information");
(2) Based on the Servicer's knowledge, the Servicing Information, taken as a
whole, does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in the light
of the circumstances under which such statements were made, not misleading
with respect to the period of time covered by the Servicing Information;
(3) Based on the Company's knowledge, the servicing information required to be
provided to the Securities Administrator by the Servicer pursuant to the
Pooling and Servicing Agreement has been provided to the Securities
Administrator;
(4) Based on the Company's knowledge and the compliance review conducted in
preparing Compliance Statement of the Servicer except as disclosed in such
Compliance Statement[(s)], Servicing Assessment[(s)] or Attestation
Report[(s)], the Servicer has fulfilled its obligations under the Pooling
and Servicing Agreement in all material respects.
(5) Each Servicing Assessment of the Servicer and its related Attestation
Report required to be included in the Annual Report in accordance with
Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 has
been provided to the Depositor and the Trustee. Any material instances of
non-compliance are described in any such Servicing Assessment or
Attestation Report.
Date: ____________________________
By: ____________________________
Name: ____________________________
Title: ____________________________
EXHIBIT Q-2
FORM OF CERTIFICATION TO BE PROVIDED
BY THE SUBSERVICER TO DEPOSITOR
Re: GSAMP Trust 2006-HE3 (the "Trust") Mortgage Pass-Through
Certificates, Series 2006-HE3, issued pursuant to the Pooling and
Servicing Agreement, dated as of May 1, 2006 (the "Pooling and
Servicing Agreement"), among GS Mortgage Securities Corp., as
Depositor, Xxxxxx Loan Servicing LP, as a Servicer, Select Portfolio
Servicing, Inc., as a Servicer, Avelo Mortgage, L.L.C., as a
Servicer, X.X. Xxxxxx Trust Company, National Association, as a
Custodian, U.S. Bank National Association, as a Custodian, Deutsche
Bank National Trust Company, as a Custodian, LaSalle Bank National
Association, as Trustee, and Xxxxx Fargo Bank, N.A., as Securities
Administrator and Master Servicer, GSAMP Trust 2006-HE3
The Subservicer (the "Subservicer"), certifies to the Depositor and
the Securities Administrator, and their respective officers, directors and
affiliates, and with the knowledge and intent that they will rely upon this
certification, that:
(1) The Subservicer has reviewed the servicer compliance statement of the
Subservicer provided to the Depositor and the Securities Administrator for
the Trust's fiscal year [___] in accordance with Item 1123 of Regulation
AB (each a "Compliance Statement"), the report on assessment of the
Subservicer's compliance with the servicing criteria set forth in Item
1122(d) of Regulation AB (the "Servicing Criteria") provided to the
Depositor and the Securities Administrator for the Trust's fiscal year
[___] in accordance with Rules 13a-18 and 15d-18 under Securities Exchange
Act of 1934, as amended (the "Exchange Act") and Item 1122 of Regulation
AB (each a "Servicing Assessment"), the registered public accounting
firm's attestation report provided in accordance with Rules 13a-18 and
15d-18 under the Exchange Act and Section 1122(b) of Regulation AB related
to each Servicing Assessment (each an "Attestation Report"), and all
servicing reports, officer's certificates and other information relating
to the servicing of the Mortgage Loans by the Subservicer during 200[ ]
that were delivered or caused to be delivered by the Subservicer pursuant
to the Agreement (collectively, the "Servicing Information");
(2) Based on the Subservicer's knowledge, the Servicing Information, taken as
a whole, does not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements made, in the
light of the circumstances under which such statements were made, not
misleading with respect to the period of time covered by the Servicing
Information;
(3) Based on the Company's knowledge, the servicing information required to be
provided to the Securities Administrator by the Subservicer pursuant to
the Pooling and Servicing Agreement has been provided to the Securities
Administrator;
(4) Based on the Company's knowledge and the compliance review conducted in
preparing Compliance Statement of the Subservicer except as disclosed in
such Compliance Statement[(s)], Servicing Assessment[(s)] or Attestation
Report[(s)], the Subservicer has fulfilled its obligations under the
Pooling and Servicing Agreement in all material respects.
(5) Each Servicing Assessment of the Subservicer and its related Attestation
Report required to be included in the Annual Report in accordance with
Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 has
been provided to the Depositor and the Securities Administrator. Any
material instances of non-compliance are described in any such Servicing
Assessment or Attestation Report.
Date: ____________________________
By: ____________________________
Name: ____________________________
Title: ____________________________
EXHIBIT Q-3
FORM OF CERTIFICATION TO BE PROVIDED
BY THE MASTER SERVICER TO DEPOSITOR
Re: GSAMP Trust 2006-HE3 (the "Trust") Mortgage Pass-Through Certificates,
Series 2006-HE3, issued pursuant to the Pooling and Servicing Agreement,
dated as of May 1, 2006 (the "Pooling and Servicing Agreement"), among GS
Mortgage Securities Corp., as Depositor, Xxxxxx Loan Servicing LP, as a
Servicer, Select Portfolio Servicing, Inc., as a Servicer, Avelo Mortgage,
L.L.C., as a Servicer, X.X. Xxxxxx Trust Company, National Association, as
a Custodian, U.S. Bank National Association, as a Custodian, Deutsche Bank
National Trust Company, as a Custodian, LaSalle Bank National Association,
as Trustee, and Xxxxx Fargo Bank, N.A., as Securities Administrator and
Master Servicer, GSAMP Trust 2006-HE3
The Master Servicer (the "Servicer"), certifies to the Depositor and
the Securities Administrator, and their respective officers, directors and
affiliates, and with the knowledge and intent that they will rely upon this
certification, that:
(1) The Servicer has reviewed the servicer compliance statement of the
Servicer provided to the Depositor and the Securities Administrator for
the Trust's fiscal year [___] in accordance with Item 1123 of Regulation
AB (each a "Compliance Statement"), the report on assessment of the
Servicer's compliance with the servicing criteria set forth in Item
1122(d) of Regulation AB (the "Servicing Criteria") provided to the
Depositor and the Securities Administrator for the Trust's fiscal year
[___] in accordance with Rules 13a-18 and 15d-18 under Securities Exchange
Act of 1934, as amended (the "Exchange Act") and Item 1122 of Regulation
AB (each a "Servicing Assessment"), the registered public accounting
firm's attestation report provided in accordance with Rules 13a-18 and
15d-18 under the Exchange Act and Section 1122(b) of Regulation AB related
to each Servicing Assessment (each an "Attestation Report"), and all
servicing reports, officer's certificates and other information relating
to the servicing of the Mortgage Loans by the Servicer during 200[ ] that
were delivered or caused to be delivered by the Servicer pursuant to the
Agreement (collectively, the "Servicing Information");
(2) Based on the Servicer's knowledge, the Servicing Information, taken as a
whole, does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in the light
of the circumstances under which such statements were made, not misleading
with respect to the period of time covered by the Servicing Information;
(3) Based on the Company's knowledge, the servicing information required to be
provided to the Securities Administrator by the Servicer pursuant to the
Pooling and Servicing Agreement has been provided to the Securities
Administrator;
(4) Based on the Company's knowledge and the compliance review conducted in
preparing Compliance Statement of the Servicer except as disclosed in such
Compliance Statement[(s)], Servicing Assessment[(s)] or Attestation
Report[(s)], the Servicer has fulfilled its obligations under the Pooling
and Servicing Agreement in all material respects.
(5) Each Servicing Assessment of the Servicer and its related Attestation
Report required to be included in the Annual Report in accordance with
Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 has
been provided to the Depositor and the Securities Administrator. Any
material instances of non-compliance are described in any such Servicing
Assessment or Attestation Report.
Date: ____________________________
By: ____________________________
Name: ____________________________
Title: ____________________________
EXHIBIT R
FORM OF POWER OF ATTORNEY
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
[Xxxxxx Loan Servicing LP
0000 Xxxx Xxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000]
[Select Portfolio Servicing, Inc.
0000 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000]
[Avelo Mortgage, L.L.C
000 X. Xxx Xxxxxxx Xxxx., Xxxxx 000
Xxxxxx, Xxxxx 00000]
Attn: _________________________________
LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that Xxxxx Fargo Bank, N.A., having its
principal place of business at 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
00000, as Securities Administrator (the "Securities Administrator") pursuant to
that Pooling and Servicing Agreement among GS Mortgage Securities Corp. (the
"Depositor"), Xxxxxx Loan Servicing LP, as a servicer ("Xxxxxx"), Select
Portfolio Servicing, Inc., as a servicer ("SPS"), Avelo Mortgage, L.L.C., as a
servicer (together with Xxxxxx and SPS, the "Servicers"), X.X. Xxxxxx Trust
Company, National Association, as a custodian ("X.X. Xxxxxx"), U.S. Bank
National Association ("U.S. Bank"), as a custodian, Deutsche Bank National Trust
Company, as a custodian (together with X.X. Xxxxxx and U.S. Bank, the
"Custodians"), LaSalle Bank National Association, as trustee (the "Trustee") and
Xxxxx Fargo Bank, N.A., as master servicer (the "Master Servicer") and
securities administrator (the "Securities Administrator"), dated as of May 1,
2006 (the "Pooling and Servicing Agreement"), hereby constitutes and appoints
[Xxxxxx] [SPS] [Avelo], by and through [Litton's] [SPS'] [Xxxxx's] officers, the
Securities Administrator's true and lawful Attorney-in-Fact, in the Securities
Administrator's name, place and stead and for the Securities Administrator's
benefit, in connection with all mortgage loans serviced by [Xxxxxx] [SPS]
[Avelo] pursuant to the Pooling and Servicing Agreement for the purpose of
performing all acts and executing all documents in the name of the Securities
Administrator as may be customarily and reasonably necessary and appropriate to
effectuate the following enumerated transactions in respect of any of the
mortgages or deeds of trust (the "Mortgages" and the "Deeds of Trust",
respectively) and promissory notes secured thereby (the "Mortgage Notes") for
which the undersigned is acting as Securities Administrator for various
certificateholders (whether the undersigned is named therein as mortgagee or
beneficiary or has become mortgagee by virtue of endorsement of the Mortgage
Note secured by any such Mortgage or Deed of Trust) and for which [Xxxxxx] [SPS]
[Avelo] is acting as servicer, all subject to the terms of the Pooling and
Servicing Agreement.
This appointment shall apply to the following enumerated transactions
only:
(1) The modification or re-recording of a Mortgage or Deed of Trust, where
said modification or re-recordings is for the purpose of correcting the
Mortgage or Deed of Trust 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 or Deed of
Trust as insured.
(2) The subordination of the lien of a Mortgage or Deed of Trust to an
easement in favor of a public utility company of 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 or requests to trustees to accomplish same.
(3) 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.
(4) The completion of loan assumption agreements.
(5) The full satisfaction/release of a Mortgage or Deed of Trust or full
conveyance upon payment and discharge of all sums secured thereby,
including, without limitation, cancellation of the related Mortgage Note.
(6) The assignment of any Mortgage or Deed of Trust and the related Mortgage
Note, in connection with the repurchase of the mortgage loan secured and
evidenced thereby.
(7) The full assignment of a Mortgage or Deed of Trust 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.
(8) With respect to a Mortgage or Deed of Trust, 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:
(9) The substitution of trustee(s) serving under a Deed of Trust, in
accordance with state law and the Deed of Trust;
1. the preparation and issuance of statements of breach or
non-performance;
2. the preparation and filing of notices of default and/or notices of
sale;
3. the cancellation/rescission of notices of default and/or notices of
sale;
4. the taking of a deed in lieu of foreclosure; and
5. the preparation and execution of such other documents and
performance of such other actions as may be necessary under the
terms of the Mortgage, Deed of Trust or state law to expeditiously
complete said transactions in paragraphs 8.a. through 8.e., above.
The undersigned gives said Attorney-in-Fact full power and authority to execute
such instruments and to do and perform all and every act and thing necessary and
proper to carry into effect the power or powers granted by or under this Limited
Power of Attorney as fully as the undersigned might or could do, and hereby does
ratify and confirm to all that said Attorney-in-Fact shall lawfully do or cause
to be done by authority hereof.
Third parties without actual notice may rely upon the exercise of the power
granted under this Limited Power of attorney; and may be satisfied that this
Limited Power of Attorney shall continue in full force and effect and has not
been revoked unless an instrument of revocation has been made in writing by the
undersigned.
IN WITNESS WHEREOF, __________________ as Securities Administrator pursuant to
that Pooling and Servicing Agreement among the Depositor, the Servicers, the
applicable Custodian, the Master Servicer, the Securities Administrator and the
Trustee, dated as of May 1, 2006 (GSAMP Trust 2006-HE3 Mortgage Pass-Through
Certificates, Series 2006-HE3), has caused its corporate seal to be hereto
affixed and these presents to be signed and acknowledged in its name and behalf
by ______________ its duly elected and authorized Vice President this __ day of
________, 200__.
By:____________________________________
as Securities Administrator for GSAMP
Trust 2006-HE3 Mortgage Pass-Through
Certificates, Series 2006-HE3
By:____________________________________
Name:
Title:
STATE OF ________
COUNTY OF ______
On ___________, 200__, before me, the undersigned, a Notary Public in and for
said state, personally appeared _______________, Vice President of
________________as Securities Administrator for ______________ Mortgage Loan
Asset Backed Certificates, Series 200__-___, personally known to me to be the
person whose name is subscribed to the within instrument and acknowledged to me
that he/she executed that same in his/her authorized capacity, and that by
his/her signature on the instrument the entity upon behalf of which the person
acted and executed the instrument.
WITNESS my hand and official seal.
(SEAL)
_________________________________________
Notary Public
My Commission Expires __________________
EXHIBIT S
REPRESENTATIONS AND WARRANTIES AGREEMENT
This REPRESENTATIONS AND WARRANTIES AGREEMENT ("Agreement"), dated
as of May 26, 2006 (the "Closing Date"), is between XXXXXXX XXXXX MORTGAGE
COMPANY ("GSMC" or the "Seller") and GS MORTGAGE SECURITIES CORP. (the
"Depositor" or the "Purchaser").
W I T N E S S E T H:
WHEREAS, GSMC acquired certain mortgage loans (the "Acoustic
Mortgage Loans") set forth on the mortgage loan schedule attached hereto as
Schedule I (the "Acoustic Mortgage Loan Schedule") from Acoustic Home Loans, LLC
("Acoustic") pursuant to that certain Second Amended and Restated Flow Mortgage
Loan Purchase and Warranties Agreement, dated as of November 1, 2005 (the
"Acoustic Purchase Agreement"), between GSMC, as purchaser, and Acoustic, as
seller;
WHEREAS, GSMC acquired certain mortgage loans (the "Conduit Mortgage
Loans" and together with the Acoustic Mortgage Loans, the "Mortgage Loans"), the
Conduit Mortgage Loans set forth on the mortgage loan schedule attached hereto
as Schedule II (the "Conduit Mortgage Loan Schedule") from various mortgage loan
sellers pursuant to certain Master Loan Purchase Agreements (the "Conduit
Purchase Agreements" and together with the Acoustic Purchase Agreement the
"Purchase Agreements"), each between GSMC, as purchaser, and the applicable
mortgage loan seller, as seller;
WHEREAS, pursuant to that certain bill of sale, dated as of May 26,
2006, between GSMC and the Depositor, the Mortgage Loans are to be transferred
by GSMC to the Depositor;
WHEREAS, pursuant to that certain Pooling and Servicing Agreement,
dated as of May 1, 2006 (the "Pooling and Servicing Agreement"), among the
Depositor, Xxxxxx Loan Servicing LP, as a servicer, Select Portfolio Servicing,
Inc., as a servicer, Avelo Mortgage, L.L.C., as a servicer (collectively, the
"Servicers"), X.X. Xxxxxx Trust Company, National Association, as a custodian,
U.S. Bank National Association, as a custodian and Deutsche Bank National Trust
Company, as a custodian (collectively, the "Custodians"), Xxxxx Fargo Bank,
National Association as securities administrator (the "Securities
Administrator") and as master servicer (the "Master Servicer"), and LaSalle Bank
National Association, as trustee (the "Trustee"), the GSAMP Trust 2006-HE3 (the
"Trust") shall issue its Mortgage Pass-Through Certificates, Series 2006-HE3
(the "Certificates"), representing beneficial ownership interest in a trust, the
assets of which include, but are not limited to, the Mortgage Loans transferred
by the Depositor to the Trust pursuant to the Pooling and Servicing Agreement;
WHEREAS, in connection with the sale of the Mortgage Loans by GSMC
to the Depositor, GSMC shall make various representations and warranties to the
Depositor regarding the Mortgage Loans;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants herein contained, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
Section 1. Defined Terms.
(a) Unless otherwise defined herein, capitalized terms used herein
shall have the meanings assigned to such terms in the Pooling and Servicing
Agreement. In the event of a conflict between any of the defined terms contained
in this Agreement and the Pooling and Servicing Agreement, the definitions
contained in the Pooling and Servicing Agreement shall control.
(b) The following capitalized terms shall have the meanings assigned
to such terms below:
Accepted Servicing Practices: With respect to any Mortgage Loan
those mortgage servicing practices of prudent mortgage lending institutions
which service mortgage loans of the same type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located.
ALTA: The American Land Title Association, or any successor thereto.
Covered Loan: A Mortgage Loan categorized as Covered pursuant to
Appendix E of Standard & Poor's Glossary.
Deleted Mortgage Loan: A Mortgage Loan that is repurchased or
replaced or to be replaced with a Qualified Substitute Mortgage Loan by GSMC in
accordance with the terms of this Agreement.
High Cost Loan: A Mortgage Loan that is (a) covered by the Home
Ownership and Equity Protection Act of 1994, (b) identified, classified or
characterized as "high cost," "threshold," "covered", or "predatory" under any
other applicable state, federal or local law (or a similarly identified,
classified or characterized loan using different terminology under a law
imposing heightened regulatory scrutiny or additional legal liability for
residential mortgage loans having high interest rates, points and/or fees) or
(c) categorized as "High Cost" or "Covered" pursuant to Appendix E of the
Standard & Poor's Glossary.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan, the
ratio (expressed as a percentage) of the outstanding principal amount of the
such Mortgage Loan as of the Cut-off Date (unless otherwise indicated), to the
lesser of (a) the Appraised Value of the Mortgaged Property at origination and
(b) if such Mortgage Loan was made to finance the acquisition of the related
Mortgaged Property, the purchase price of the Mortgaged Property,
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Qualified Substitute Mortgage Loan: A mortgage loan eligible to be
substituted by GSMC for a Deleted Mortgage Loan which must, on the date of such
substitution, (i) have an outstanding principal balance, after deduction of all
scheduled payments due in the month of substitution (or in the case of a
substitution of more than one mortgage loan for a Deleted Mortgage Loan, an
aggregate principal balance), not in excess of the outstanding principal balance
of the Deleted Mortgage Loan (the amount of any shortfall will be paid by GSMC
to the Depositor or its designee in the month of substitution); (ii) have a
Mortgage Interest Rate not less than, and not more than 1% greater than, the
Mortgage Interest Rate of the Deleted Mortgage Loan; (iii) have a remaining term
to maturity not greater than, and not more than one year less than, that of the
Deleted Mortgage Loan (iv) be of the same type as the Deleted Mortgage Loan
(i.e., fixed rate or adjustable rate with same Periodic Rate Cap, and Index);
and (v) comply with each representation and warranty (respecting individual
Mortgage Loans) set forth in Section 2 of this Agreement.
Section 2. Representations and Warranties of GSMC.
(a) As to each Acoustic Mortgage Loan (except as otherwise set forth
on Exhibit III hereto), GSMC hereby makes the representations and warranties set
forth in Exhibit I hereto to the Depositor as of the Closing Date (or such other
date as set forth herein).
(b) As to each Conduit Mortgage Loan (except as otherwise set forth
on Exhibit III hereto), GSMC hereby makes the representations and warranties set
forth in Exhibit II hereto to the Depositor as of the Closing Date (or such
other date as set forth herein).
(c) None of the Group I Mortgage Loans has a Prepayment Premium in
excess of three years.
Section 3. Repurchase or Substitution Obligation for Breach of a
Representation or Warranty.
(a) Within sixty (60) days of the earlier of either discovery by or
notice to GSMC of any breach of a representation or warranty which materially
and adversely affects the value of the Mortgage Loans or the interest of the
Depositor therein (or which materially and adversely affects the value of the
applicable Mortgage Loan or the interest of the Depositor therein), GSMC shall
cure such breach in all material respects and, if such breach cannot be cured,
GSMC shall, at the Depositor's option, within sixty (60) calendar days of GSMC's
receipt of request from the Depositor, repurchase such Mortgage Loan at the
Repurchase Price. In the event that such a breach shall involve any
representation or warranty set forth in Section 2 of this Agreement, and such
breach cannot be cured within sixty (60) days of the earlier of either discovery
by or notice to GSMC of such breach, all of the Mortgage Loans materially and
adversely affected thereby shall, at the Depositor's option, be repurchased by
GSMC at the Repurchase Price. Notwithstanding the above sentence, within thirty
(30) days of the earlier of either discovery by, or notice to, GSMC of any
breach of the representations or warranties set forth in (1) clauses (y), (aa),
(bb), (cc), (dd) and (ff) of Exhibit I and (2) clauses (t), (x), (bb), (cc),
(dd) and (ff) of Exhibit II, GSMC shall repurchase the affected Mortgage Loan or
Mortgage Loans at the Repurchase Price, together with all expenses incurred by
the Depositor as a result of such repurchase. Any repurchase of a Mortgage Loan
or Loans pursuant to the foregoing provisions of this Section 3 shall be
accomplished by direct remittance of the Repurchase Price to the Depositor or
its designee in accordance with the Depositor's instructions.
However, if the breach shall involve a representation or warranty
set forth in Section 2 of this Agreement relating to any Mortgage Loan and GSMC
discovers or receives notice of any such breach within two years of the Closing
Date, GSMC shall, at the Depositor's option and provided that GSMC has a
Qualified Substitute Mortgage Loan, rather than repurchase such Mortgage Loan as
provided above, remove such Mortgage Loan (a "Deleted Mortgage Loan") and
substitute in its place a Qualified Substitute Mortgage Loan or Mortgage Loans,
provided that any such substitution shall be effected not later than two years
after the Closing Date. If GSMC has no Qualified Substitute Mortgage Loan, GSMC
shall repurchase the deficient Mortgage Loan. Any repurchase of a Mortgage Loan
or Mortgage Loans pursuant to the foregoing provisions of this Section 3 shall
be accomplished by direct remittance of the Repurchase Price to the Depositor or
its designee in accordance with the Depositor's instructions.
At the time of repurchase or substitution, the Depositor and GSMC
shall arrange for the reassignment of the Deleted Mortgage Loan to GSMC and the
delivery to GSMC of any documents held by the Trustee or the Custodian, as the
case may be, relating to the Deleted Mortgage Loan. In the event of a repurchase
or substitution, GSMC shall, simultaneously with such reassignment, give written
notice to the Depositor that such repurchase or substitution has taken place,
amend the applicable Mortgage Loan Schedule to reflect the withdrawal of the
Deleted Mortgage Loan from this Agreement, and, in the case of substitution,
identify a Qualified Substitute Mortgage Loan and amend the applicable Mortgage
Loan Schedule to reflect the addition of such Qualified Substitute Mortgage Loan
to this Agreement. In connection with any such substitution, GSMC shall be
deemed to have made as to such Qualified Substitute Mortgage Loan the
representations and warranties set forth in this Agreement except that all such
representations and warranties set forth in this Agreement shall be deemed made
as of the date of such substitution. GSMC shall effect such substitution by
delivering to the Trustee or the Custodian or to such other party as the
Depositor may designate in writing for such Qualified Substitute Mortgage Loan
the documents required by the Pooling and Servicing Agreement, with the Mortgage
Note endorsed as required by the Pooling and Servicing Agreement. No
substitution will be made in any calendar month after the initial Determination
Date for such month. GSMC shall remit directly to the Depositor, or its designee
in accordance with the Depositor's instructions the monthly payment less the
Servicing Fee due, if any, on such Qualified Substitute Mortgage Loan or
Mortgage Loans in the month following the date of such substitution. Monthly
payments due with respect to Qualified Substitute Mortgage Loans in the month of
substitution shall be retained by GSMC. For the month of substitution,
distributions to the Depositor shall include the monthly payment due on any
Deleted Mortgage Loan in the month of substitution, and GSMC shall thereafter be
entitled to retain all amounts subsequently received by GSMC in respect of such
Deleted Mortgage Loan.
For any month in which GSMC substitutes a Qualified Substitute
Mortgage Loan for a Deleted Mortgage Loan, GSMC shall determine the amount (if
any) by which the aggregate principal balance of all Qualified Substitute
Mortgage Loans as of the date of substitution is less than the aggregate Stated
Principal Balance of all Deleted Mortgage Loans (after application of scheduled
principal payments due in the month of substitution). The amount of such
shortfall, together with one month's interest at the Mortgage Interest Rate on
the Deleted Mortgage Loan, shall be distributed by GSMC directly to the
Depositor or its designee in accordance with the Depositor's instructions within
two (2) Business Days of such substitution.
Any cause of action against GSMC relating to or arising out of the
breach of any representations and warranties made in Section 2 shall accrue as
to any Mortgage Loan upon (i) discovery of such breach by the Depositor or
notice thereof by GSMC to the Depositor, (ii) failure by GSMC to cure such
breach, repurchase such Mortgage Loan or substitute a Qualified Substitute
Mortgage Loan as specified above, and (iii) demand upon GSMC by the Depositor
for compliance with this Agreement.
(b) It is understood and agreed that the obligation of GSMC set
forth in Section 3(a) to repurchase or substitute for a Mortgage Loan in breach
of a representation or warranty contained in Section 2 constitutes the sole
remedy of the Depositor or any other person or entity with respect to such
breach.
(c) In the event a Conduit Mortgage Loan is required to be
repurchased due to an early payment default under the Conduit Purchase
Agreements, GSMC shall pay to GSAMP Trust 2006-HE3 (the "Trust") the applicable
repurchase price pursuant to the Conduit Purchase Agreements.
Section 4. Document Delivery Requirements.
GSMC shall deliver to the Depositor all documents and instruments
required under Section 2.01 of the Pooling and Servicing Agreement with respect
to the Conduit Mortgage Loans. In the event any document or instrument required
to be delivered to the Depositor pursuant to Section 2.01 of the Pooling and
Servicing Agreement, including an original or copy of any document submitted for
recordation to the appropriate public recording office, is not so delivered to
the Depositor, and in the event that GSMC does not cure such failure within 60
days of discovery or receipt of written notification of such failure from the
Depositor, GSMC shall, at the Depositor's option, repurchase such Conduit
Mortgage Loan at the Repurchase Price, together with all expenses incurred by
the Depositor as a result of such repurchase.
Section 5. Term of Representation and Warranties.
The representations and warranties of GSMC set forth in Section 2
shall inure to the benefit of the Depositor and its successors and assigns until
all amounts payable to Certificateholders under the Pooling and Servicing
Agreement have been paid in full.
Section 6. Execution in Counterparts.
This Agreement may be executed in any number of counterparts and by
different parties hereto on separate counterparts, each of which counterparts,
when so executed and delivered, shall be deemed to be an original and all of
which counterparts, taken together, shall constitute but one and the same
Agreement.
Section 7. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARDS TO CONFLICTS OF LAWS
PRINCIPLES.
Section 8. Severability of Provisions.
Any provision of this Agreement which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
Section 9. Captions.
The captions in this Agreement are for convenience of reference only
and shall not define or limit any of the terms or provisions hereof.
Section 10. Successors and Assigns.
This Agreement may not be assigned, pledged or hypothecated by any
party hereto, except that the Depositor's rights under this Agreement may be
assigned to the Securities Administrator and the Trustee and are exercisable by
the Trustee (and its successors and assigns) and will be enforceable by the
Securities Administrator and the Trustee. Any entity into which GSMC or the
Depositor may be merged or consolidated shall, without the requirement for any
further writing, be deemed GSMC or the Depositor, respectively, hereunder.
Section 11. Third Party Beneficiary.
The parties agree that the Trust (including the Trustee, the
Securities Administrator, the Master Servicer and the Servicers acting on the
Trust's behalf) is an intended third-party beneficiary of this Agreement with
the right to enforce the provisions hereof and the rights to obtain the benefit
of the enforcement of the obligations and covenants of GSMC under Section 3 of
this Agreement as if the Trustee were a party to this Agreement.
Section 12. Amendments.
This Agreement may be amended from time to time by the parties
hereto.
[Remainder of this Page Intentionally Left Blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date and year first above written.
XXXXXXX XXXXX MORTGAGE COMPANY
By: Xxxxxxx Xxxxx Real Estate Funding Corp.,
its General Partner
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
GS MORTGAGE SECURITIES CORP.
By: /s/ Xxxxxxxx Xxxx
-----------------------------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
EXHIBIT I
Representations and Warranties Regarding the Acoustic Mortgage Loans
(a) Acoustic Mortgage Loans as Described. The information set forth in the
Acoustic Mortgage Loan Schedule with respect to the Acoustic Mortgage Loans is
complete, true and correct;
(b) Payments Current. All payments required to be made up to the Closing
Date for the Acoustic Mortgage Loan under the terms of the Mortgage Note, other
than payments for which the related due date was not thirty or more days prior
to the Closing Date, have been made and credited. No Acoustic Mortgage Loan has
been delinquent for thirty or more days at any time since the origination of the
Acoustic Mortgage Loan. The first Monthly Payment shall be made with respect to
the Acoustic Mortgage Loan on its Due Date or within thirty (30) days of its Due
Date, all in accordance with the terms of the related Mortgage Note;
(c) No Outstanding Charges. There are no defaults in complying with the
terms of the Mortgage, and all taxes, governmental assessments, insurance
premiums, water, sewer and municipal charges, leasehold payments or ground rents
which previously became due and owing have been paid, or an escrow of funds has
been established in an amount sufficient to pay for every such item which
remains unpaid and which has been assessed but is not yet due and payable.
Acoustic has not advanced funds, or induced, solicited or knowingly received any
advance of funds by a party other than the Mortgagor, directly or indirectly,
for the payment of any amount required under the Acoustic Mortgage Loan, except
for interest accruing from the date of the Mortgage Note or date of disbursement
of the Acoustic Mortgage Loan proceeds, whichever is earlier, to the day which
precedes by one month the Due Date of the first installment of principal and
interest;
(d) Original Terms Unmodified. The terms of the Mortgage Note and Mortgage
have not been impaired, waived, altered or modified in any respect, from the
date of origination except by a written instrument which has been recorded, if
necessary to protect the interests of GSMC, and which has been delivered to the
Custodian or to such other Person as GSMC shall designate in writing, and the
terms of which are reflected in the Acoustic Mortgage Loan Schedule. No Acoustic
Mortgage Loan has been modified so as to restructure the payment obligations or
re-age the Acoustic Mortgage Loan. The substance of any such waiver, alteration
or modification has been approved by the title insurer, if any, to the extent
required by the policy, and its terms are reflected on the Acoustic Mortgage
Loan Schedule, if applicable. No Mortgagor has been released, in whole or in
part, except in connection with an assumption agreement, approved by the issuer
of the title insurer, to the extent required by the policy, and which assumption
agreement is part of the Mortgage Loan File delivered to the Custodian or to
such other Person as GSMC shall designate in writing and the terms of which are
reflected in the Acoustic Mortgage Loan Schedule;
(e) No Defenses. The Acoustic Mortgage Loan is not subject to any right of
rescission, set-off, counterclaim or defense, including without limitation the
defense of usury, nor will the operation of any of the terms of the Mortgage
Note or the Mortgage, or the exercise of any right thereunder, render either the
Mortgage Note or the Mortgage unenforceable, in whole or in part, or subject to
any right of rescission, set-off, counterclaim or defense, including without
limitation the defense of usury, and no such right of rescission, set-off,
counterclaim or defense has been asserted with respect thereto, and to the best
of the Seller's knowledge, no Mortgagor was a debtor in any state or Federal
bankruptcy or insolvency proceeding at the time the Acoustic Mortgage Loan was
originated;
(f) Hazard Insurance. Pursuant to the terms of the Mortgage, all buildings
or other improvements upon the Mortgaged Property are insured by a generally
acceptable insurer against loss by fire, hazards of extended coverage and such
other hazards as are provided for in the Xxxxxx Xxx Guides or by Freddie Mac, as
well as all additional requirements set forth in Section 2.10 of the Interim
Servicing Agreement. If required by the National Flood Insurance Act of 1968, as
amended, each Acoustic Mortgage Loan is covered by a flood insurance policy
meeting the requirements of the current guidelines of the Federal Insurance
Administration is in effect which policy conforms to Xxxxxx Xxx and Freddie Mac,
as well as all additional requirements set forth in Section 2.10 of the Interim
Servicing Agreement, dated as of November 1, 2004, between Acoustic and GSMC
(the "Interim Servicing Agreement"). All individual insurance policies contain a
standard mortgagee clause naming Acoustic and its successors and assigns as
mortgagee, and all premiums thereon have been paid. The Mortgage obligates the
Mortgagor thereunder to maintain the hazard insurance policy at the Mortgagor's
cost and expense, and on the Mortgagor's failure to do so, authorizes the holder
of the Mortgage to obtain and maintain such insurance at such Xxxxxxxxx's cost
and expense, and to seek reimbursement therefor from the Mortgagor. Where
required by state law or regulation, the Mortgagor has been given an opportunity
to choose the carrier of the required hazard insurance, provided the policy is
not a "master" or "blanket" hazard insurance policy covering a condominium, or
any hazard insurance policy covering the common facilities of a planned unit
development. The hazard insurance policy is the valid and binding obligation of
the insurer, is in full force and effect, and will be in full force and effect
and inure to the benefit of the Seller upon the consummation of the transactions
contemplated by the Acoustic Purchase Agreement. Acoustic has not engaged in,
and has no knowledge of the Mortgagor's or any servicer's having engaged in, any
act or omission which would impair the coverage of any such policy, the benefits
of the endorsement provided for herein, or the validity and binding effect of
such policy, without limitation, no unlawful fee, commission, kickback or other
unlawful compensation or value of any kind has been or will be received,
retained or realized by any attorney, firm or other person or entity, and no
such unlawful items have been received, retained or realized by Acoustic;
(g) Compliance with Applicable Laws. Any and all requirements of any
federal, state or local law including, without limitation, usury,
truth-in-lending, real estate settlement procedures, consumer credit protection,
equal credit opportunity and disclosure laws or unfair and deceptive practices
laws applicable to the Acoustic Mortgage Loan including, without limitation, any
provisions relating to Prepayment Premiums, have been complied with, the
consummation of the transactions contemplated hereby will not involve the
violation of any such laws or regulations. Each Acoustic Mortgage Loan at the
time it was made complied in all material respects with applicable local, state,
and federal laws, including, but not limited to, all applicable predatory and
abusive lending laws. Acoustic shall maintain in its possession, available for
the Seller's inspection, and shall deliver to the Seller upon demand, evidence
of compliance with all such requirements;
(h) No Satisfaction of Mortgage. The Mortgage has not been satisfied,
canceled, subordinated or rescinded, in whole or in part, and the Mortgaged
Property has not been released from the lien of the Mortgage, in whole or in
part, nor has any instrument been executed that would effect any such release,
cancellation, subordination or rescission. Acoustic has not waived the
performance by the Mortgagor of any action, if the Mortgagor's failure to
perform such action would cause the Acoustic Mortgage Loan to be in default, nor
has Acoustic waived any default resulting from any action or inaction by the
Mortgagor;
(i) Location and Type of Mortgaged Property. The Mortgaged Property is
located in the state identified in the Acoustic Mortgage Loan Schedule and
consists of real property with a detached single family residence erected
thereon, or a two- to four-family dwelling, or an individual condominium unit in
a low-rise condominium project, or an individual unit in a planned unit
development or a de minimis planned unit development which is in each case four
stories or less, provided, however, that any mobile home (double wide only) or
manufactured dwelling shall conform with the applicable Xxxxxx Xxx and Freddie
Mac requirements regarding such dwellings and that no Acoustic Mortgage Loan is
secured by a single parcel of real property with a cooperative housing
corporation, a log home or a mobile home erected thereon or by a mixed-use
property, a property in excess of 10 acres, or other unique property types. As
of the date of origination, no portion of the Mortgaged Property was used for
commercial purposes, and since the date of origination, no portion of the
Mortgaged Property has been used for commercial purposes; provided, that
Mortgaged Properties which contain a home office shall not be considered as
being used for commercial purposes as long as the Mortgaged Property has not
been altered for commercial purposes and is not storing any chemicals or raw
materials other than those commonly used for homeowner repair, maintenance
and/or household purposes. With respect to any Acoustic Mortgage Loan secured by
a Mortgaged Property improved by manufactured housing, (i) the related
manufactured housing unit is permanently affixed to the land, and (ii) the
related manufactured housing unit and the related land are subject to a Mortgage
properly filed in the appropriate public recording office and naming Acoustic as
mortgagee and (iii) the related Mortgaged Property is not located in the state
of New Jersey.
(j) Valid First or Second Lien. The Mortgage is a valid, subsisting,
enforceable and perfected, first or second lien (as applicable) on the Mortgaged
Property, including all buildings and improvements on the Mortgaged Property and
all installations and mechanical, electrical, plumbing, heating and air
conditioning systems located in or annexed to such buildings, and all additions,
alterations and replacements made at any time with respect to the foregoing. The
lien of the Mortgage is subject only to:
(i) the lien of current real property taxes and assessments not yet
due and payable;
(ii) covenants, conditions and restrictions, rights of way,
easements and other matters of the public record as of the date of
recording acceptable to prudent mortgage lending institutions generally
and specifically referred to in the lender's title insurance policy
delivered to the originator of the Acoustic Mortgage Loan and (a)
specifically referred to or otherwise considered in the appraisal made for
the originator of the Acoustic Mortgage Loan or (b) which do not adversely
affect the Appraised Value of the Mortgaged Property set forth in such
appraisal;
(iii) other matters to which like properties are commonly subject
which do not materially interfere with the benefits of the security
intended to be provided by the Mortgage or the use, enjoyment, value or
marketability of the related Mortgaged Property; and
(iv) with respect to Second Lien Mortgage Loans, the lien of the
first mortgage on the Mortgaged Property.
Any security agreement, chattel mortgage or equivalent document
related to and delivered in connection with the Acoustic Mortgage Loan
establishes and creates a valid, subsisting, enforceable and perfected (A)
first lien and first priority security interest with respect to each first
lien mortgage loan, or (B) second lien and second priority security
interest with respect to each Second Lien Mortgage Loan, in either case,
on the property described therein and Acoustic has full right to sell and
assign the same to GSMC.
(k) Validity of Mortgage Documents. The Mortgage Note and the
Mortgage and any other agreement executed and delivered by a Mortgagor in
connection with an Acoustic Mortgage Loan are genuine, and each is the
legal, valid and binding obligation of the maker thereof enforceable in
accordance with its terms (including, without limitation, any provisions
therein relating to Prepayment Premiums). To the best of the Seller's
knowledge, all parties to the Mortgage Note, the Mortgage and any other
such related agreement had legal capacity to enter into the Acoustic
Mortgage Loan and to execute and deliver the Mortgage Note, the Mortgage
and any such agreement, and the Mortgage Note, the Mortgage and any other
such related agreement have been duly and properly executed by other such
related parties. No fraud, error, omission, misrepresentation, negligence
or similar occurrence with respect to a Mortgage Loan has taken place on
the part of any Person, including without limitation, the Mortgagor, any
appraiser, any builder or developer, or any other party involved in the
origination or servicing of the Mortgage Loan. Acoustic has reviewed all
of the documents constituting the Servicing File and has made such
inquiries as it deems necessary to make and confirm the accuracy of the
representations set forth herein;
(l) Full Disbursement of Proceeds. The Acoustic Mortgage Loan has
been closed and the proceeds of the Acoustic Mortgage Loan have been fully
disbursed and there is no requirement for future advances thereunder, and
any and all requirements as to completion of any on-site or off-site
improvement and as to disbursements of any escrow funds therefor have been
complied with. All costs, fees and expenses incurred in making or closing
the Acoustic Mortgage Loan and the recording of the Mortgage were paid,
and the Mortgagor is not entitled to any refund of any amounts paid or due
under the Mortgage Note or Mortgage;
(m) Ownership. Acoustic is the sole owner of record and holder of
the Acoustic Mortgage Loan and the indebtedness evidenced by each Mortgage
Note. The Acoustic Mortgage Loan is not assigned or pledged, and Acoustic
has good, indefeasible and marketable title thereto, and has full right to
transfer and sell the Acoustic Mortgage Loan to GSMC free and clear of any
encumbrance, equity, participation interest, lien, pledge, charge, claim
or security interest, and has full right and authority subject to no
interest or participation of, or agreement with, any other party, to sell
and assign each Acoustic Mortgage Loan pursuant to the Acoustic Purchase
Agreement and following the sale of each Mortgage Loan, GSMC will own such
Acoustic Mortgage Loan free and clear of any encumbrance, equity,
participation interest, lien, pledge, charge, claim or security interest.
Acoustic intends to relinquish all rights to possess, control and monitor
the Acoustic Mortgage Loan. After the related Closing Date, Acoustic will
have no right to modify or alter the terms of the sale of the Acoustic
Mortgage Loan and Acoustic will have no obligation or right to repurchase
the Acoustic Mortgage Loan, except as provided in this Agreement;
(n) Doing Business. All parties which have had any interest in the
Acoustic Mortgage Loan, whether as mortgagee, assignee, pledgee or
otherwise, are (or, during the period in which they held and disposed of
such interest, were) (1) in compliance with any and all applicable
licensing requirements of the laws of the state wherein the Mortgaged
Property is located, and (2) either (i) organized under the laws of such
state, or (ii) qualified to do business in such state, or (iii) a federal
savings and loan association, a savings bank or a national bank having a
principal office in such state, or (3) not doing business in such state;
(o) Title Insurance. The Acoustic Mortgage Loan is covered by an
ALTA lender's title insurance policy, or with respect to any Acoustic
Mortgage Loan for which the related Mortgaged Property is located in
California a CLTA lender's title insurance policy, or other generally
acceptable form of policy or insurance acceptable to Xxxxxx Xxx or Freddie
Mac and each such title insurance policy is issued by a title insurer
acceptable to Xxxxxx Xxx or Freddie Mac and qualified to do business in
the jurisdiction where the Mortgaged Property is located, insuring
Acoustic, its successors and assigns, as to the first priority lien (with
respect to first lien Acoustic Mortgage Loans) or second priority lien
(with respect to Second Lien Mortgage Loans) of the Mortgage in the
original principal amount of the Acoustic Mortgage Loan, subject only to
the exceptions contained in clauses (1), (2), (3) and (4) of paragraph (j)
of this Exhibit I, and in the case of adjustable rate Acoustic Mortgage
Loans, against any loss by reason of the invalidity or unenforceability of
the lien resulting from the provisions of the Mortgage providing for
adjustment to the Mortgage Interest Rate and Monthly Payment. Where
required by state law or regulation, the Mortgagor has been given the
opportunity to choose the carrier of the required mortgage title
insurance. Additionally, such lender's title insurance policy
affirmatively insures ingress and egress, and against encroachments by or
upon the Mortgaged Property or any interest therein. The title policy does
not contain any special exceptions (other than the standard exclusions)
for zoning and uses and has been marked to delete the standard survey
exceptions or to replace the standard survey exception with a specific
survey reading. Acoustic, its successor and assigns, are the sole insureds
of such lender's title insurance policy, and such lender's title insurance
policy is valid and remains in full force and effect and will be in force
and effect upon the consummation of the transactions contemplated by this
Agreement. No claims have been made under such lender's title insurance
policy, and no prior holder of the related Mortgage, including Acoustic,
has done, by act or omission, anything which would impair the coverage of
such lender's title insurance policy, including without limitation, no
unlawful fee, commission, kickback or other unlawful compensation or value
of any kind has been or will be received, retained or realized by any
attorney, firm or other person or entity, and no such unlawful items have
been received, retained or realized by Acoustic;
(p) No Defaults. Other than payments due but not yet 30 days or more
delinquent, to the best of the Seller's knowledge, there is no default,
breach, violation or event which would permit acceleration existing under
the Mortgage or the Mortgage Note and no event which, with the passage of
time or with notice and the expiration of any grace or cure period, would
constitute a default, breach, violation or event which would permit
acceleration, and neither Acoustic nor any of its affiliates nor any of
their respective predecessors, have waived any default, breach, violation
or event which would permit acceleration. With respect to each Second Lien
Mortgage Loan, (i) the prior mortgage is in full force and effect, (ii)
there is no default, breach, violation or event of acceleration existing
under such prior mortgage or the related mortgage note, (iii) as of the
Closing Date, no event which, with the passage of time or with notice and
the expiration of any grace or cure period, would constitute a default,
breach, violation or event of acceleration thereunder, and either (A) the
prior mortgage contains a provision which allows or (B) applicable law
requires, the mortgagee under the Second Lien Mortgage Loan to receive
notice of, and affords such mortgagee an opportunity to cure any default
by payment in full or otherwise under the prior mortgage;
(q) No Mechanics' Liens. There are no mechanics' or similar liens or
claims which have been filed for work, labor or material (and no rights
are outstanding that under law could give rise to such liens) affecting
the related Mortgaged Property which are or may be liens prior to, or
equal or coordinate with, the lien of the related Mortgage; provided,
however, that this warranty shall be deemed not to have been made at the
time of the initial issuance of the Certificates if a title policy
affording, in substance, the same protection afforded by this warranty is
furnished to the Trustee by the Seller;
(r) Location of Improvements; No Encroachments. All improvements
which were considered in determining the Appraised Value of the Mortgaged
Property lay wholly within the boundaries and building restriction lines
of the Mortgaged Property, and no improvements on adjoining properties
encroach upon the Mortgaged Property. To the best of the Seller's
knowledge, no improvement located on or being part of the Mortgaged
Property is in violation of any applicable zoning law or regulation;
(s) Origination; Payment Terms. The Acoustic Mortgage Loan was
originated by a mortgagee approved by the Secretary of Housing and Urban
Development pursuant to Sections 203 and 211 of the National Housing Act,
a savings and loan association, a savings bank, a commercial bank, credit
union, insurance company or other similar institution which is supervised
and examined by a federal or state authority. The documents, instruments
and agreements submitted for loan underwriting were not falsified and
contain no untrue statement of material fact or omit to state a material
fact required to be stated therein or necessary to make the information
and statements therein not misleading. No Acoustic Mortgage Loan contains
terms or provisions which would result in negative amortization. Principal
payments on the Acoustic Mortgage Loan commenced no more than sixty days
after funds were disbursed in connection with the Acoustic Mortgage Loan.
The Mortgage Interest Rate as well as the Lifetime Rate Cap and the
Periodic Cap, are as set forth on the Acoustic Mortgage Loan Schedule.
Except with respect to Interest Only Mortgage Loans, the Mortgage Note is
payable in equal monthly installments of principal and interest sufficient
to amortize the Acoustic Mortgage Loan fully by the stated maturity date,
over an original term of not more than forty years from commencement of
amortization with interest calculated and payable in arrears. All
installments of interest with respect to Adjustable Rate Mortgage Loans
are subject to change due to the adjustments to the Mortgage Interest Rate
on each Interest Rate Adjustment Date. The Acoustic Mortgage Loan is
payable on the first day of each month. No Acoustic Mortgage Loan is a
balloon mortgage loan that has an original stated maturity of less than
seven (7) years;
(t) Customary Provisions. The Mortgage contains customary and
enforceable provisions such as to render the rights and remedies of the
holder thereof adequate for the realization against the Mortgaged Property
of the benefits of the security provided thereby, including, (i) in the
case of a Mortgage designated as a deed of trust, by trustee's sale, and
(ii) otherwise by judicial foreclosure. Upon default by a Mortgagor on an
Acoustic Mortgage Loan and foreclosure on, or trustee's sale of, the
Mortgaged Property pursuant to the proper procedures, the holder of the
Acoustic Mortgage Loan will be able to deliver good and merchantable title
to the Mortgaged Property. There is no homestead or other exemption
available to a Mortgagor which would interfere with the right to sell the
Mortgaged Property at a trustee's sale or the right to foreclose the
Mortgage, subject to applicable federal and state laws and judicial
precedent with respect to bankruptcy and right of redemption or similar
law;
(u) Conformance with Underwriting Guidelines. The Acoustic Mortgage
Loan was underwritten in accordance with the Underwriting Guidelines (a
copy of which is attached as Exhibit H to the Acoustic Purchase
Agreement). The Mortgage Note and Mortgage are on forms acceptable to
Freddie Mac or Xxxxxx Xxx and Acoustic has not made any representations to
a Mortgagor that are inconsistent with the mortgage instruments used;
(v) Occupancy of the Mortgaged Property. To the best of the Seller's
knowledge, the Mortgaged Property is lawfully occupied under applicable
law. All inspections, licenses and certificates required to be made or
issued with respect to all occupied portions of the Mortgaged Property
and, with respect to the use and occupancy of the same, including but not
limited to certificates of occupancy and fire underwriting certificates,
have been made or obtained from the appropriate authorities;
(w) Mortgaged Property Undamaged; No Condemnation Proceedings. There
is no proceeding pending or, to the Seller's knowledge, threatened for the
total or partial condemnation of the Mortgaged Property. The Mortgaged
Property is undamaged by waste, fire, earthquake or earth movement,
windstorm, flood, hurricane, tornado or other casualty so as to affect
adversely the value of the Mortgaged Property as security for the Acoustic
Mortgage Loan or the use for which the premises were intended and each
Mortgaged Property is in good repair. There have not been any condemnation
proceedings with respect to the Mortgaged Property and the Seller has no
knowledge of any such proceedings in the future;
(x) Prior Servicing. Each Acoustic Mortgage Loan has been serviced
in strict compliance with Accepted Servicing Practices;
(y) Credit Information. As to each consumer report (as defined in
the Fair Credit Reporting Act, Public Law 91-508) or other credit
information furnished by Acoustic to GSMC, that Acoustic has full right
and authority and is not precluded by law or contract from furnishing such
information to GSMC and GSMC is not precluded by the terms of the Mortgage
Loan Documents from furnishing the same to any subsequent or prospective
purchaser of such Mortgage. Acoustic shall hold GSMC harmless from any and
all damages, losses, costs and expenses (including attorney's fees)
arising from disclosure of credit information in connection with GSMC's
secondary marketing operations and the purchase and sale of mortgages.
Acoustic has in its capacity as servicer, for each Acoustic Mortgage Loan,
fully furnished, in accordance with the Fair Credit Reporting Act and its
implementing regulations, accurate and complete information (e.g.,
favorable and unfavorable) on its borrower credit files to Equifax,
Experian and Trans Union Credit Information Company (three of the credit
repositories), on a monthly basis. The Servicer will transmit full-file
credit reporting data for each Acoustic Mortgage Loan pursuant to Xxxxxx
Xxx Guide Announcement 95-19 and that for each Acoustic Mortgage Loan,
Servicer agrees it shall report one of the following statuses each month
as follows: new origination, current, delinquent (30-, 60-, 90-days,
etc.), foreclosed, or charged-off.
(z) Leaseholds. If the Acoustic Mortgage Loan is secured by a
long-term residential lease, (1) the lessor under the lease holds a fee
simple interest in the land; (2) the terms of such lease expressly permit
the mortgaging of the leasehold estate, the assignment of the lease
without the lessor's consent and the acquisition by the holder of the
Mortgage of the rights of the lessee upon foreclosure or assignment in
lieu of foreclosure or provide the holder of the Mortgage with
substantially similar protections; (3) the terms of such lease do not (a)
allow the termination thereof upon the lessee's default without the holder
of the Mortgage being entitled to receive written notice of, and
opportunity to cure, such default, (b) allow the termination of the lease
in the event of damage or destruction as long as the Mortgage is in
existence, (c) prohibit the holder of the Mortgage from being insured (or
receiving proceeds of insurance) under the hazard insurance policy or
policies relating to the Mortgaged Property or (d) permit any increase in
rent other than pre-established increases set forth in the lease; (4) the
original term of such lease is not less than 15 years; (5) the term of
such lease does not terminate earlier than five years after the maturity
date of the Mortgage Note; and (6) the Mortgaged Property is located in a
jurisdiction in which the use of leasehold estates in transferring
ownership in residential properties is a widely accepted practice;
(aa) Prepayment Penalty. The Acoustic Mortgage Loan is subject to a
prepayment penalty as provided in the related Mortgage Note except as set
forth on the related Mortgage Loan Schedule. With respect to each Acoustic
Mortgage Loan that has a prepayment penalty feature, each such prepayment
penalty is enforceable and will be enforced by Acoustic for the benefit of
GSMC, and each prepayment penalty is permitted pursuant to federal, state
and local law. Each such prepayment penalty is in an amount no more than
the maximum amount permitted under applicable law and no such prepayment
penalty may be imposed for a term in excess of five (5) years with respect
to Acoustic Mortgage Loans originated prior to October, 1, 2002. With
respect to Acoustic Mortgage Loans originated on or after October 1, 2002,
the duration of the prepayment period shall not exceed three (3) years
from the date of the Mortgage Note unless the Acoustic Mortgage Loan was
modified to reduce the prepayment period to no more than three years from
the date of the note and the Mortgagor was notified in writing of such
reduction in prepayment period. With respect to any Acoustic Mortgage Loan
that contains a provision permitting imposition of a premium upon a
prepayment prior to maturity: (i) prior to the loan's origination, the
Mortgagor agreed to such premium in exchange for a monetary benefit,
including but not limited to a rate or fee reduction, (ii) prior to the
loan's origination, the Mortgagor was offered the option of obtaining a
mortgage loan that did not require payment of such a premium, (iii) the
prepayment premium is disclosed to the Mortgagor in the loan documents
pursuant to applicable state, local and federal law, and (iv)
notwithstanding any state, local or federal law to the contrary, the
Servicer shall not impose such prepayment premium in any instance when the
mortgage debt is accelerated as the result of the Mortgagor's default in
making the loan payments;
(bb) Predatory Lending Regulations. No Acoustic Mortgage Loan is a
High Cost Loan or Covered Loan, as applicable, and no Acoustic Mortgage
Loan originated on or after October 1, 2002 through March 6, 2003 is
governed by the Georgia Fair Lending Act. No Acoustic Mortgage Loan is
covered by the Home Ownership and Equity Protection Act of 1994 and no
Acoustic Mortgage Loan is in violation of any comparable state or local
law. The Mortgaged Property is not located in a jurisdiction where a
breach of this representation with respect to the related Acoustic
Mortgage Loan may result in additional assignee liability to GSMC, as
determined by GSMC in its reasonable discretion. No predatory or deceptive
lending practices, including, without limitation, the extension of credit
without regard to the ability of the Mortgagor to repay and the extension
of credit which has no apparent benefit to the Mortgagor, were employed in
the origination of the Acoustic Mortgage Loan. Each Acoustic Mortgage Loan
is in compliance with the anti-predatory lending eligibility for purchase
requirements of Fannie Mae's Selling Guide;
(cc) Single-premium Credit Life Insurance Policy. In connection with
the origination of any Acoustic Mortgage Loan, no proceeds from any
Acoustic Mortgage Loan were used to finance or acquire a single-premium
credit life insurance policy. No Mortgagor was required to purchase any
single premium credit insurance policy (e.g., life, disability, accident,
unemployment, or health insurance product) or debt cancellation agreement
as a condition of obtaining the extension of credit. No Mortgagor obtained
a prepaid single premium credit insurance policy (e.g., life, disability,
accident, unemployment, mortgage, or health insurance) in connection with
the origination of the Acoustic Mortgage Loan; No proceeds from any
Acoustic Mortgage Loan were used to purchase single premium credit
insurance policies or debt cancellation agreements as part of the
origination of, or as a condition to closing, such Acoustic Mortgage Loan;
(dd) Qualified Mortgage. The Acoustic Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code;
(ee) LTV. No Acoustic Mortgage Loan has a LTV greater than 100%;
(ff) Arbitration. With respect to any Acoustic Mortgage Loan
originated on or after August 1, 2004, neither the related Mortgage nor
the related Mortgage Note requires the Mortgagor to submit to arbitration
to resolve any dispute arising out of or relating in any way to the
Acoustic Mortgage Loan transaction; and
(gg) Delivery to the applicable Custodian. With respect to each
Acoustic Mortgage Loan, GSMC is in possession of a complete Mortgage File
except for the documents which have been delivered to the applicable
Custodian or which have been submitted for recording and not yet returned.
EXHIBIT II
Representations and Warranties Regarding the Conduit Mortgage Loans
(a) Conduit Mortgage Loans as Described. The information set forth in the
Conduit Mortgage Loan Schedule with respect to the Conduit Mortgage Loans is
complete, true and accurate;
(b) Criteria for Eligible Loans. Unless otherwise agreed upon, the
Mortgage Loan has been generally underwritten in accordance with, and meets the
parameters of, the underwriting requirements set forth in the Underwriting Guide
or the Seller's underwriting guidelines. No Conduit Mortgage Loan is (i) covered
by the provisions of the Homeownership and Equity Protection Act of 1994 or (ii)
in violation of, or classified as a "high cost", "threshold", "covered" or
"predatory" loan under, any other applicable state, federal or local law (or a
similarly classified loan using different terminology under a law imposing
heightened regulatory scrutiny or additional legal liability for residential
mortgage loans having high interest rates, points and/or fees). No Conduit
Mortgage Loan is subject to any rights of rescission, counterclaims or defenses;
(c) Compliance with Applicable Laws: Each Mortgage Loan has been
originated in compliance with all applicable local, state and federal laws and
regulations including, without limitation, usury and predatory lending laws;
(d) Origination/Doing Business: The Conduit Mortgage Loan was originated
by a mortgagee approved by the Secretary of Housing and Urban Development
pursuant to Sections 203 and 211 of the National Housing Act, a savings and loan
association, a savings bank, a commercial bank, credit union, insurance company
or other similar institution which is supervised and examined by a federal or
state authority. All parties who have had any interest in the Conduit Mortgage
Loan, whether as a mortgagee, assignee, pledgee or otherwise are (or during the
period in which they held and disposed of such interest, were) (a) in compliance
with any and all applicable licensing requirements of the laws of the state
where the Mortgaged Property is located, and (b) either (i) organized under the
laws of such state, or (ii) qualified to do business in such state, or (iii) a
federal savings and loan association, a savings bank or a national bank having a
principal office in such state, or (c) not doing business in such state;
(e) Validity of Loan Documents: The Mortgage Note and the Mortgage and any
other agreement executed by a Mortgagor in connection with a Mortgage Loan are
genuine and each is the legal, valid, and binding obligation of its maker. Each
is enforceable according with its terms (including without limitation, any
provisions relating to prepayment charges or penalties), except as limited by
bankruptcy, insolvency or other similar laws generally affecting the enforcement
of creditor's rights. To the best of the Seller's knowledge, all parties
associated with the Mortgage Note, the Mortgage and any related document had
legal capacity to enter into the Mortgage Loan and to execute and deliver said
documents and said documents have been duly and properly executed by all such
related parties;
(f) No Defenses: The Mortgage Loan is not subject to any right of
rescission, set-off, counterclaim or defense, including without limitation the
defense of usury. The operation of any of the terms of the Mortgage Note or the
Mortgage, or the exercise of any right thereunder, will not render the Mortgage
Note or the Mortgage unenforceable, in whole or in part or subject to any right
of rescission, set-off, counterclaim or defense, including without limitation,
the defense of usury. In addition, no such right of rescission, set-off,
counterclaim or defense has been asserted with respect to the Mortgage Note or
the Mortgage. To the best of the Seller's knowledge, no Mortgagor was a debtor
in any local, state or federal bankruptcy or insolvency proceeding at the time
the related Mortgage Loan was originated or as of the related origination date;
(g) No Defaults: Other than payments due but not yet 30 days or more
delinquent, to the best of the Seller's knowledge, there is no default, breach,
violation or event which would permit acceleration existing under the Mortgage
or the Mortgage Note and no event which, with the passage of time or with notice
and the expiration of any grace or cure period, would constitute a default,
breach, violation or event which would permit acceleration. No such default,
breach, violation or event which would permit acceleration has been waived by
the Seller or by any other entity involved in originating the Conduit Mortgage
Loan. With respect to each second lien loan, (i) the prior mortgage is in full
force and effect, (ii) there is no default, breach, violation or event which
would permit acceleration existing under such prior mortgage or the related
mortgage note, (iii) there is no event which, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute a
default, breach, violation or event which would permit acceleration thereunder,
and either (A) the prior mortgage contains a provision which allows or (B)
applicable law requires, the mortgagee under the second lien loan to receive
notice of, and affords such mortgagee an opportunity to cure any default by
payment in full or otherwise under the prior mortgage;
(h) Original Terms Unmodified: The terms of the Mortgage Note and the
Mortgage have not been impaired, waived, altered or modified in any respect from
the date of origination, except by written instrument. Any such instrument was
recorded in the applicable public recording office if necessary to protect the
interests of the Purchaser in the related Conduit Mortgage Loan. In addition,
the changes to the terms have been delivered to the Purchaser or its designee
and reflected on the Conduit Loan Schedule. No Conduit Mortgage Loan has been
modified so as to restructure the payment obligations or extend the maturity
date of the Conduit Mortgage Loan. The substance of any such waiver, alteration
or modification has been approved by the title insurer to the extent required by
the title policy. No Mortgagor has been released, in whole or in part, except in
connection with an assumption agreement, approved by the issuer of the title
insurance, to the extent required by the policy, and which assumption agreement
is part of the Custodial File delivered to the Purchaser or its designee and the
terms of which are reflected in the Conduit Loan Schedule;
(i) No Satisfaction of Mortgage: The Mortgage has not been satisfied,
cancelled, subordinated or rescinded, in whole or in part and the Mortgaged
Property has not been released from the lien of the Mortgage, in whole or in
part, nor has any instrument been executed that would effect any such
satisfaction, cancellation, subordination, or rescission. The Seller has not
waived the performance by the Mortgagor of any action, if the Mortgagor's
failure to perform such action would cause the Mortgage Loan to be in default,
nor has the Seller waived any default resulting from any action or inaction by
the Mortgagor;
(j) Customary Provisions: The Mortgage and related Mortgage Note contain
customary and enforceable provisions such as to render the rights and remedies
of the holder thereof adequate for the realization against the Mortgaged
Property of the benefits of the security provided thereby, including: by
trustee's sale, in the case of a Mortgage designated as a deed of trust; and by
judicial foreclosure. There are no homestead or other exemptions or other rights
or interests available to the Mortgagor that would interfere with the right to
sell the Mortgaged Property at a trustee's sale or the right to foreclose the
Mortgage, subject to applicable federal, state and local laws and judicial
precedent with respect to bankruptcy and right of redemption or similar law;
(k) Full Disbursement of Loan Proceeds: Each Mortgage Loan has been closed
and the proceeds of the Mortgage Loan have been fully disbursed. There is no
obligation for the Mortgagee to advance additional funds and any and all
requirements to complete any on-site or off-site improvement have been complied
with as well as any disbursements of escrow funds;
(l) Ownership: The Seller is the sole owner of record and holder of the
Mortgage Loan and the indebtedness evidenced by each Mortgage Note. The Mortgage
Loan is not assigned or pledged other than for normal warehouse arrangements or
other warehouse arrangements previously disclosed to the Purchaser, and the
Seller has good, indefeasible and marketable title thereto, and has full right
to transfer and sell the Mortgage Loan to the Purchaser free and clear of any
encumbrance, equity, participation interest, lien, pledge, charge, claim or
security interest, and has full right and authority subject to no interest or
participation of, or agreement with, any other party, to sell and assign each
Mortgage Loan pursuant to the underlying purchase documents, as applicable;
(m) Improvements: All the improvements that were considered in determining
the appraised value of the Mortgaged Property lie wholly within its boundaries
and the building restriction lines of the Mortgaged Property. Otherwise, the
title insurance policy insures against loss or damage by reason of any
violation, variation, encroachment or adverse circumstance that either is
disclosed or would have been disclosed by an accurate survey. No improvements to
adjoining properties encroach upon the Mortgaged Property in any respect so as
to affect the value or marketability of the Mortgaged Property. No improvement
located on, or being part of, the Mortgaged Property is in violation of any
applicable zoning law or regulation;
(n) Proper Servicing: The Conduit Mortgage Loan has been serviced by the
Seller (or a servicer or subservicer on its behalf) and any predecessor servicer
in accordance with Accepted Servicing Practices, applicable laws and regulations
and have been in all respects legal and proper and prudent in the mortgage
origination and servicing business;
(o) All Payments Made: Other than with respect to payments not yet 30 days
delinquent, no Conduit Mortgage Loan is 30 or more days delinquent on the
Closing Date, nor has any Conduit Mortgage Loan been delinquent since its
origination date. The Seller has not advanced funds, or induced, solicited or
knowingly received any advance of funds, directly or indirectly, from a party
other than the owner of the related Mortgaged Property for the payment of any
amount required by the Mortgage Note or Mortgage, except for interest accruing
from the date of the Mortgage Note or date of disbursement of the Conduit
Mortgage Loan proceeds, whichever is earlier, to the date which precedes by one
month the due date of the first installment of principal and interest;
(p) Title Insurance Policy: Each Conduit Mortgage Loan is covered by an
ALTA lender's title insurance policy, or with respect to any Conduit Mortgage
Loan for which the related Mortgaged Property is located in California, a CLTA
lender's title insurance policy or other generally acceptable form of policy or
insurance acceptable to Xxxxxx Xxx or Freddie Mac. The title insurance policy:
(1) is issued by a title insurer who is qualified to do business in the
jurisdiction where the Mortgaged Property is located;
(2) insures the Seller, its successors and assigns, as to the first or
second priority lien of the Mortgage in the original principal
amount of the Mortgage Loan;
(3) insures against any loss by reason of the invalidity or
unenforceability of the lien resulting from the provisions of the
Mortgage providing for adjustment in the interest rate and monthly
payment for any adjustable rate Mortgage Loan;
(4) affirmatively insures ingress and egress to and from the Mortgaged
Property;
(5) insures against encroachments by or upon the Mortgaged Property or
any interest therein;
(6) names the Seller, its successors and assigns, as the sole insured of
the title insurance policy;
(7) is valid and remains in full force and effect; and
(8) does not contain any special exceptions (other than standard
exclusions) for zoning and uses and has been marked to delete the
standard survey exceptions or to replace the standard exceptions
with a specific survey reading;
In addition, no claims are pending under such lender's title insurance policy,
and no prior holder of the related Mortgage, including the Seller, has done, by
act or omission, anything that would impair the coverage of such policy;
(q) Fire, Hazard and Flood Insurance: All buildings and other improvements
on the Mortgaged Property are insured. The buildings and other improvements are
insured against loss by fire, hazards of extended coverage and other hazards. If
the Mortgaged Property is in an area identified on a Flood Hazard Map or Flood
Insurance Rate Map issued by the Federal Emergency Management Agency as having
special flood hazards, the property must have a flood insurance policy in
effect. The flood insurance policy meets the requirements of the current
guidelines of the Federal Insurance Administration. All such insurance policies
contain a standard Mortgagee clause naming the Seller, its successors and
assigns as Mortgagee and all premiums due have been paid. Each Mortgage
obligates the Mortgagor to maintain all such insurance at the Mortgagor's cost
and expense. If the Mortgagor fails to maintain such insurance, then the holder
of the Mortgage is authorized to obtain such insurance and to seek reimbursement
from the Mortgagor;
(r) Mortgaged Property Undamaged; No Condemnation Proceedings: There is no
proceeding pending or, to the Seller's knowledge, threatened for the total or
partial condemnation of the Mortgaged Property. The Mortgaged Property is
undamaged by waste, fire, earthquake or earth movement, windstorm, flood,
tornado or other casualty so as to affect adversely the value of the Mortgaged
Property as security for the Mortgage Loan or the use for which the premises
were intended;
(s) No Mechanics' Liens: There are no mechanics' or similar liens or
claims which have been filed for work, labor or material (and no rights are
outstanding that under law could give rise to such liens) affecting the related
Mortgaged Property which are or may be liens prior to, or equal or coordinate
with, the lien of the related Mortgage; provided, however, that this warranty
shall be deemed not to have been made at the time of the initial issuance of the
Certificates if a title policy affording, in substance, the same protection
afforded by this warranty is furnished to the Trustee by the Seller;
(t) Single-premium Credit Life Insurance: In connection with the
origination of any Mortgage Loan, no proceeds from any Mortgage Loan were used
to finance a single-premium credit life insurance policy;
(u) Valid First and Second Lien: Each Mortgage is a valid, enforceable and
perfected first lien, with respect to first lien loans, or second lien, with
respect to second lien Conduit Mortgage Loans, on real estate constituting the
Mortgaged Property, including all buildings and improvements on the Mortgaged
Property and all installations and mechanical, electrical, plumbing, heating and
air conditioning systems located in or annexed to such buildings, and all
additions, alterations and replacements made at any time, with respect to the
foregoing. The lien of the Mortgage is subject only to: with respect to second
lien loans, the lien of the first mortgage on the Mortgaged Property; the lien
of current real estate property taxes and assessments not yet due and payable;
covenants, conditions and restrictions, rights of way, easements and other
matters of the public record as of the date of recording acceptable to prudent
mortgage lending institutions generally and specifically referred to in the
lender's title insurance policy delivered to the originator of the Mortgage Loan
and (a) specifically referred to or otherwise considered in the appraisal made
for the originator of the Conduit Mortgage Loan or (b) which do not adversely
affect the appraised value of the Mortgaged Property set forth in such
appraisal; and other matters to which like properties are commonly subject which
do not materially interfere with the benefits of the security intended to be
provided by the Mortgage or the use, enjoyment, value or marketability of the
related Mortgaged Property. Any security agreement, chattel mortgage or
equivalent document related to and delivered in connection with the Conduit
Mortgage Loan establishes and creates a valid, subsisting, enforceable and
perfected (A) first lien and first priority security interest with respect to
each first lien loan, or (B) second lien and second priority security interest
with respect to each second lien loan, in either case, on the property described
therein and Seller has full right to sell and assign the same to the Seller;
(v) No Delinquent Amounts: There are no delinquent amounts that affect the
Mortgaged Property including, but not limited to: real estate property taxes;
ground rents; water charges; sewer and municipal charges; insurance premiums;
leasehold payments; and governmental assessments;
(w) Payment Terms: Principal payments on each Conduit Mortgage Loan
commenced no more than sixty days after funds were disbursed in connection with
such Conduit Mortgage Loan. The Mortgage Interest Rate as well as, with respect
to Adjustable Rate Mortgage Loan, the lifetime rate cap and the periodic cap are
as set forth on the Conduit Mortgage Loan Schedule. Except during the interest
only period for any Interest Only Mortgage Loan and with respect to any balloon
Conduit Mortgage Loan, the Mortgage Note is payable in equal monthly
installments of principal and interest, which installments of interest, with
respect to adjustable-rate loans, are subject to change due to the adjustments
to the Mortgage Interest Rate on each adjustment date, as set forth in the
related Mortgage Note, with interest calculated and payable in arrears,
sufficient to fully amortize the Conduit Mortgage Loan by the stated maturity
date, over an original term of not more than thirty years from commencement of
amortization. No Conduit Mortgage Loan contains a provision allowing the
Mortgagor to convert the mortgage interest rate from an adjustable interest rate
to a fixed interest rate. No Conduit Mortgage Loan contains terms or provisions
which would result in negative amortization;
(x) Prepayment Premiums: Except as set forth in the Conduit Mortgage Loan
Schedule, each Conduit Mortgage Loan is subject to a Prepayment Premium except
as set forth on the Conduit Mortgage Loan Schedule. With respect to each Conduit
Mortgage Loan that has a Prepayment Premium feature, each such Prepayment
Premium is enforceable, and each Prepayment Premium is permitted pursuant to
federal, state and local law. Each such Prepayment Premium is in an amount equal
to or less than the maximum amount permitted under applicable law; however, no
such Prepayment Premium may be imposed for a term in excess of three (3) years
(or five years with respect to Conduit Mortgage Loans originated prior to
October 1, 2002);
(y) Location and Type of Mortgaged Property: The Mortgaged Property is
located in the state identified in the Conduit Mortgage Loan Schedule and
consists of real property with a detached single family residence erected
thereon, or a two- to four-family dwelling, or an individual condominium unit in
a condominium project, or an individual unit in a planned unit development;
(z) Occupancy of Mortgaged Property: To the best of the Seller's
knowledge, the Mortgaged Property is lawfully occupied under applicable law. All
inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of the Mortgaged Property and, with respect to
the use and occupancy of the same, including but not limited to certificates of
occupancy and fire underwriting certificates, have been made or obtained from
the appropriate authorities;
(aa) Leaseholds: If the Conduit Mortgage Loan is secured by a long-term
residential lease, (1) the lessor under the lease holds a fee simple interest in
the land; (2) the terms of such lease expressly permit the mortgaging of the
leasehold estate, the assignment of the lease without the lessor's consent and
the acquisition by the holder of the Mortgage of the rights of the lessee upon
foreclosure or assignment in lieu of foreclosure or provide the holder of the
Mortgage with substantially similar protections; (3) the terms of such lease do
not (a) allow the termination thereof upon the lessee's default without the
holder of the Mortgage being entitled to receive written notice of, and
opportunity to cure, such default, (b) allow the termination of the lease in the
event of damage or destruction as long as the Mortgage is in existence, (c)
prohibit the holder of the Mortgage from being insured (or receiving proceeds of
insurance) under the hazard insurance policy or policies relating to the
Mortgaged Property or (d) permit any increase in rent other than pre-established
increases set forth in the lease; (4) the original term of such lease is not
less than fifteen (15) years; (5) the term of such lease to extend at least five
(5) years beyond the term of the Mortgage unless such lease contains a provision
for future vesting of land to the Mortgagor or homeowner's association after the
maturity date of the Mortgage Note; and (6) the Mortgaged Property is located in
a jurisdiction in which the use of leasehold estates in transferring ownership
in residential properties is a widely accepted practice;
(bb) Credit Information: As to each consumer report (as defined in the
Fair Credit Reporting Act, Public Law 91-508) or other credit information
furnished by the Seller to the Purchaser, the Seller has full right and
authority and is not precluded by law or contract from furnishing such
information to the Purchaser and the Purchaser is not precluded by the terms of
the Mortgage Loan Documents from furnishing the same to any subsequent or
prospective purchaser of such Mortgage. The Seller has in its capacity as
servicer, for each Mortgage Loan, fully furnished, in accordance with the Fair
Credit Reporting Act and its implementing regulations, accurate and complete
information (i.e., favorable and unfavorable) on its borrower credit files to
Equifax, Experian Credit Information Services, Inc. and Trans Union Credit
Information Company (three of the credit repositories), on a monthly basis;
(cc) Predatory Lending Regulations: No Conduit Mortgage Loan is a High
Cost or Covered Loan, as applicable. No Conduit Mortgage Loan originated on or
after October 1, 2002 through March 6, 2003 is governed by the Georgia Fair
Lending Act.
(dd) Arbitration: With respect to any Conduit Mortgage Loan originated
after August 1, 2004, no Mortgagor agreed to submit to arbitration to resolve
any dispute arising out of or relating in any way to the Conduit Mortgage Loan
transaction;
(ee) LTV. No Mortgage Loan has a LTV greater than 100%;
(ff) Qualified Mortgage. The Conduit Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code; and
(gg) Delivery to the Custodian. With respect to each Conduit Mortgage
Loan, GSMC is in possession of a complete Mortgage File except for the documents
which have been delivered to the Custodian or which have been submitted for
recording and not yet returned.
EXHIBIT III
Exceptions to Representations and Warranties Regarding the Mortgage Loans
None.
SCHEDULE I
Acoustic Mortgage Loan Schedule
(Available Upon Request to Depositor)
SCHEDULE II
Conduit Mortgage Loan Schedule
(Available Upon Request to Depositor)
EXHIBIT T
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Securities Administrator],
[the Master Servicer] [each Custodian], [each Servicer], [each Subservicer] and
[each Subcontractor] shall address, at a minimum, the criteria identified as
below as "Applicable Servicing Criteria." The responsibilities set forth herein
may be amended without amending the Pooling and Servicing Agreement upon mutual
agreement among the applicable party requesting such amendment and the other
parties to the Agreement.
SERVICING CRITERIA APPLICABLE SERVICING CRITERIA
---------------------------------------------------------------------------------------------------------------------------
Reference Criteria
---------------------------------------------------------------------------------------------------------------------------
General Servicing Considerations
---------------------------------------------------------------------------------------------------------------------------
Policies and procedures are instituted to monitor any performance
or other triggers and events of default in accordance with the Securities
1122(d)(1)(i) transaction agreements. Administrator/Servicer
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 Securities
1122(d)(1)(ii) activities. Administrator/Servicer
Any requirements in the transaction agreements to maintain a N/A
1122(d)(1)(iii) back-up servicer for the mortgage loans are maintained.
A fidelity bond and errors and omissions policy is in effect
on the party participating in the servicing function Servicer/Master Servicer
throughout the reporting period in the amount of coverage
required by and otherwise in accordance with the terms of the
1122(d)(1)(iv) transaction agreements.
Cash Collection and Administration
Payments on mortgage loans are deposited into the
appropriate custodial bank accounts and related bank Servicer/Master Servicer
clearing accounts no more than two business days following
receipt, or such other number of days specified in the transaction
1122(d)(2)(i) agreements.
Disbursements made via wire transfer on behalf of an obligor or Servicer/Securities
1122(d)(2)(ii) to an investor are made only by authorized personnel. Administrator/Master Servicer
Advances of funds or guarantees regarding collections, cash
flows or distributions, and any interest or other fees charged for Servicer/Master Servicer
such advances, are made, reviewed and approved as specified
1122(d)(2)(iii) in the transaction agreements.
The related accounts for the transaction, such as cash reserve Servicer/Securities
accounts or accounts established as a form of Administrator/Master Servicer
overcollateralization, are separately maintained (e.g.,
with respect to commingling of cash) as set forth in the
1122(d)(2)(iv) transaction agreements.
Each custodial account is maintained at a federally insured
depository institution as set forth in the transaction Servicer/Securities
agreements. For purposes of this criterion, "federally Administrator/Master Servicer
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)
1122(d)(2)(v) of the Securities Exchange Act.
Unissued checks are safeguarded so as to prevent unauthorized Servicer/Securities
1122(d)(2)(vi) access. Administrator/Master Servicer
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 Servicer/Securities
cutoff date, or such other number of days specified in the Administrator/Master Servicer
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
1122(d)(2)(vii) agreements.
Investor Remittances and Reporting
Reports to investors, including those to be filed with the
Commission, are maintained in accordance with the
transaction agreements and applicable Commission Securities
requirements. Specifically, such reports (A) are prepared Administrator/Servicer/Master
in accordance with timeframes and other terms set forth in Servicer
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 mortgage
1122(d)(3)(i) loans serviced by the Servicer.
Amounts due to investors are allocated and remitted in Securities
accordance with timeframes, distribution priority and Administrator/Servicer/Master
1122(d)(3)(ii) other terms set forth in the transaction agreements. Servicer
Disbursements made to an investor are posted within two business Securities
days to the Servicer's investor records, or such other number of Administrator/Servicer/Master
1122(d)(3)(iii) days specified in the transaction agreements. Servicer
Amounts remitted to investors per the investor reports agree with Securities
cancelled checks, or other form of payment, or custodial bank Administrator/Servicer/Master
1122(d)(3)(iv) statements. Servicer
Pool Asset Administration
Collateral or security on mortgage loans is maintained as required Custodian/ Securities
1122(d)(4)(i) by the transaction agreements or related mortgage loan documents. Administrator/Servicer
Mortgage loan and related documents are safeguarded as required by Custodian/Securities
1122(d)(4)(ii) the transaction agreements Administrator/Servicer
Any additions, removals or substitutions to the asset pool are
made, reviewed and approved in accordance with any conditions or
1122(d)(4)(iii) requirements in the transaction agreements. Servicer
Payments on mortgage loans, including any payoffs, made in
accordance with the related mortgage loan 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 mortgage Servicer
1122(d)(4)(iv) loan documents.
The Servicer's records regarding the mortgage loans agree
with the Servicer's records with respect to an obligor's
1122(d)(4)(v) unpaid principal balance. Servicer
Changes with respect to the terms or status of an obligor's
mortgage loans (e.g., loan modifications or re-agings) are made,
reviewed and approved by authorized personnel in accordance with
1122(d)(4)(vi) the transaction agreements and related pool asset documents. Servicer
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 Servicer
1122(d)(4)(vii) established by the transaction agreements.
Records documenting collection efforts are maintained during the
period a mortgage loan 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 mortgage loans including, for example, phone calls,
letters and payment rescheduling plans in cases where delinquency Servicer
1122(d)(4)(viii) is deemed temporary (e.g., illness or unemployment).
Adjustments to interest rates or rates of return for
mortgage loans with variable rates are computed based on
1122(d)(4)(ix) the related mortgage loan documents. Servicer
Regarding any funds held in trust for an obligor (such as escrow
accounts): (A) such funds are analyzed, in accordance with the
obligor's mortgage loan 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 mortgage loan documents and state laws;
and (C) such funds are returned to the obligor within 30 calendar Servicer
days of full repayment of the related mortgage loans, or such other
1122(d)(4)(x) number of days specified in the transaction agreements.
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 Servicer
1122(d)(4)(xi) other number of days specified in the transaction agreements.
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
1122(d)(4)(xii) obligor's error or omission. Servicer
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 days specified in the transaction Servicer
1122(d)(4)(xiii) agreements.
Delinquencies, charge-offs and uncollectible accounts are
recognized and recorded in accordance with the transaction
1122(d)(4)(xiv) agreements. Servicer
Any external enhancement or other support, identified in Item
1114(a)(1) through (3) or Item 1115 of Regulation AB, is maintained Securities Administrator
1122(d)(4)(xv) as set forth in the transaction agreements.
EXHIBIT U
ADDITIONAL FORM 10-D DISCLOSURE
[to be updated]
Item on Form 10-D Party Responsible
----------------------------------------------------------- ----------------------------------------------------------
Item 1: Distribution and Pool Performance Master Servicer/
Information Servicer/
Securities Administrator
Any information required by clauses (i) and (ii) of
the second full paragraph of Section 4.03(a) of
the Pooling and Servicing Agreement
Any information required by Item 1121 which is NOT Depositor
included on the monthly statement
Item 2: Legal Proceedings (i) All parties to the Agreement (as to themselves),
(ii) the Trustee, the Master Servicer, the Securities
per Item 1117 of Regulation AB Administrator and each Servicer (to their respective
actual knowledge) as to the issuing entity, (iii)
the Depositor as to the sponsor, and each Original Loan
Seller or any Regulation AB Item 1100(d)(1) party
Item 3: Sale of Securities and Use of Proceeds Depositor
Item 4: Defaults Upon Senior Securities Securities Administrator
Item 5: Submission of Matters to a Vote of Securities Administrator
Security Holders
Item 6: Significant Obligors of Pool Assets N/A
Item 7: Significant Enhancement Provider Depositor
Information
Item 8: Other Information Any party to the Agreement responsible for disclosure
items on Form 8-K
Item 9: Exhibits Securities Administrator (or other responsible party)
Exhibits required by Item 601 of Regulation Depositor
S-K, such as material agreements
EXHIBIT V
ADDITIONAL FORM 10-K DISCLOSURE
[to be updated]
Item on Form 10-K Party Responsible
------------------------------------------------------- -------------------------------------------------------------
Item 9B: Other Information Any party to the Agreement responsible for disclosure items
on Form 8-K
Item 15: Exhibits, Financial Statement Securities Administrator
Schedules Depositor
Additional Item: (i) All parties to the Agreement (as to themselves), (ii)
the Trustee, the Master Servicer, the Depositor, the Securities
Disclosure per Item 1117 of Regulation AB Administrator and each Servicer (to their respective actual
knowledge) as to the Trust, (iii) the Depositor as to the
sponsor and each Original Loan Seller or any 1100(d)(1) party
Additional Item: (i) All parties to the Agreement as to themselves, (ii) the
Disclosure per Item 1119 of Regulation AB Depositor as to the sponsor, or any derivative provider
Additional Item: N/A
Disclosure per Item 1112(b) of Regulation AB
Additional Item: Depositor
Disclosure per Items 1114(b) and 1115(b) of
Regulation AB
EXHIBIT W
FORM 8-K DISCLOSURE INFORMATION
[to be updated]
Item on Form 8-K Party Responsible
------------------------------------------------------------------ ----------------------------------------------------
Item 1.01- Entry into a Material Definitive Agreement The party to this Agreement entering into such
material definitive agreement
Item 1.02- Termination of a Material Definitive Agreement The party to this Agreement requesting termination
of a material definitive agreement
Item 1.03- Bankruptcy or Receivership (i) All parties to the Agreement (as to
themselves), (ii) the Trustee, the Master Servicer,
the Securities Administrator and each Servicer (to
their respective actual knowledge) as to the Trust,
(iii) the Depositor as to the sponsor and each
Original Loan Seller or any 1100(d)(1) party
Item 2.04- Triggering Events that Accelerate or Increase a Securities Administrator/Depositor
Direct Financial Obligation or an Obligation under an
Off-Balance Sheet Arrangement
Item 3.03- Material Modification to Rights of Security The party requesting such modification
Holders
Item 5.03- Amendments of Articles of Incorporation or Depositor
Bylaws; Change of Fiscal Year
Item 6.01- ABS Informational and Computational Material Depositor
Item 6.02- Change of Servicer, Securities Master Servicer, Servicer, Securities
Administrator or Trustee Administrator, Trustee (as to the Trustee)
Item 6.03- Change in Credit Enhancement or External Support Depositor/ Securities Administrator
Item 6.04- Failure to Make a Required Distribution Securities Administrator
Item 6.05- Securities Act Updating Disclosure Depositor
Item 7.01- Regulation FD Disclosure Depositor
Item 8.01 Depositor
Item 9.01- Financial Statements and Exhibits Responsible party for reporting/disclosing
the financial statement or exhibit
EXHIBIT X
SCHEDULE
to the
MASTER AGREEMENT
dated as of May 26, 2006
between
XXXXXXX XXXXX MITSUI MARINE
DERIVATIVE PRODUCTS, L.P.
a limited partnership organized
under the laws of Delaware
("Party A"),
and
GSAMP Trust 2006-HE3
a trust organized
under the laws of the State of New York
("Party B").
Part 1. Termination Provisions.
(a) "Specified Entity" means in relation to Party A for the purpose of:
Section 5(a)(v), Not Applicable.
Section 5(a)(vi), Not Applicable.
Section 5(a)(vii), Not Applicable.
Section 5(b)(iv), Not Applicable.
and in relation to Party B for the purpose of:
Section 5(a)(v), Not Applicable.
Section 5(a)(vi), Not Applicable.
Section 5(a)(vii), Not Applicable.
Section 5(b)(iv), Not Applicable.
(b) "Specified Transaction" shall have the meaning specified in Section 14
of this Agreement.
(c) The "Breach of Agreement" provisions of Section 5(a)(ii) will not
apply to Party A or Party B.
(d) The "Credit Support Default" provisions of Section 5(a)(iii) will
apply to Party A and will not apply to Party B.
(e) The "Misrepresentation" provisions of Section 5(a)(iv) will not apply
to Party A or Party B.
(f) The "Cross Default" provisions of Section 5(a)(vi) will not apply to
Party A or Party B.
(g) With respect to Party B only, Section 5(a)(vii)(2) is hereby amended
as follows:
"(2) becomes insolvent or is unable to pay its debts (other than
payments due to holders of its subordinate certificates) or fails or
admits in writing its inability generally to pay its debts (other
than payments to holders of its subordinate certificates) as they
become due"
(h) The "Merger without Assumption" provisions of Section 5(a)(viii)
will apply to Party A and will not apply to Party B.
(i) The "Credit Event Upon Merger" provisions of Section 5(b)(iv) will
not apply to Party A or Party B.
(j) The "Automatic Early Termination" provisions of Section 6(a) will
not apply to Party A or Party B.
(k) Payments on Early Termination. For the purpose of Section 6(e):
(i) Market Quotation will apply.
(ii) The Second Method will apply.
(l) "Termination Currency" means U.S. Dollars.
(m) The "Additional Termination Event" provisions of Section 5(b)(v)
will apply as set forth in Part 5(n) hereof.
(n) The "Default under Specified Transaction" provisions of Section
5(a)(v) will not apply to Party A or Party B.
(o) The "Tax Event" provisions of Section 5(b)(ii) will apply to Party A
and will not apply to Party B.
(p) The "Tax Event Upon Merger" provisions of Section 5(b)(iii) will
apply to Party A and will not apply to Party B.
Part 2. Tax Representations.
(a) Payer Representations. For purposes of Section 3(e) of this Agreement,
Party A and Party B each make the following representation:
It is not required by any applicable law, as modified by the
practice of any relevant governmental revenue authority, of any
Relevant Jurisdiction to make any deduction or withholding for or on
account of any Tax from any payment (other than interest under
Section 2(e), 6(d)(ii) or 6(e) of this Agreement) to be made by it
to the other party under this Agreement. In making this
representation, it may rely on (i) the accuracy of any
representations made by the other party pursuant to Section 3(f) of
this Agreement, (ii) the satisfaction of the agreement contained in
Section 4(a)(i) or 4(a)(iii) of this Agreement and the accuracy and
effectiveness of any document provided by the other party pursuant
to Section 4(a)(i) or 4(a)(iii) of this Agreement, and (iii) the
satisfaction of the agreement of the other party contained in
Section 4(d) of this Agreement, provided that it shall not be a
breach of this representation where reliance is placed on subclause
(ii) and the other party does not deliver a form or document under
Section 4(a)(iii) by reason of material prejudice to its legal or
commercial position.
Party A Payee Representations. For the purpose of Section 3(f) of this
Agreement, Party A makes the following representations:
(i) It is a "U.S. payee" within the meaning of Treasury Regulation Section
1.1441-5(b).
(ii) It is a United States person within the meaning of Section 7701(a)(30) of
the Internal Revenue Code of 1986, as amended.
Party B Payee Representations. For the purpose of Section 3(f) of this
Agreement, Party B makes the following representation:
(i) It is a trust created under an agreement governed by New York law.
Part 3. Agreement to Deliver Documents.
For the purpose of Section 4(a), each party agrees to deliver the
following documents, as applicable:
(a) Tax forms, documents, or certificates to be delivered are:
Party A agrees to complete, execute, and deliver to Party B, United States
Internal Revenue Service Form W-9 or any successor of such form: (i) on a
date which is before the first scheduled payment date under this
Agreement; (ii) promptly upon reasonable demand by Party B; and (iii)
promptly upon learning that any such forms previously provided by Party A
has become obsolete or incorrect.
Party B agrees to complete, execute, and deliver to Party A, United States
Internal Revenue Service Form W-9 or any successor of such forms: (i) on a
date which is before the first scheduled payment date under this
Agreement; (ii) promptly upon reasonable demand by Party A; and (iii)
promptly upon learning that any such forms previously provided by Party B
has become obsolete or incorrect.
(b) Other documents to be delivered are:
Covered by
Party required to Form/Document/ Date by which Section 3(d)
deliver document Certificate to be delivered Representation
Party A Power of Attorney with At execution of Yes
respect to Party A this Agreement
Party A Support Agreement dated At execution of Yes
as of October 8, 1993 this Agreement
among Party A, Mitsui
Marine and Fire
Insurance Co., Ltd.
("Mitsui Marine"), and
The Xxxxxxx Xxxxx
Group, Inc.
("Goldman Group") (the
"Support Agreement")
accompanied by a
certificate of an
authorized officer of
Party A, certifying
that it is a true,
complete and correct
copy of the original
Support Agreement
Party A Guaranty dated as of At execution of Yes
December 20, 2000 this Agreement
between Mitsui Marine
and Xxxxxxx Xxxxx Group
(the "Guaranty"),
accompanied by a
certificate certifying
that it is a true,
complete and correct
copy of the original
Guaranty
Party A Most recently prepared As soon as Yes
annual balance sheet of possible
Party A following
request of
Party B
Party A Legal opinions with At execution of No
respect to Party A this Agreement
Party B Incumbency certificate At execution of Yes
or other documents this Agreement
evidencing the
authority, incumbency
and specimen signature
of each person
executing this
Agreement, any Credit
Support Document or any
Confirmation, as the
case may be.
Party B Servicer Remittance Promptly upon Yes
Reports becoming
available
Party B Legal opinion with At execution of No
respect to Party B this Agreement
Party B An executed copy of the Within 30 days No
Pooling and Servicing after the date
Agreement, dated as of of this Agreement
May 1, 2006, (the
"Pooling and Servicing
Agreement") among GS
Mortgage Securities Corp.,
as depositor, Xxxxxx Loan
Servicing LP, as a servicer,
Select Portfolio Servicing,
Inc., as a servicer, Avelo
Mortgage, L.L.C., as a
servicer Xxxxx Fargo Bank,
National Association, as
master servicer and as
securities administrator,
X.X. Xxxxxx Trust Company,
National Association, as a
custodian, Deutsche Bank
National Trust Company, as a
custodian, U.S. Bank National
Association, as a custodian and
LaSalle Bank National
Association, as trustee.
Part 4. Miscellaneous.
(a) Addresses for Notices. For the purpose of Section 12(a): Address for
notices or communications to Party A:
Address: 00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Attention: Swap Administration
Telex No.: 421344
Answerback: GOLSAX
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Electronic Messaging
System Details: None
With a copy to:
Address: 00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Attention: Treasury Administration
Telex No.: 421344
Answerback: GOLSAX
Facsimile No. : (000) 000-0000
Telephone No.: (000) 000-0000
Electronic Messaging
System Details: None
Addresses for Notices. For the purpose of Section 12(a): Address for notices or
communications to Party B:
Address: Xxxxx Fargo Bank, National
Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: GSAMP Trust 2006-HE3
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
(b) Process Agent. For the purpose of Section 13(c):
Party A appoints as its Process Agent: Not Applicable
Party B appoints as its Process Agent: Not Applicable
With a copy to:
Address: Standard & Poor's Ratings
Services,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Residential Mortgage Surveillance
Group
Facsimile: 000-000-0000
With a copy to:
Address: Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Residential Mortgage Backed
Securities Group
Facsimile:
000-000-0000
(c) Offices; Multibranch Parties.
(i) The provisions of Section 10(a) will be applicable.
(ii) For the purpose of Section 10(c):
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(d) Calculation Agent. The Calculation Agent is Party A.
(e) Credit Support Document. Details of any Credit Support Document.
(i) With respect to Party A, (A) the Support Agreement, (B)
the Guaranty and (C) any Credit Support Annex that may be entered
into in connection with any of the events described in Part 5(n)(ii)
of this Schedule.
(ii) With respect to Party B, not applicable.
Each Credit Support Document is incorporated by reference into and
constitutes part of this Agreement and each Confirmation as if set
forth in full in this Agreement or such Confirmation.
(f) Credit Support Provider.
(i) Credit Support Provider means in relation to Party A, Goldman
Group and Mitsui Marine; provided that all defaults by,
misrepresentations of, actions or failures to act by, or
circumstances or events applicable to a "Credit Support
Provider" as such term is used in this Agreement shall be
deemed in all such circumstances to refer to defaults
simultaneously in effect with respect to both Goldman Group
and Mitsui Marine, misrepresentations made by both Goldman
Group and Mitsui Marine, actions or failures to act
simultaneously by both Goldman Group and Mitsui Marine, and
circumstances or events simultaneously applicable to both
Goldman Group and Mitsui Marine.
(ii) Credit Support Provider means in relation to Party B, Not
Applicable.
(g) Governing Law. This Agreement and each Confirmation will be governed
by, and construed and enforced in accordance with, the substantive law of the
State of New York, without reference to its choice of law doctrine.
(h) Jurisdiction. Section 13(b) is hereby amended by: (i) deleting in the
second line of subparagraph (i) thereof the word "non-"; and (ii) deleting the
final paragraph thereof.
(i) Netting of Payments. Subparagraph (ii) of Section 2(c) will apply to
Transactions with effect from the date of this Agreement. Notwithstanding
anything to the contrary in Section 2(c), amounts that are payable with respect
to the same Calculation Period shall be netted, as provided in Section 2(c),
even if such amounts are not due on the same Payment Date.
(j) "Affiliate" will have the meaning specified in Section 14; provided,
however, Party B shall be deemed to have no Affiliates.
Part 5. Other Provisions.
(a) Accuracy of Specified Information. With respect to Party A, Section
3(d) is hereby amended by adding in the third line thereof after the word
"respect" and before the period the words "or, in the case of audited or
unaudited financial statements or balance sheets, a fair presentation of the
financial condition of the relevant person."
(b) Transfer. Section 7 is hereby amended by:
(i) adding in the third line thereof after the word "party," the
words "which consent shall not be unreasonably withheld or
delayed" and adding in the third line thereof after the clause
"that: -" the words "provided that the Rating Agency Condition
is satisfied in all events (including in the event of a
transfer under Section 6(b)(ii));
(ii) adding in the second line of subparagraph (a) thereof after
the words "assets to," the words "or reorganization,
incorporation, reincorporation, reconstitution, or reformation
into or as";
(iii) deleting at the end of subparagraph (a) thereof the word
"and";
(iv) deleting in the second line of subparagraph (b) thereof the
period and replacing it with "; and";
(v) adding after subparagraph (b) thereof the following
subparagraph (c):
(c) in addition to, and not in lieu of, the preceding
transfer rights, Party A may, without recourse by Party B or
Party A's transferee to or against Party A, transfer this
Agreement, in whole, but not in part, to any of Party A's
Affiliates or any of the Affiliates of Goldman Group pursuant
to documentation prepared by Party A, provided that:
(i) either (A) such transferee must have a long-term,
unsecured, unsubordinated debt obligation ratings
or financial program ratings (or other similar
ratings) by S&P which are equal to or greater than
the comparable long-term, unsecured,
unsubordinated debt obligation ratings or
financial program ratings (or other similar
ratings) of Party A immediately prior to such
transfer, or (B) the obligations transferred to
such transferee must be guaranteed by Party A
pursuant to a guaranty in substantially the form
of the Guaranty of the Credit Support Provider or
other agreement or instrument consented to by
Party B or other agreement or instrument mutually
agreed upon by both parties and satisfactory to
S&P;
(ii) the transferee will not, as a result of such
transfer, be required to withhold or deduct on
account of a Tax under Section 2(d)(i) on the next
succeeding Scheduled Payment Date an amount in
excess of that which Party A would have been
required to so withhold or deduct on the next
succeeding Scheduled Payment Date in the absence
of such transfer unless the transferee will be
required to make payments of additional amounts
pursuant to Section 2(d)(i)(4) in respect of such
excess;
(iii) an Event of Default or a Termination Event does
not occur as a result of such transfer;
(iv) the Rating Agency Condition is satisfied. With
respect to the results described in subclause (ii)
above, Party A will cause the transferee to make,
and Party B will make, such reasonable Payer Tax
Representations and Payee Tax Representations as
may be mutually agreed upon by the transferee and
Party B in order to permit such parties to
determine that such results will not occur upon or
after the transfer;
(v) Party A agrees to transfer only to a transferee in
a jurisdiction, which it is aware is a "netting"
jurisdiction, that is in which, by opinion of
counsel published by ISDA, netting under this
Agreement shall be enforceable; and
(vi) Party A will be responsible for any costs or
expenses incurred in connection with such
transfer.
(vi) adding at the end of Section 7 the following sentence:
Except as may otherwise be stated in Section 7(c) hereof or in the
documentation evidencing a transfer, a transfer of all of the
obligations of Party A made in compliance with this Section will
constitute an acceptance and assumption of such obligations (and any
related interests so transferred) by the transferee, a novation of
the transferee in place of Party A with respect to such obligations
(and any related interests so transferred), and a release and
discharge by Party B of Party A from, and an agreement by Party B
not to make any claim for payment, liability, or otherwise against
Party A with respect to, such obligations from and after the
effective date of the transfer.
(c) Set-Off. Notwithstanding the last sentence of the first paragraph of
Section 6(e) of this Agreement, but without affecting the provisions of this
Agreement requiring the calculation of certain net payment amounts as a result
of an Event of Default or Termination Event or otherwise, all payments under
this Agreement will be made without setoff or counterclaim.
(d) Reference Market-makers. The definition of "Reference Market-makers"
in Section 14 is hereby amended by adding in the fourth line thereof after the
word "credit" the words "or to enter into transactions similar in nature to
Transactions".
(e) Procedures for Entering into Transactions. On or promptly following
the Trade Date or other transaction date of each Transaction, Party A will send
to Party B a Confirmation. Party B will promptly thereafter request any
correction of such Confirmation (indicating how it believes the terms of such
Confirmation should be correctly stated and such other terms which should be
added to or deleted from such Confirmation to make it correct).
(f) Severability. If any term, provision, covenant, or condition of this
Agreement, or the application thereof to any party or circumstance, shall be
held to be invalid or unenforceable (in whole or in part) for any reason, the
remaining terms, provisions, covenants, and conditions hereof shall continue in
full force and effect as if this Agreement had been executed with the invalid or
unenforceable portion eliminated, so long as this Agreement as so modified
continues to express, without material change, the original intentions of the
parties as to the subject matter of this Agreement and the deletion of such
portion of this Agreement will not substantially impair the respective benefits
or expectations of the parties to this Agreement; provided, however, that this
severability provision shall not be applicable if any provision of Section 2, 5,
6, or 13 (or any definition or provision in Section 14 to the extent it relates
to, or is used in or in connection with any such Section) shall be so held to be
invalid or unenforceable.
(g) Waiver of Right to Trial by Jury. Each party hereby irrevocably
waives, to the fullest extent permitted by applicable law, any right it may have
to trial by jury in respect of any suit, action or proceeding relating to this
Agreement.
(h) Credit Support Default. Subparagraph (3) of Section 5(a)(iii) is
hereby amended by adding in the second line thereof after the word "Document"
and before the semicolon the words "(or such action is taken by any person or
entity appointed or empowered to operate it or act on its behalf)."
(i) Additional Representations. Section 3 is hereby amended by adding the
following additional subsections:
(i) No Agency. With respect to Party A, it is entering into this
Agreement and each Transaction as principal (and not as agent or in
any other capacity, fiduciary or otherwise) and, with respect to
Party B, Xxxxx Fargo Bank, National Association is entering into the
Agreement in its capacity as Securities Administrator of Party B.
(ii) Eligible Contract Participant. It is an "eligible contract
participant" as defined in the U.S. Commodity Exchange Act.
(iii) Non-Reliance. Party A is acting for its own account and Xxxxx
Fargo Bank, National Association is acting as Securities
Administrator for Party B. It has made its own independent decisions
to enter into that Transaction and as to whether that Transaction is
appropriate or proper for it based upon its own judgment and upon
advice from such advisers as it has deemed necessary. It is not
relying on any communication (written or oral) of the other party as
investment advice or as a recommendation to enter into that
Transaction; it being understood that information and explanations
related to the terms and conditions of a Transaction shall not be
considered investment advice or a recommendation to enter into that
Transaction. No communication (written or oral) received from the
other party shall be deemed to be an assurance or guarantee as to
the expected results of that Transaction.
(iv) Assessment and Understanding; Status of Parties. It is capable
of assessing the merits of and understanding (on its own behalf or
through independent professional advice), and understands and
accepts, the terms, conditions and risks of that Transaction. It is
also capable of assuming, and assumes, the risks of that
Transaction. The other party is not acting as a fiduciary for or an
adviser to it in respect of that Transaction.
(j) RESERVED.
(k) Regarding Party A. Party B acknowledges and agrees that Party A has
had and will have no involvement in and, accordingly, accepts no responsibility
for: (i) the establishment, structure, or choice of assets of Party B; (ii) the
selection of any person performing services for or acting on behalf of Party B;
(iii) the selection of Party A as the counterparty; (iv) the terms of the
Certificates; (v) the preparation of or passing on the disclosure and other
information contained in any prospectus or prospectus supplement for the
Certificates, the Pooling and Servicing Agreement, or any other agreements or
documents used by Party B or any other party in connection with the marketing
and sale of the Certificates; (vi) the ongoing operations and administration of
Party B, including the furnishing of any information to Party B which is not
specifically required under this Agreement; or (vii) any other aspect of Party
B's existence except for those matters specifically identified in this
Agreement.
(l) No Recourse. The Certificates represent an equity interest in Party B
only and the foregoing does not represent an interest in or obligation of Party
A, and no recourse may be had by the holders of the Certificates against Party A
or its assets with respect to the Notes and the Certificates and/or this
Agreement.
(m) Indemnifiable Tax. Party A agrees that Party B will not be required to
pay any additional amounts pursuant to Section 2(d)(i)(4) of the Agreement in
respect of an Indemnifiable Tax. If Party A is required to pay additional
amounts in respect of a withholding tax pursuant to Section 2(d)(i)(4) of this
Agreement, Party A may transfer this Agreement, subject to satisfaction of the
Rating Agency Condition, as provided in Section 6(b)(ii) of this Agreement and
such transfer shall not require the consent of Party B to the extent it is in
conformance with the provisions of Section 7(c), as amended herein.
(n) Additional Termination Events.
(i) It shall be an Additional Termination Event, with Party A as
the sole Affected Party, if the Depositor determines at any
time that it is required for purposes of compliance with Item
1115(b) of Regulation AB to provide any financial or other
data relating to Party A and, within 15 calendar days of such
determination, Party A fails to assign this Agreement and all
of its obligations hereunder (of its sole cost and expense) to
a substitute counterparty that (A) has agreed to provide any
financial or other data required under Regulation AB, (B) has
agreed to provide indemnifications relating to such financial
or other data acceptable to the Depositor, (C) satisfies the
Rating Agency Condition and (D) is approved by the Depositor
(which approval shall not be unreasonably withheld). For the
avoidance of doubt, unless otherwise specified in this
Agreement, Party A shall be under no obligation to provide any
such financial or other data, whether in connection with this
Termination Event or otherwise. For purposes of this
Termination Event, (i) "Commission" shall mean the Securities
and Exchange Commission, (ii) "Depositor" shall mean GS
Mortgage Securities Corp., and (iii) "Regulation AB" shall
mean the Asset Backed Securities Regulation AB, 17 C.F.R.
ss.ss.229.1100-229.1123, as such may be amended from time to
time, and subject to such clarification and interpretation as
have been provided by the Commission in the adopting release
(Asset-Backed Securities, Securities Act Release No. 33-8518,
70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of
the Commission, or as may be provided by the Commission or its
staff from time to time.
(ii) It shall also be an Additional Termination Event if (i) an
Optional Termination Date is designated pursuant to the
Pooling and Servicing Agreement (a "Redemption Termination")
and (ii) there remains no more than 5 Business Days prior to
the proposed Redemption Date. In the case of a Redemption
Termination, both Party A and Party B shall have the right to
cause a termination of this Agreement and, for purposes of
Section 6(e)(ii) of this Agreement, Party B shall be the sole
Affected Party. Following notification from the Securities
Administrator that it has received a redemption notice, Party
A shall provide the Securities Administrator from time to
time, upon request, with good faith estimates of the amount
that would be payable under Section 6(e)(ii) in the event of
such Redemption Termination. Any termination payment payable
in respect of such Additional Termination Event shall be paid
on the relevant Redemption Date.
(iii) (I) It shall also be an Additional Termination Event, with
Party A the sole Affected Party (except as expressly provided
herein) if Party A, a replacement counterparty, or a person or
an entity that guarantees the obligations of Party A or a
replacement counterparty, as the case may be, has a rating
that does not satisfy the Required Hedge Counterparty Rating
(but is at least "BBB-" or "A-3" (if applicable) by S&P and at
least A1 by Moody's) and none of the following events has
occurred:
(A) within 30 days of such failure to satisfy the
Required Hedge Counterparty Rating, Party A or
such replacement counterparty, as the case may be,
transfers this Agreement, in whole, but not in
part, to a counterparty that satisfies the
Required Hedge Counterparty Rating, subject to
satisfaction of the Rating Agency Condition;
(B) within 30 days of such failure to satisfy the
Required Hedge Counterparty Rating, Party A or
such replacement counterparty, as the case may be,
collateralizes its Exposure to Party B pursuant to
an ISDA Credit Support Annex, subject to
satisfaction of the Rating Agency Condition, as
applicable; provided that such ISDA Credit Support
Annex shall be made a Credit Support Document for
Party A pursuant to an amendment of this Agreement
in a form acceptable to the Securities
Administrator which amendment shall also be
subject to satisfaction of Rating Agency
Condition;
(C) within 30 days of such failure to satisfy the
Required Hedge Counterparty Rating, the
obligations of Party A or such replacement
counterparty, as the case may be, under this
Agreement are guaranteed by a person or entity
that satisfies the Required Hedge Counterparty
Rating, subject to satisfaction of the Rating
Agency Condition; or
(D) within 30 days of such failure to satisfy the
Required Hedge Counterparty Rating, Party A or
such replacement counterparty, as the case may be,
takes such other steps, if any, to enable the
Issuer to satisfy the Rating Agency Condition.
(II) It shall also be an Additional Termination Event,
with Party A as the sole Affected Party (except as
expressly provided herein) if Party A, a replacement
counterparty, or a person or an entity that guarantees
the obligations of Party A or a replacement
counterparty, as the case may be, has a rating withdrawn
or reduced below "BBB-" or "A-3" (if applicable) by S&P
or below "A1" by Moody's and within 7 days thereafter,
Party A or such replacement counterparty, as the case
may be, while collateralizing its Exposure to Party B,
fails to transfer this Agreement, in whole, but not in
part, to a counterparty that satisfies the Required
Hedge Counterparty Rating, subject to satisfaction of
the Rating Agency Condition.
Upon downgrade of Party A below the Required Hedge
Counterparty Rating or below "BBB-" or "A-3" (if applicable)
by S&P or below "A1" by Moody's, or if S&P or Moody's
withdraws its ratings for any reason, Party A will promptly
give notice of the circumstances to Party B and to the rating
agencies that at the time are providing ratings for the
Certificates.
Party B shall be entitled to (A)(1) in case of an Additional
Termination Event described in Part 5(n)(iii)(I), designate a
date that is not earlier than the expiration of the 30 day
period referred to in Part 5(n)(iii)(I) as an Early
Termination Date in respect of all transactions under this
Agreement by giving notice to Party A at least 10 days prior
to the date so designated (which notice may be given prior to
the expiration of such 30 day period) and (2) in case of an
Additional Termination Event described in this Part
5(n)(iii)(II), immediately designate an Early Termination
Date, in respect of all transactions under this Agreement by
giving notice to Party A and (B) no later than the respective
dates specified in clause (A)(1) and (A)(2), transfer the
rights and obligations of Party A hereunder to a counterparty
that satisfies the Required Hedge Counterparty Rating, subject
to satisfaction of the Rating Agency Condition.
In connection with a transfer of this Agreement as described
in this Part 5(n)(iii), Party A shall, at its sole cost and
expense, use commercially reasonable efforts to seek a
replacement counterparty. In addition, if Party A pursues any
of the alternative actions contemplated in paragraphs (A),
(B), (C) and (D) of Part 5(n)(iii)(I) above, it shall do so at
its sole cost and expense.
As used herein, "Required Hedge Counterparty Rating" means,
with respect to a counterparty or entity guaranteeing the
obligations of such counterparty, (x) either (i) if such
counterparty or entity has only a long-term rating by Moody's,
a long-term senior, unsecured debt obligation rating,
financial program rating or other similar rating (as the case
may be, the "Long-Term rating") of at least "A1" by Moody's
and if rated "A1" by Xxxxx'x is not on negative credit watch
by Moody's or (ii) if such counterparty or entity has a
Long-Term Rating and a short-term rating by Moody's, a
Long-Term Rating of at least "A2" by Moody's and a short-term
rating of "P-1" by Xxxxx'x and, in each case, such rating is
not on negative credit watch by Xxxxx'x and (y) (i) a
short-term rating of at least "A-1" by S&P or (ii) if such
counterparty or entity does not have a short-term rating by
S&P, a Long-Term Rating of at least "A+" by S&P.
For the purposes of determining the Settlement Amount with
respect to the designation of an Early Termination Date
arising from the Additional Termination Event specified in
Party 5(n)(iii), both Party A and Party B shall be Affected
Parties. If the Settlement Amount calculated pursuant to this
subclause (iii) is an amount owing by Party B to Party A, then
such payment shall be a Swap Termination Payment payable by
Party B to Party A in accordance with the priority of payments
described in the Pooling and Servicing Agreement; provided,
however, that (a) if Party A does not after the exercise of
commercially reasonable efforts cause any of the conditions
specified in Part 5(n)(iii)(I)(A) to (D) to be satisfied,
Party B shall use commercially reasonable efforts to enter
into a replacement Transaction(s) with a counterparty
acceptable to the Rating Agencies, in respect of the Affected
Transaction(s) relating to the Additional Termination Event;
and (b) where multiple quotations are available such
replacement Transaction(s) shall be entered into based on the
quoted price(s) that would result in the largest payment made
to Party B by the replacement counterparty (it being
understood that Party A may be permitted to actively solicit
and obtain such quotations on behalf of Party B); and (c) to
the extent that payments are received by Party B as a result
of entering into such replacement Transaction(s), then Party A
shall have first priority as to such payments versus all other
creditors of Party B and Party B shall pay the lesser of (x)
the amount so received and (y) the Swap Termination Payment to
the extent not already paid by Party B over to Party A
immediately upon receipt.
As used herein, "Exposure" means, as of any date of
determination, the amount, if any, that would be payable to
Party B by Party A under this Agreement if an Early
Termination Date were to occur as of such date of
determination as a result of a Termination Event, Party A were
the sole Affected Party, all Transactions were terminated in
connection with such Early Termination Date and (solely for
purposes of determining Exposure) the amount of such payment
were calculated using Market Quotation.
For any Additional Termination Event, the date that Party A or Party
B, as the case may be, specifies in its notice of its election to
terminate shall be the Early Termination Date for the Transactions;
provided, that solely in the case of an Additional Termination Event
described in subclause (ii) above, the Early Termination Date shall
be no earlier than the 3rd Business Day preceding the Redemption
Date and no later than the Redemption Date.
(o) Indemnifiable Tax. The definition of "Indemnifiable Tax" in Section 14
is hereby amended by adding the following sentence at the end thereof:
Notwithstanding the foregoing, "Indemnifiable Tax" also means any
Tax imposed in respect of a payment under this Agreement by reason
of a Change in Tax Law by a government or taxing authority of a
Relevant Jurisdiction of the party making such payment, unless the
other party is incorporated, organized, managed and controlled, or
considered to have its seat in such jurisdiction, or is acting for
purposes of this Agreement through a branch or office located in
such jurisdiction.
(p) Limited Recourse; Non-petition. Party A agrees that the obligations of
Party B hereunder are limited recourse obligations payable solely from the
assets of Party B, and due to the extent funds are available for the payment
thereof in accordance with the priority of payments described in the Pooling and
Servicing Agreement. Party A agrees that it will not, prior to the date which is
at least one year and one day or, if longer, the then applicable preference
period following the payment in full of all the Certificates issued pursuant to
the Pooling and Servicing Agreement and the expiration of all applicable
preference periods under Title 11 of the United States Code or other applicable
law relating to any such payment, acquiesce, petition or otherwise invoke or
cause Party B to invoke the process of any governmental authority for the
purpose of commencing or sustaining a case (whether voluntary or involuntary)
against Party B under any bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, securities administrator, custodian,
sequestrator or other similar official of Party B or any substantial part of its
property or ordering the winding-up or liquidation of the affairs of Party B.
Nothing contained herein shall prohibit Party A from submitting a claim, or
proof of claim, in any proceeding or process instituted by or against Party B by
any person other than Party A or its Affiliates. Party A and Party B agree that
this Part 5(p) shall survive the termination of this Agreement for any reason
whatsoever.
(q) Securities Administrator Capacity. It is expressly understood and
agreed by the parties hereto that insofar as this Agreement is executed by the
Securities Administrator (i) this Agreement is executed and delivered by Xxxxx
Fargo Bank, National Association, not in its individual capacity but solely as
Securities Administrator under the Pooling and Servicing Agreement in the
exercise of the powers and authority conferred to and vested in it thereunder
and (ii) under no circumstances shall Xxxxx Fargo Bank, National Association in
its individual capacity be personally liable for the payment of any indebtedness
or expenses or be personally liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken under this Agreement on
behalf of Party B or any assignee.
(r) Additional Party A Covenant. Following a failure to satisfy the
Required Hedge Counterparty Rating in accordance with Part 5(n)(iii)(I), Party A
shall take the actions described in accordance with Part 5(n)(iii)(I)(A), (B),
(C) or (D). Following a failure to satisfy the rating requirements set forth in
Part 5(n)(iii)(II), Party A shall take the actions described in accordance with
Part 5(n)(iii)(II).
(s) Agreements: Furnish Specified Information. Section 4(a) is hereby
amended by adding at the end thereof the following paragraph:
Notwithstanding the foregoing provisions of this Section 4(a), the
parties agree that, pursuant to the terms of the Power of Attorney
with respect to Party A referred to in Part 3(b) of this Schedule,
any one or more of the officers of Party A's general partner who has
been designated as an agent and attorney in fact of Party A will so
deliver to Party B or such government or taxing authority the
specified or requested forms, documents, or certificates.
(t) Confirmations. Transactions shall be promptly confirmed by the parties
by Confirmations exchanged by mail, telex, facsimile or other electronic means.
Where a Transaction is confirmed by means of an electronic messaging system that
the parties have elected to use to confirm such Transaction (i) such
confirmation will constitute a "Confirmation" as referred to in this Agreement
even where not so specified in the confirmation and (ii) such Confirmation will
supplement, form part of, and be subject to this Agreement and all provisions in
this Agreement will govern the Confirmation except as modified therein.
(u) Tax Documentation. Section 4(a)(iii) of the Agreement is hereby
amended by adding prior to the existing text:
"upon the earlier of learning that any such form or document is required
or"
(v) Inconsistency-Trade Call. In the event of any inconsistency between a
telephone conversation, including a trade call and a Confirmation signed by both
parties, the Confirmation shall govern.
(w) Condition Precedent. The condition precedent in Section 2(a)(iii)(1)
does not apply to a payment and delivery owing by a party if the other party
shall have satisfied in full all its payment or delivery obligations under
Section 2(a)(i) and shall at the relevant time have no future payment or
delivery obligations, whether absolute or contingent, under Section 2(a)(i).
(x) Definitions. This Agreement shall be subject to the 2000 Definitions
(the "2000 Definitions") as published by the International Swaps and Derivatives
Association Inc. The provisions of the 2000 Definitions are incorporated by
reference in and shall be deemed a part of this Agreement, except that all
references in the 2000 Definitions to a "Swap Transaction" shall be deemed
references to a "Transaction" for the purposes of this Agreement. Capitalized
terms used and not otherwise defined herein (or in the 2000 Definitions) shall
have the respective meanings ascribed to such terms in the Pooling and Servicing
Agreement referred to in Part 3(b). If in relation to any Transaction there is
any inconsistency between the 2000 Definitions, this Agreement, the Pooling and
Servicing Agreement, any Confirmation and any other definitions published by
ISDA that are incorporated into any Confirmation, the following will prevail for
purposes of such Transaction in the order of precedence indicated: (i) such
Confirmation (without reference to any definitions or provisions incorporated
therein); (ii) the Pooling and Servicing Agreement; (iii) this Agreement; (iv)
such other definitions; and (v) the 2000 Definitions.
(y) Amendments. Section 9(b) is hereby amended as follows:
(i) by inserting the following phrase immediately prior to the
period at the end of the sentence: "and the Rating Agency Condition
is satisfied"; and
(ii) by adding the following text thereto immediately following the
first sentence: "Amendments to this Agreement or the Schedule may
not be effected in a Confirmation."
(z) "Rating Agency Condition" means, with respect to any action to which a
Rating Agency Condition applies, that each rating agency then rating the
Certificates shall have been given ten days (or such shorter period as is
acceptable to each such rating agency) prior notice of that action and
that each such rating agency shall have notified the Securities
Administrator in writing that such action will not result in a reduction,
qualification or withdrawal of the then current rating of the Certificates
that it maintains.
IN WITNESS WHEREOF, the parties have executed this document on the
respective dates specified below with effect from the date specified on the
first page of this document.
XXXXXXX XXXXX MITSUI MARINE DERIVATIVE
PRODUCTS, L.P.
By: GSMMDPGP, INC.
By: /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
Date: May 26, 2006
GSAMP TRUST 2006-HE3
By: Xxxxx Fargo Bank, N.A.,
not in its individual capacity but solely
as Securities Administrator, on behalf of
GSAMP Trust 2006-HE3
By: /s/ Xxxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxxx Xxxxx
Title: Vice President
Date: May 26, 2006
(Multicurrency -- Cross Border)
ISDA(R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of May 26, 2006
Xxxxxxx Xxxxx Mitsui Marine Derivatives Products, L.P. and GSAMP Trust 2006-HE3
have entered and/or anticipate entering into one or more transactions (each a
"Transaction") that are or will be governed by this Master Agreement, which
includes the schedule (the "Schedule"), and the documents and other confirming
evidence (each a "Confirmation") exchanged between the parties confirming those
Transactions.
Accordingly, the parties agree as follows: --
1. Interpretation
(a) Definitions. The terms defined in Section 14 and in the Schedule will have
the meanings therein specified for the purpose of this Master Agreement.
(b) Inconsistency. In the event of any inconsistency between the provisions of
the Schedule and the other provisions of this Master Agreement, the Schedule
will prevail. In the event of any inconsistency between the provisions of any
Confirmation and this Master Agreement (including the Schedule), such
Confirmation will prevail for the purpose of the relevant Transaction.
(c) Single Agreement. All Transactions are entered into in reliance on the
fact that this Master Agreement and all Confirmations form a single agreement
between the parties (collectively referred to as this "Agreement"), and the
parties would not otherwise enter into any Transactions.
2. Obligations
(a) General Conditions.
(i) Each party will make each payment or delivery specified in each
Confirmation to be made by it, subject to the other provisions of this
Agreement.
(ii) Payments under this Agreement will be made on the due date for value
on that date in the place of the account specified in the relevant
Confirmation or otherwise pursuant to this Agreement, in freely
transferable funds and in the manner customary for payments in the
required currency. Where settlement is by delivery (that is, other than by
payment), such delivery will be made for receipt on the due date in the
manner customary for the relevant obligation unless otherwise specified in
the relevant Confirmation or elsewhere in this Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is subject to
(1) the condition precedent that no Event of Default or Potential Event of
Default with respect to the other party has occurred and is continuing,
(2) the condition precedent that no Early Termination Date in respect of
the relevant Transaction has occurred or been effectively designated and
(3) each other applicable condition precedent specified in this Agreement.
(b) Change of Account. Either party may change its account for receiving a
payment or delivery by giving notice to the other party at least five Local
Business Days prior to the scheduled date for the payment or delivery to which
such change applies unless such other party gives timely notice of a reasonable
objection to such change.
(c) Netting. If on any date amounts would otherwise be payable:--
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other, then, on such date, each party's obligation to make
payment of any such amount will be automatically satisfied and discharged and,
if the aggregate amount that would otherwise have been payable by one party
exceeds the aggregate amount that would otherwise have been payable by the other
party, replaced by an obligation upon the party by whom the larger aggregate
amount would have been payable to pay to the other party the excess of the
larger aggregate amount over the smaller aggregate amount.
The parties may elect in respect of two or more Transactions that a net amount
will be determined in respect of all amounts payable on the same date in the
same currency in respect of such Transactions, regardless of whether such
amounts are payable in respect of the same Transaction. The election may be made
in the Schedule or a Confirmation by specifying that subparagraph (ii) above
will not apply to the Transactions identified as being subject to the election,
together with the starting date (in which case subparagraph (ii) above will not,
or will cease to, apply to such Transactions from such date). This election may
be made separately for different groups of Transactions and will apply
separately to each pairing of Offices through which the parties make and receive
payments or deliveries.
(d) Deduction or Withholding for Tax.
(i) Gross-Up. All payments under this Agreement will be made without any
deduction or withholding for or on account of any Tax unless such
deduction or withholding is required by any applicable law, as modified by
the practice of any relevant governmental revenue authority, then in
effect. If a party is so required to deduct or withhold, then that party
("X") will:--
(1) promptly notify the other party ("Y") of such requirement;
(2) pay to the relevant authorities the full amount required to be
deducted or withheld (including the full amount required to be
deducted or withheld from any additional amount paid by X to Y under
this Section 2(d)) promptly upon the earlier of determining that
such deduction or withholding is required or receiving notice that
such amount has been assessed against Y;
(3) promptly forward to Y an official receipt (or a certified copy),
or other documentation reasonably acceptable to Y, evidencing such
payment to such authorities; and
(4) if such Tax is an Indemnifiable Tax, pay to Y, in addition to
the payment to which Y is otherwise entitled under this Agreement,
such additional amount as is necessary to ensure that the net amount
actually received by Y (free and clear of Indemnifiable Taxes,
whether assessed against X or Y) will equal the full amount Y would
have received had no such deduction or withholding been required.
However, X will not be required to pay any additional amount to Y to
the extent that it would not be required to be paid but for:--
(A) the failure by Y to comply with or perform any agreement
contained in Section 4(a)(i), 4(a)(iii) or 4(d); or
(B) the failure of a representation made by Y pursuant to
Section 3(f) to be accurate and true unless such failure would
not have occurred but for (I) any action taken by a taxing
authority, or brought in a court of competent jurisdiction, on
or after the date on which a Transaction is entered into
(regardless of whether such action is taken or brought with
respect to a party to this Agreement) or (II) a Change in Tax
Law.
(ii) Liability. If: --
(1) X is required by any applicable law, as modified by the practice
of any relevant governmental revenue authority, to make any
deduction or withholding in respect of which X would not be required
to pay an additional amount to Y under Section 2(d)(i)(4);
(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed directly against
X,
then, except to the extent Y has satisfied or then satisfies the liability
resulting from such Tax, Y will promptly pay to X the amount of such
liability (including any related liability for interest, but including any
related liability for penalties only if Y has failed to comply with or
perform any agreement contained in Section 4(a)(i), 4(a)(iii) or 4(d)).
(e) Default Interest; Other Amounts. Prior to the occurrence or effective
designation of an Early Termination Date in respect of the relevant Transaction,
a party that defaults in the performance of any payment obligation will, to the
extent permitted by law and subject to Section 6(c), be required to pay interest
(before as well as after judgment) on the overdue amount to the other party on
demand in the same currency as such overdue amount, for the period from (and
including) the original due date for payment to (but excluding) the date of
actual payment, at the Default Rate. Such interest will be calculated on the
basis of daily compounding and the actual number of days elapsed. If, prior to
the occurrence or effective designation of an Early Termination Date in respect
o-f the relevant Transaction, a party defaults in the performance of any
obligation required to be settled by delivery, it will compensate the other
party on demand if and to the extent provided for in the relevant Confirmation
or elsewhere in this Agreement.
3. Representations
Each party represents to the other party (which representations will be deemed
to be repeated by each party on each date on which a Transaction is entered into
and, in the case of the representations in Section 3(f), at all times until the
termination of this Agreement) that:--
(a) Basic Representations.
(i) Status. It is duly organised and validly existing under the laws of
the jurisdiction of its organisation or incorporation and, if relevant
under such laws, in good standing;
(ii) Powers. It has the power to execute this Agreement and any other
documentation relating to this Agreement to which it is a party, to
deliver this Agreement and any other documentation relating to this
Agreement that it is required by this Agreement to deliver and to perform
its obligations under this Agreement and any obligations it has under any
Credit Support Document to which it is a party and has taken all necessary
action to authorise such execution, delivery and performance;
(iii) No Violation or Conflict. Such execution, delivery and performance
do not violate or conflict with any law applicable to it, any provision of
its constitutional documents, any order or judgment of any court or other
agency of government applicable to it or any of its assets or any
contractual restriction binding on or affecting it or any of its assets;
(iv) Consents. All governmental and other consents that are required to
have been obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party have been obtained and are in lull
force and effect and all conditions of any such consents have been
complied with; and
(v) Obligations Binding. Its obligations under this Agreement and any
Credit Support Document to which it is a party constitute its legal, valid
and binding obligations, enforceable in accordance with their respective
terms (subject to applicable bankruptcy, reorganization, insolvency,
moratorium or similar laws affecting creditors' rights generally and
subject, as to enforceability, to equitable principles of general
application (regardless of whether enforcement is sought in a proceeding
in equity or at law)).
(b) Absence of Certain Events. No Event of Default or Potential Event of
Default or, to its knowledge, Termination Event with respect to it has occurred
and is continuing and no such event or circumstance would occur as a result
of its entering into or performing its obligations under this Agreement or any
Credit Support Document to which it is a party.
(c) Absence of Litigation. There is not pending or, to its knowledge,
threatened against it or any of its Affiliates any action, suit or proceeding at
law or in equity or before any court, tribunal, governmental body, agency or
official or any arbitrator that is likely to affect the legality, validity or
enforceability against it of this Agreement or any Credit Support Document to
which it is a party or its ability to perform its obligations under this
Agreement or such Credit Support Document.
(d) Accuracy of Specified Information. All applicable information that is
furnished in writing by or on behalf of it to the other party and is identified
for the purpose of this Section 3(d) in the Schedule is, as of the date of the
information, true, accurate and complete in every material respect.
(e) Payer Tax Representation. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(e) is accurate and true.
(f) Payee Tax Representations. Each representation specified in the Schedule
as being made by it for the purpose of this Section 3(f) is accurate and true.
4. Agreements
Each party agrees with the other that, so long as either party has or may have
any obligation under this Agreement or under any Credit Support Document to
which it is a party:--
(a) Furnish Specified Information. It will deliver to the other party or, in
certain cases under subparagraph (iii) below, to such government or taxing
authority as the other party reasonably directs:--
(i) any forms, documents or certificates relating to taxation specified in
the Schedule or any Confirmation;
(ii) any other documents specified in the Schedule or any Confirmation;
and
(iii) upon reasonable demand by such other party, any form or document
that may be required or reasonably requested in writing in order to allow
such other party or its Credit Support Provider to make a payment under
this Agreement or any applicable Credit Support Document without any
deduction or withholding for or on account of any Tax or with such
deduction or withholding at a reduced rate (so long as the completion,
execution or submission of such form or document would not materially
prejudice the legal or commercial position of the party in receipt of such
demand), with any such form or document to be accurate and completed in a
manner reasonably satisfactory to such other party and to be executed and
to be delivered with any reasonably required certification,
in each case by the date specified in the Schedule or such Confirmation or, if
none is specified, as soon as reasonably practicable.
(b) Maintain Authorisations. It will use all reasonable efforts to maintain in
full force and effect all consents of any governmental or other authority that
are required to be obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party and will use all reasonable efforts to
obtain any that may become necessary in the future.
(c) Comply with Laws. It will comply in all material respects with all
applicable laws and orders to which it may be subject if failure so to comply
would materially impair its ability to perform its obligations under this
Agreement or an Credit Support Document to which it is a party.
(d) Tax Agreement. It will give notice of any failure of a representation made
by it under Section 3(f) to be accurate and true promptly upon learning of such
failure.
(e) Payment of Stamp Tax. Subject to Section 11, it will pay any Stamp Tax
levied or imposed upon it or in respect of its execution or performance of this
Agreement by a jurisdiction in which it is incorporated, organised, managed and
controlled, or considered to have its seat, or in which a branch or office
through which it is acting for the purpose of this Agreement is located ("Stamp
Tax Jurisdiction") and will indemnify the other party against any Stamp Tax
levied or imposed upon the other party or in respect of the other party's
execution or performance of this Agreement by any such Stamp Tax Jurisdiction
which is not also a Stamp Tax Jurisdiction with respect to the other party.
5. Events of Default and Termination Events
(a) Events of Default. The occurrence at any time with respect to a party or,
if applicable, any Credit Support Provider of such party or any Specified Entity
of such party of any of the following events constitutes an event of default (an
"Event of Default") with respect to such party:--
(i) Failure to Pay or Deliver. Failure by the party to make, when due, any
payment under this Agreement or delivery under Section 2(a)(i) or 2(e)
required to be made by it if such failure is not remedied on or before the
third Local Business Day after notice of such failure is given to the
party;
(ii) Breach of Agreement. Failure by the party to comply with or perform
any agreement or obligation (other than an obligation to make any payment
under this Agreement or delivery under Section 2(a)(i) or 2(e) or to give
notice of a Termination Event or any agreement or obligation under Section
4(a)(i), 4(a)(iii) or 4(d)) to be complied with or performed by the party
in accordance with this Agreement if such failure is not remedied on or
before the thirtieth day after notice of such failure is given to the
party;
(iii) Credit Support Default.
(1) Failure by the party or any Credit Support Provider of such
party to comply with or perform any agreement or obligation to be
complied with or performed by it in accordance with any Credit
Support Document if such failure is continuing after any applicable
grace period has elapsed;
(2) the expiration or termination of such Credit Support Document or
the failing or ceasing of such Credit Support Document to be in full
force and effect for the purpose of this Agreement (in either case
other than in accordance with its terms) prior to the satisfaction
of all obligations of such party under each Transaction to which
such Credit Support Document relates without the written consent of
the other party; or
(3) the party or such Credit Support Provider disaffirms, disclaims,
repudiates or rejects, in whole or in part, or challenges the
validity of such Credit Support Document;
(iv) Misrepresentation. A representation (other than a representation
under Section 3(e) or (f)) made or repeated or deemed to have been made or
repeated by the party or any Credit Support Provider of such party in this
Agreement or any Credit Support Document proves to have been incorrect or
misleading in any material respect when made or repeated or deemed to have
been made or repeated;
(v) Default under Specified Transaction. The party, any Credit Support
Provider of such party or any applicable Specified Entity of such party
(1) defaults under a Specified Transaction and, after giving effect to any
applicable notice requirement or grace period, there occurs a liquidation
of, an acceleration of obligations under, or an early termination of, that
Specified Transaction, (2) defaults, after giving effect to any applicable
notice requirement or grace period, in making any payment or delivery due
on the last payment, delivery or exchange date of, or any payment on early
termination of, a Specified Transaction (or such default continues for at
least three Local Business Days if there is no applicable notice
requirement or grace period) or (3) disaffirms, disclaims, repudiates or
rejects, in whole or in part, a Specified Transaction (or such action is
taken by any person or entity appointed or empowered to operate it or act
on its behalf);
(vi) Cross Default. If "Cross Default" is specified in the Schedule as
applying to the party, the occurrence or existence of (1) a default, event
of default or other similar condition or event (however described) in
respect of such party, any Credit Support Provider of such party or any
applicable Specified Entity of such party under one or more agreements or
instruments relating to Specified Indebtedness of any of them
(individually or collectively) in an aggregate amount of not less than the
applicable Threshold Amount (as specified in the Schedule) which has
resulted in such Specified Indebtedness becoming, or becoming capable at
such time of being declared, due and payable under such agreements or
instruments, before it would otherwise have been due and payable or (2) a
default by such party, such Credit Support Provider or such Specified
Entity (individually or collectively) in making one or more payments on
the due date thereof in an aggregate amount of not less than the
applicable Threshold Amount under such agreements or instruments (after
giving effect to any applicable notice requirement or grace period);
(vii) Bankruptcy. The party, any Credit Support Provider of such party or
any applicable Specified Entity of such party:--
(1) is dissolved (other than pursuant to a consolidation,
amalgamation or merger); (2) becomes insolvent or is unable to pay
its debts or fails or admits in writing its inability generally to
pay its debts as they become due; (3) makes a general assignment,
arrangement or composition with or for the benefit of its creditors;
(4) institutes or has instituted against it a proceeding seeking a
judgment of insolvency or bankruptcy or any other relief under any
bankruptcy or insolvency law or other similar law affecting
creditors' rights, or a petition is presented for its winding-up or
liquidation, and, in the case of any such proceeding or petition
instituted or presented against it, such proceeding or petition (A)
results in a judgment of insolvency or bankruptcy or the entry of an
order for relief or the making of an order for its winding-up or
liquidation or (B) is not dismissed, discharged, stayed or
restrained in each case within 30 days of the institution or
presentation thereof; (5) has a resolution passed for its
winding-up, official management or liquidation (other than pursuant
to a consolidation, amalgamation or merger); (6) seeks or becomes
subject to the appointment of an administrator, provisional
liquidator, conservator, receiver, trustee, custodian or other
similar official for it or for all or substantially all its assets;
(7) has a secured party take possession of all or substantially all
its assets or has a distress, execution, attachment, sequestration
or other legal process levied, enforced or sued on or against all or
substantially all its assets and such secured party maintains
possession, or any such process is not dismissed, discharged, stayed
or restrained, in each case within 30 days thereafter; (8) causes or
is subject to any event with respect to it which, under the
applicable laws of any jurisdiction, has an analogous effect to any
of the events specified in clauses (1) to (7) (inclusive); or (9)
takes any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the foregoing acts; or
(viii) Merger Without Assumption. The party or any Credit Support Provider
of such party consolidates or amalgamates with, or merges with or into, or
transfers all or substantially all its assets to, another entity and, at
the time of such consolidation, amalgamation, merger or transfer:--
(1) the resulting, surviving or transferee entity fails to assume
all the obligations of such party or such Credit Support Provider
under this Agreement or any Credit Support Document to which it or
its predecessor was a party by operation of law or pursuant to an
agreement reasonably satisfactory to the other party to this
Agreement; or
(2) the benefits of any Credit Support Document fail to extend
(without the consent of the other party) to the performance by such
resulting, surviving or transferee entity of its obligations under
this Agreement.
(b) Termination Events. The occurrence at any time with respect to a party or,
if applicable, any Credit Support Provider of such party or any Specified Entity
of such party of any event specified below constitutes an Illegality if the
event is specified in (i) below, a Tax Event if the event is specified in (ii)
below or a Tax Event Upon Merger if the event is specified in (iii) below, and,
if specified to be applicable, a Credit Event Upon Merger if the event is
specified pursuant to (iv) below or an Additional Termination Event if the event
is specified pursuant to (v) below:--
(i) Illegality. Due to the adoption of, or any change in, any applicable
law after the date on which a Transaction is entered into, or due to the
promulgation of, or any change in, the interpretation by any court,
tribunal or regulatory authority with competent jurisdiction of any
applicable law after such date, it becomes unlawful (other than as a
result of a breach by the party of Section 4(b)) for such party (which
will be the Affected Party): --
(1) to perform any absolute or contingent obligation to make a
payment or delivery or to receive a payment or delivery in respect
of such Transaction or to comply with any other material provision
of this Agreement relating to such Transaction; or
(2) to perform, or for any Credit Support Provider of such party to
perform, any contingent or other obligation which the party (or such
Credit Support Provider) has under any Credit Support Document
relating to such Transaction;
(ii) Tax Event. Due to (x) any action taken by a taxing authority, or
brought in a court of competent jurisdiction, on or after the date on
which a Transaction is entered into (regardless of whether such action is
taken or brought with respect to a party to this Agreement) or (y) a
Change in Tax Law, the party (which will be the Affected Party) will, or
there is a substantial likelihood that it will, on the next succeeding
Scheduled Payment Date (1) be required to pay to the other party an
additional amount in respect of an Indemnifiable Tax under Section
2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii) or
6(e)) or (2) receive a payment from which an amount is required to be
deducted or withheld for or on account of a Tax (except in respect of
interest under Section 2(e), 6(d)(ii) or 6(e)) and no additional amount is
required to be paid in respect of such Tax under Section 2(d)(i)(4) (other
than by reason of Section 2(d)(i)(4)(A) or (B));
(iii) Tax Event Upon Merger. The party (the "Burdened Party") on the next
succeeding Scheduled Payment Date will either (1) be required to pay an
additional amount in respect of an Indemnifiable Tax under Section
2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii) or
6(e)) or (2) receive a payment from which an amount has been deducted or
withheld for or on account of any Indemnifiable Tax in respect of which
the other party is not required to pay an additional amount (other than by
reason of Section 2(d)(i)(4)(A) or (B)), in either case as a result of a
party consolidating or amalgamating with, or merging with or into, or
transferring all or substantially all its assets to, another entity (which
will be the Affected Party) where such action does not constitute an event
described in Section 5(a)(viii);
(iv) Credit Event Upon Merger. If "Credit Event Upon Merger" is specified
in the Schedule as applying to the party, such party ("X"), any Credit
Support Provider of X or any applicable Specified Entity of X consolidates
or amalgamates with, or merges with or into, or transfers all or
substantially all its assets to, another entity and such action does not
constitute an event described in Section 5(a)(viii) but the
creditworthiness of the resulting, surviving or transferee entity is
materially weaker than that of X, such Credit Support Provider or such
Specified Entity, as the case may be, immediately prior to such action
(and, in such event, X or its successor or transferee, as appropriate,
will be the Affected Party); or
(v) Additional Termination Event. If any "Additional Termination Event" is
specified in the Schedule or any Confirmation as applying, the occurrence
of such event (and, in such event, the Affected Party or Affected Parties
shall be as specified for such Additional Termination Event in the
Schedule or such Confirmation).
(c) Event of Default and Illegality. If an event or circumstance which would
otherwise constitute or give rise to an Event of Default also constitutes an
Illegality, it will be treated as an Illegality and will not constitute an Event
of Default.
6. Early Termination
(a) Right to Terminate Following Event of Default. If at any time an Event of
Default with respect to a party (the "Defaulting Party") has occurred and is
then continuing, the other party (the "Non-defaulting Party") may, by not more
than 20 days notice to the Defaulting Party specifying the relevant Event of
Default, designate a day not earlier than the day such notice is effective as an
Early Termination Date in respect of all outstanding Transactions. If, however,
"Automatic Early Termination" is specified in the Schedule as applying to a
party, then an Early Termination Date in respect of all outstanding transactions
will occur immediately upon the occurrence with respect to such party of an
Event of Default specified in Section 5(a)(vii)(1), (3), (5), (6) or, to the
extent analogous thereto, (8), and as of the time immediately preceding the
institution of the relevant proceeding or the presentation of the relevant
petition upon the occurrence with respect to such party of an Event of Default
specified in Section 5(a)(vii)(4) or, to the extent analogous thereto, (8).
(b) Right to Terminate Following Termination Event.
(i) Notice. If a Termination Event occurs, an Affected Party will,
promptly upon becoming aware of it, notify the other party, specifying the
nature of that Termination Event and each Affected Transaction and will
also give such other information about that Termination Event as the other
party may reasonably require.
(ii) Transfer to Avoid Termination Event. If either an Illegality under
Section 5(b)(i)(1) or a Tax Event occurs and there is only one Affected
Party, or if a Tax Event Upon Merger occurs and the Burdened Party is the
Affected Party, the Affected Party will, as a condition to its right to
designate an Early Termination Date under Section 6(b)(iv), use all
reasonable efforts (which will not require such party to incur a loss,
excluding immaterial, incidental expenses) to transfer within 20 days
after it gives notice under Section 6(b)(i) all its rights and obligations
under this Agreement in respect of the Affected Transactions to another of
its Offices or Affiliates so that such Termination Event ceases to exist.
If the Affected Party is not able to make such a transfer it will give
notice to the other party to that effect within such 20 day period,
whereupon the other party may effect such a transfer within 30 days after
the notice is given under Section 6(b)(i).
Any such transfer by a party under this Section 6(b)(ii) will be subject
to and conditional upon the prior written consent of the other party,
which consent will not be withheld if such other party's policies in
effect at such time would permit it to enter into transactions with the
transferee on the terms proposed.
(iii) Two Affected Parties. If an Illegality under Section 5(b)(i)(1) or a
Tax Event occurs and there are two Affected Parties, each party will use
all reasonable efforts to reach agreement within 30 days after notice
thereof is given under Section 6(b)(i) on action to avoid that Termination
Event.
(iv) Right to Terminate. If: --
(1) a transfer under Section 6(b)(ii) or an agreement under Section
6(b)(iii), as the case may be, has not been effected with respect to
all Affected Transactions within 30 days after an Affected Party
gives notice under Section 6(b)(i); or
(2) an Illegality under Section 5(b)(i)(2), a Credit Event Upon
Merger or an Additional Termination Event occurs, or a Tax Event
Upon Merger occurs and the Burdened Party is not the Affected Party,
either party in the case of an Illegality, the Burdened Party in the case
of a Tax Event Upon Merger, any Affected Party in the case of a Tax Event
or an Additional Termination Event if there is more than one Affected
Party, or the party which is not the Affected Party in the case of a
Credit Event Upon Merger or an Additional Termination Event if there is
only one Affected Party may, by not more than 20 days notice to the other
party and provided that the relevant Termination Event is then continuing,
designate a day not earlier than the day such notice is effective as an
Early Termination Date in respect of all Affected Transactions.
(c) Effect of Designation.
(i) If notice designating an Early Termination Date is given under Section
6(a) or (b), the Early Termination Date will occur on the date so
designated, whether or not the relevant Event of Default or Termination
Event is then continuing.
(ii) Upon the occurrence or effective designation of an Early Termination
Date, no further payments or deliveries under Section 2(a)(i) or 2(e) in
respect of the Terminated Transactions will be required to be made, but
without prejudice to the other provisions of this Agreement. The amount,
if any, payable in respect of an Early Termination Date shall be
determined pursuant to Section 6(e).
(d) Calculations.
(i) Statement. On or as soon as reasonably practicable following the
occurrence of an Early Termination Date, each party will make the
calculations on its part, if any, contemplated by Section 6(e) and will
provide to the other party a statement (1) showing, in reasonable detail,
such calculations (including all relevant quotations and specifying any
amount payable under Section 6(e)) and (2) giving details of the relevant
account to which any amount payable to it is to be paid. In the absence of
written confirmation from the source of a quotation obtained in
determining a Market Quotation, the records of the party obtaining such
quotation will be conclusive evidence of the existence and accuracy of
such quotation.
(ii) Payment Date. An amount calculated as being due in respect of any
Early Termination Date under Section 6(e) will be payable on the day that
notice of the amount payable is effective (in the case of an Early
Termination Date which is designated or occurs as a result of an Event of
Default) and on the day which is two Local Business Days after the day on
which notice of the amount payable is effective (in the case of an Early
Termination Date which is designated as a result of a Termination Event).
Such amount will be paid together with (to the extent permitted under
applicable law) interest thereon (before as well as after judgment) in the
Termination Currency, from (and including) the relevant Early Termination
Date to (but excluding) the date such amount is paid, at the Applicable
Rate. Such interest will be calculated on the basis of daily compounding
and the actual number of days elapsed.
(e) Payments on Early Termination. If an Early Termination Date occurs, the
following provisions shall apply based on the parties' election in the Schedule
of a payment measure, either "Market Quotation" or "Loss", and a payment method,
either the "First Method" or the "Second Method". If the parties fail to
designate a payment measure or payment method in the Schedule, it will be deemed
that "Market Quotation" or the "Second Method", as the case may be, shall apply.
The amount, if any, payable in respect of an Early Termination Date and
determined pursuant to this Section will be subject to any Set-off.
(i) Events of Default. If the Early Termination Date results from an Event
of Default: --
(1) First Method and Market Quotation. If the First Method and
Market Quotation apply, the Defaulting Party will pay to the
Non-defaulting Party the excess, if a positive number, of (A) the
sum of the Settlement Amount (determined by the Non-defaulting
Party) in respect of the Terminated Transactions and the Termination
Currency Equivalent of the Unpaid Amounts owing to the
Non-defaulting Party over (B) the Termination Currency Equivalent of
the Unpaid Amounts owing to the Defaulting Party.
(2) First Method and Loss. If the First Method and Loss apply, the
Defaulting Party will pay to the Non-defaulting Party, if a positive
number, the Non-Defaulting Party's Loss in respect of this
Agreement.
(3) Second Method and Market Quotation. If the Second Method and
Market Quotation apply, an amount will be payable equal to (A) the
sum of the Settlement Amount (determined by the Non-defaulting
Party) in respect of the Terminated Transactions and the Termination
Currency Equivalent of the Unpaid Amounts owing to the
Non-defaulting Party less (B) the Termination Currency Equivalent of
the Unpaid Amounts owing to the Defaulting Party. If that amount is
a positive number, the Defaulting Party will pay it to the
Non-defaulting Party; if it is a negative number, the Non-defaulting
Party will pay the absolute value of that amount to the Defaulting
Party.
(4) Second Method and Loss. If the Second Method and Loss apply, an
amount will be payable equal to the Non-defaulting Party's Loss in
respect of this Agreement. If that amount is a positive number, the
Defaulting Party will pay it to the Non-defaulting Party; if it is a
negative number, the Non-defaulting Party will pay the absolute
value of that amount to the Defaulting Party.
(ii) Termination Events. If the Early Termination Date results from a
Termination Event: --
(1) One Affected Party. If there is one Affected Party, the amount
payable will be determined in accordance with Section 6(e)(i)(3), if
Market Quotation applies, or Section 6(e)(i)(4), if Loss applies,
except that, in either case, references to the Defaulting Party and
to the Non-defaulting Party will be deemed to be references to the
Affected Party and the party which is not the Affected Party,
respectively, and, if Loss applies and fewer than all the
Transactions are being terminated, Loss shall be calculated in
respect of all Terminated Transactions.
(2) Two Affected Parties. If there are two Affected Parties: --
(A) if Market Quotation applies, each party will determine a
Settlement Amount in respect of the Terminated Transactions,
and an amount will be payable equal to (I) the sum of (a)
one-half of the difference between the Settlement Amount of
the party with the higher Settlement Amount ("X") and the
Settlement Amount of the party with the lower Settlement
Amount ("Y") and (b) the Termination Currency Equivalent of
the Unpaid Amounts owing to X less (II) the Termination
Currency Equivalent of the Unpaid Amounts owing to Y; and
(B) if Loss applies, each party will determine its Loss in
respect of this Agreement (or, if fewer than all the
Transactions are being terminated, in respect of all
Terminated Transactions) and an amount will be payable equal
to one-half of the difference between the Loss of the party
with the higher Loss ("X") and the Loss of the party with the
lower Loss ("Y").
If the amount payable is a positive number, Y will pay it to X; if
it is a negative number, X will pay the absolute value of that
amount to Y.
(iii) Adjustment for Bankruptcy. In circumstances where an Early
Termination Date occurs because "Automatic Early Termination" applies in
respect of a party, the amount determined under this Section 6(e) will be
subject to such adjustments as are appropriate and permitted by law to
reflect any payments or deliveries made by one party to the other under
this Agreement (and retained by such other party) during the period from
the relevant Early Termination Date to the date for payment determined
under Section 6(d)(ii).
(iv) Pre-Estimate. The parties agree that if Market Quotation applies an
amount recoverable under this Section 6(e) is a reasonable pre-estimate of
loss and not a penalty. Such amount is payable for the loss of bargain and
the loss of protection against future risks and except as otherwise
provided in this Agreement neither party will be entitled to recover any
additional damages as a consequence of such losses.
7. Transfer
Subject to Section 6(b)(ii), neither this Agreement nor any interest or
obligation in or under this Agreement may be transferred (whether by way of
security or otherwise) by either party without the prior written consent of the
other party, except that: --
(a) a party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer of all
or substantially all its assets to, another entity (but without prejudice to any
other right or remedy under this Agreement); and
(b) a party may make such a transfer of all or any part of its interest in any
amount payable to it from a Defaulting Party under Section 6(e).
Any purported transfer that is not in compliance with this Section will be void.
8. Contractual Currency
(a) Payment in the Contractual Currency. Each payment under this Agreement
will be made in the relevant currency specified in this Agreement for that
payment (the "Contractual Currency"). To the extent permitted by applicable law,
any obligation to make payments under this Agreement in the Contractual Currency
will not be discharged or satisfied by any tender in any currency other than the
Contractual Currency, except to the extent such tender results in the actual
receipt by the party to which payment is owed, acting in a reasonable manner and
in good faith in converting the currency so tendered into the Contractual
Currency, of the full amount in the Contractual Currency of all amounts payable
in respect of this Agreement. If for any reason the amount in the Contractual
Currency so received falls short of the amount in the Contractual Currency
payable in respect of this Agreement, the party required to make the payment
will, to the extent permitted by applicable law, immediately pay such additional
amount in the Contractual Currency as may be necessary to compensate for the
shortfall. If for any reason the amount in the Contractual Currency so received
exceeds the amount in the Contractual Currency payable in respect of this
Agreement, the party receiving the payment will refund promptly the amount of
such excess.
(b) Judgments. To the extent permitted by applicable law, if any judgment or
order expressed in a currency other than the Contractual Currency is rendered
(i) for the payment of any amount owing in respect of this Agreement, (ii) for
the payment of any amount relating to any early termination in respect of this
Agreement or (iii) in respect of a judgment or order of another court for the
payment of any amount described in (i) or (ii) above, the party seeking
recovery, after recovery in full of the aggregate amount to which such party is
entitled pursuant to the judgment or order, will be entitled to receive
immediately from the other party the amount of any shortfall of the Contractual
Currency received by such party as a consequence of sums paid in such other
currency and will refund promptly to the other party any excess of the
Contractual Currency received by such party as a consequence of sums paid in
such other currency if such shortfall or such excess arises or results from any
variation between the rate of exchange at which the Contractual Currency is
converted into the currency of the judgment or order for the purposes of such
judgment or order and the rate of exchange at which such party is able, acting
in a reasonable manner and in good faith in converting the currency received
into the Contractual Currency, to purchase the Contractual Currency with the
amount of the currency of the judgment or order actually received by such party.
The term "rate of exchange" includes, without limitation, any premiums and costs
of exchange payable in connection with the purchase of or conversion into the
Contractual Currency.
(c) Separate Indemnities. To the extent permitted by applicable law, these
indemnities constitute separate and independent obligations from the other
obligations in this Agreement, will be enforceable as separate and independent
causes of action, will apply notwithstanding any indulgence granted by the party
to which any payment is owed and will not be affected by judgment being obtained
or claim or proof being made for any other sums payable in respect of this
Agreement.
(d) Evidence of Loss. For the purpose of this Section 8, it will be sufficient
for a party to demonstrate that it would have suffered a loss had an actual
exchange or purchase been made.
9. Miscellaneous
(a) Entire Agreement. This Agreement constitutes the entire Agreement and
understanding of the parties with respect to its subject matter and supersedes
all oral communication and prior writings with respect thereto.
(b) Amendments. No amendment, modification or waiver in respect of this
Agreement will be effective unless in writing (including a writing evidenced by
a facsimile transmission) and executed by each of the parties or confirmed by an
exchange of telexes or electronic messages on an electronic messaging system.
(c) Survival of Obligations. Without prejudice to Sections 2(a)(iii) and
6(c)(ii), the obligations of the parties under this Agreement will survive the
termination of any Transaction.
(d) Remedies Cumulative. Except as provided in this Agreement, the rights,
powers, remedies and privileges provided in this Agreement are cumulative and
not exclusive of any rights, powers, remedies and privileges provided by law.
(e) Counterparts and Confirmations.
(i) This Agreement (and each amendment, modification and waiver in respect
of it) may be executed and delivered in counterparts (including by
facsimile transmission), each of which will be deemed an original.
(ii) The parties intend that they are legally bound by the terms of each
Transaction from the moment they agree to those terms (whether orally or
otherwise). A Confirmation shall be entered into as soon as practicable
and may be executed and delivered in counterparts (including by facsimile
transmission) or be created by an exchange of telexes or by an exchange of
electronic messages on an electronic messaging system, which in each case
will be sufficient for all purposes to evidence a binding supplement to
this Agreement. The parties will specify therein or through another
effective means that any such counterpart, telex or electronic message
constitutes a Confirmation.
(f) No Waiver of Rights. A failure or delay in exercising any right, power or
privilege in respect of this Agreement will not be presumed to operate as a
waiver, and a single or partial exercise of any right, power or privilege will
not be presumed to preclude any subsequent or further exercise, of that right,
power or privilege or the exercise of any other right, power or privilege.
(g) Headings. The headings used in this Agreement are for convenience of
reference only and are not to affect the construction of or to be taken into
consideration in interpreting this Agreement.
10. Offices; Multibranch Parties
(a) If Section 10(a) is specified in the Schedule as applying, each party that
enters into a Transaction through an Office other than its head or home office
represents to the other party that, notwithstanding the place of booking office
or jurisdiction of incorporation or organisation of such party, the obligations
of such party are the same as if it had entered into the Transaction through its
head or home office. This representation will be deemed to be repeated by such
party on each date on which a Transaction is entered into.
(b) Neither party may change the Office through which it makes and receives
payments or deliveries for the purpose of a Transaction without the prior
written consent of the other party.
(c) If a party is specified as a Multibranch Party in the Schedule, such
Multibranch Party may make and receive payments or deliveries under any
Transaction through any Office listed in the Schedule, and the Office through
which it makes and receives payments or deliveries with respect to a Transaction
will be specified in the relevant Confirmation.
11. Expenses
A Defaulting Party will, on demand, indemnify and hold harmless the other party
for and against all reasonable out-of-pocket expenses, including legal fees and
Stamp Tax, incurred by such other party by reason of the enforcement and
protection of its rights under this Agreement or any Credit Support Document to
which the Defaulting Party is a party or by reason of the early termination of
any Transaction, including, but not limited to, costs of collection.
12. Notices
(a) Effectiveness. Any notice or other communication in respect of this
Agreement may be given in any manner set forth below (except that a notice or
other communication under Section 5 or 6 may not be given by facsimile
transmission or electronic messaging system) to the address or number or in
accordance with the electronic messaging system details provided (see the
Schedule) and will be deemed effective as indicated:--
(i) if in writing and delivered in person or by courier, on the date it is
delivered;
(ii) if sent by xxxxx, on the date the recipient's answerback is received;
(iii) if sent by facsimile transmission, on the date that transmission is
received by a responsible employee of the recipient in legible form (it
being agreed that the burden of proving receipt will be on the sender and
will not be met by a transmission report generated by the sender's
facsimile machine);
(iv) if sent by certified or registered mail (airmail, if overseas) or the
equivalent (return receipt requested), on the date that mail is delivered
or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date that electronic
message is received,
unless the date of that delivery (or attempted delivery) or that receipt, as
applicable, is not a Local Business Day or that communication is delivered (or
attempted) or received, as applicable, after the close of business on a Local
Business Day, in which case that communication shall be deemed given and
effective on the first following day that is a Local Business Day.
(b) Change of Addresses. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system details at
which notices or other communications are to be given to it.
13. Governing Law and Jurisdiction
(a) Governing Law. This Agreement will be governed by and construed in
accordance with the law specified in the Schedule.
(b) Jurisdiction. With respect to any suit, action or proceedings relating to
this Agreement ("Proceedings"), each party irrevocably:--
(i) submits to the jurisdiction of the English courts, if this Agreement
is expressed to be governed by English law, or to the non-exclusive
jurisdiction of the courts of the State of New York and the United States
District Court located in the Borough of Manhattan in New York City, if
this Agreement is expressed to be governed by the laws of the State of New
York; and
(ii) waives any objection which it may have at any time to the laying of
venue of any Proceedings brought in any such court, waives any claim that
such Proceedings have been brought in an inconvenient forum and further
waives the right to object, with respect to such Proceedings, that such
court does not have any jurisdiction over such party.
Nothing in this Agreement precludes either party from bringing Proceedings in
any other jurisdiction (outside, if this Agreement is expressed to be governed
by English law, the Contracting States, as defined in Section 1(3) of the Civil
Jurisdiction and Judgments Act 1982 or any modification, extension or
re-enactment thereof for the time being in force) nor will the bringing of
Proceedings in any one or more jurisdictions preclude the bringing of
Proceedings in any other jurisdiction.
(c) Service of Process. Each party irrevocably appoints the Process Agent (if
any) specified opposite its name in the Schedule to receive, for it and on its
behalf, service of process in any Proceedings. If for any reason any party's
Process Agent is unable to act as such, such party will promptly notify the
other party and within 30 days appoint a substitute process agent acceptable to
the other party. The parties irrevocably consent to service of process given in
the manner provided for notices in Section 12. Nothing in this Agreement will
affect the right of either party to serve process in any other manner permitted
by law.
(d) Waiver of Immunities. Each party irrevocably waives, to the fullest extent
permitted by applicable law, with respect to itself and its revenues and assets
(irrespective of their use or intended use), all immunity on the grounds of
sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any
court, (iii) relief by way of injunction, order for specific performance or for
recovery of property, (iv) attachment of its assets (whether before or after
judgment) and (v) execution or enforcement of any judgment to which it or its
revenues or assets might otherwise be entitled in any Proceedings in the courts
of any jurisdiction and irrevocably agrees, to the extent permitted by
applicable law, that it will not claim any such immunity in any Proceedings.
14. Definitions
As used in this Agreement:--
"Additional Termination Event" has the meaning specified in Section 5(b).
"Affected Party" has the meaning specified in Section 5(b).
"Affected Transactions" means (a) with respect to any Termination Event
consisting of an Illegality, Tax Event or Tax Event Upon Merger, all
Transactions affected by the occurrence of such Termination Event and (b) with
respect to any other Termination Event, all Transactions.
"Affiliate" means, subject to the Schedule, in relation to any person, any
entity controlled, directly or indirectly, by the person, any entity that
controls, directly or indirectly, the person or any entity directly or
indirectly under common control with the person. For this purpose, "control" of
any entity or person means ownership of a majority of the voting power of the
entity or person.
"Applicable Rate" means:--
(a) in respect of obligations payable or deliverable (or which would have been
but for Section 2(a)(iii)) by a Defaulting Party, the Default Rate;
(b) in respect of an obligation to pay an amount under Section 6(e) of either
party from and after the date (determined in accordance with Section 6(d)(ii))
on which that amount is payable, the Default Rate;
(c) in respect of all other obligations payable or deliverable (or which would
have been but for Section 2(a)(iii)) by a Non-defaulting Party, the Non-default
Rate; and
(d) in all other cases, the Termination Rate.
"Burdened Party" has the meaning specified in Section 5(b).
"Change in Tax Law" means the enactment, promulgation, execution or ratification
of, or any change in or amendment to, any law (or in the application or official
interpretation of any law) that occurs on or after the date on which the
relevant Transaction is entered into.
"consent" includes a consent, approval, action, authorisation, exemption,
notice, filing, registration or exchange control consent.
"Credit Event Upon Merger" has the meaning specified in Section 5(b).
"Credit Support Document" means any agreement or instrument that is specified as
such in this Agreement.
"Credit Support Provider" has the meaning specified in the Schedule.
"Default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the relevant payee (as certified by it) if it
were to fund or of funding the relevant amount plus 1% per annum.
"Defaulting Party" has the meaning specified in Section 6(a).
"Early Termination Date" means the date determined in accordance with Section
6(a) or 6(b)(iv).
"Event of Default" has the meaning specified in Section 5(a) and, if applicable,
in the Schedule.
"Illegality" has the meaning specified in Section 5(b).
"Indemnifiable Tax" means any Tax other than a Tax that would not be imposed in
respect of a payment under this Agreement but for a present or former connection
between the jurisdiction of the government or taxation authority imposing such
Tax and the recipient of such payment or a person related to such recipient
(including, without limitation, a connection arising from such recipient or
related person being or having been a citizen or resident of such jurisdiction,
or being or having been organised, present or engaged in a trade or business in
such jurisdiction, or having or having had a permanent establishment or fixed
place of business in such jurisdiction, but excluding a connection arising
solely from such recipient or related person having executed, delivered,
performed its obligations or received a payment under, or enforced, this
Agreement or a Credit Support Document).
"law" includes any treaty, law, rule or regulation (as modified, in the ease of
tax matters, by the practice of any relevant governmental revenue authority) and
"lawful" and "unlawful" will be construed accordingly.
"Local Business Day" means, subject to the Schedule, a day on which commercial
banks are open for business (including dealings in foreign exchange and foreign
currency deposits) (a) in relation to any obligation under Section 2(a)(i), in
the place(s) specified in the relevant Confirmation or, if not so specified, as
otherwise agreed by the parties in writing or determined pursuant to provisions
contained, or incorporated by reference, in this Agreement, (b) in relation to
any other payment, in the place where the relevant account is located and, if
different, in the principal financial centre, if any, of the currency of such
payment, (c) in relation to any notice or other communication, including notice
contemplated under Section 5(a)(i), in the city specified in the address for
notice provided by the recipient and, in the case of a notice contemplated by
Section 2(b), in the place where the relevant new account is to be located and
(d) in relation to Section 5(a)(v)(2), in the relevant locations for performance
with respect to such Specified Transaction.
"Loss" means, with respect to this Agreement or one or more Terminated
Transactions, as the case may be, and a party, the Termination Currency
Equivalent of an amount that party reasonably determines in good faith to be its
total losses and costs (or gain, in which case expressed as a negative number)
in connection with this Agreement or that Terminated Transaction or group of
Terminated Transactions, as the case may be, including any loss of bargain, cost
of funding or, at the election of such party but without duplication, loss or
cost incurred as a result of its terminating, liquidating, obtaining or
reestablishing any hedge or related trading position (or any gain resulting from
any of them). Loss includes losses and costs (or gains) in respect of any
payment or delivery required to have been made (assuming satisfaction of each
applicable condition precedent) on or before the relevant Early Termination Date
and not made, except so as to avoid duplication, if Section 6(e)(i)(l) or (3) or
6(e)(ii)(2)(A) applies. Loss does not include a party's legal fees and
out-of-pocket expenses referred to under Section 11. A party will determine its
Loss as of the relevant Early Termination Date, or, if that is not reasonably
practicable, as of the earliest date thereafter as is reasonably practicable. A
party may (but need not) determine its Loss by reference to quotations of
relevant rates or prices from one or more leading dealers in the relevant
markets.
"Market Quotation" means, with respect to one or more Terminated Transactions
and a party making the determination, an amount determined on the basis of
quotations from Reference Market-makers. Each quotation will be for an amount,
if any, that would be paid to such party (expressed as a negative number) or by
such party (expressed as a positive number) in consideration of an agreement
between such party (taking into account any existing Credit Support Document
with a respect to the obligations of such party) and the quoting Reference
Market-maker to enter into a transaction (the "Replacement Transaction") that
would have the effect of preserving for such party the economic equivalent of
any payment or delivery (whether the underlying obligation was absolute or
contingent and assuming the satisfaction of each applicable condition precedent)
by the parties under Section 2(a)(i) in respect of such Terminated Transaction
or group of Terminated Transactions that would, but for the occurrence of the
relevant Early Termination Date, have been required after that date. For this
purpose, Unpaid Amounts in respect of the Terminated Transaction or group of
Terminated Transactions are to be excluded but, without limitation, any payment
or delivery that would, but for the relevant Early Termination Date, have been
required (assuming satisfaction of each applicable condition precedent) after
that Early Termination Date is to be included. The Replacement Transaction would
be subject to such determination as such party and the Reference Market-maker
may, in good faith, agree. The party making the determination (or its agent)
will request each Reference Market-maker to provide its quotation to the extent
reasonably practicable as of the same day and time (without regard to different
time zones) on or as soon as reasonably practicable after the relevant Early
Termination Date. The day and time as of which those quotations are to be
obtained will be selected in good faith by the party obliged to make a
determination under Section 6(e), and, if each party is so obliged, after
consultation with the other. If more than three quotations are provided, the
Market Quotation will be the arithmetic mean of the quotations, without regard
to the quotations having the highest and lowest values. If exactly three such
quotations are provided, the Market Quotation will be the quotation remaining
after disregarding the highest and lowest quotations. For this purpose, if more
than one quotation has the same highest value or lowest value, then one of such
quotations shall be disregarded. If fewer than three quotations are provided, it
will be deemed that the Market Quotation in respect of such Terminated
Transaction or group of Terminated Transactions cannot be determined.
"Non-default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the Non-defaulting Party (as certified by it) if
it were to fund the relevant amount.
"Non-defaulting Party" has the meaning specified in Section 6(a).
"Office" means a branch or office of a party, which may be such party's head or
home office.
"Potential Event of Default" means any event which, with the giving of notice or
the lapse of time or both, would constitute an Event of Default.
"Reference Market-makers" means four leading dealers in the relevant market
selected by the party determining a Market Quotation in good faith (a) from
among dealers of the highest credit standing which satisfy all the criteria that
such party applies generally at the time in deciding whether to offer or to make
an extension of credit and (b) to the extent practicable, from among such
dealers having an office in the same city.
"Relevant Jurisdiction" means, with respect to a party, the jurisdictions (a) in
which the party is incorporated, organised, managed and controlled or considered
to have its seat, (b) where an Office through which the party is acting for
purposes of this Agreement is located, (c) in which the party executes this
Agreement and (d) its relation to any payment, from or through which such
payment is made.
"Scheduled Payment Date" means a date on which a payment or delivery is to be
made under Section 2(a)(i) with respect to a Transaction.
"Set-off" means set-off, offset, combination of accounts, right of retention or
withholding or similar right or requirement to which the payer of an amount
under Section 6 is entitled or subject (whether arising under this Agreement,
another contract, applicable law or otherwise) that is exercised by, or imposed
on, such payer.
"Settlement Amount" means, with respect to a party and any Early Termination
Date, the sum of: --
(a) the Termination Currency Equivalent of the Market Quotations (whether
positive or negative) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation is determined; and
(b) such party's Loss (whether positive or negative and without reference to any
Unpaid Amounts) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation cannot be determined or would not (in
the reasonable belief of the party making the determination) produce a
commercially reasonable result.
"Specified Entity" has the meanings specified in the Schedule.
"Specified Indebtedness" means, subject to the Schedule, any obligation (whether
present or future, contingent or otherwise, as principal or surety or otherwise)
in respect of borrowed money.
"Specified Transaction" means, subject to the Schedule, (a) any transaction
(including an agreement with respect thereto) now existing or hereafter entered
into between one party to this Agreement (or any Credit Support Provider of such
party or any applicable Specified Entity of such party) and the other party to
this Agreement (or any Credit Support Provider of such other party or any
applicable Specified Entity of such other party) which is a rate swap
transaction, basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap, equity or equity index option, bond option,
interest rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction, cross-currency rate
swap transaction, currency option or any other similar transaction (including
any option with respect to any of these transactions), (b) any combination of
these transactions and (c) any other transaction identified as a Specified
Transaction in this Agreement or the relevant confirmation.
"Stamp Tax" means any stamp, registration, documentation or similar tax.
"Tax" means any present or future tax, levy, impost, duty, charge, assessment or
fee of any nature (including interest, penalties and additions thereto) that is
imposed by any government or other taxing authority in respect of any payment
under this Agreement other than a stamp, registration, documentation or similar
tax.
"Tax Event" has the meaning specified in Section 5(b).
"Tax Event Upon Merger" has the meaning specified in Section 5(b).
"Terminated Transactions" means with respect to any Early Termination Date (a)
if resulting from a Termination Event, all Affected Transactions and (b) if
resulting from an Event of Default, all Transactions (in either ease) in effect
immediately before the effectiveness of the notice designating that Early
Termination Date (or, if "Automatic Early Termination" applies, immediately
before that Early Termination Date).
"Termination Currency" has the meaning specified in the Schedule.
"Termination Currency Equivalent" means, in respect of any amount denominated in
the Termination Currency, such Termination Currency amount and, in respect of
any amount denominated in a currency other than the Termination Currency (the
"Other Currency"), the amount in the Termination Currency determined by the
party making the relevant determination as being required to purchase such
amount of such Other Currency as at the relevant Early Termination Date, or, if
the relevant Market Quotation or Loss (as the case may be), is determined as of
a later date, that later date, with the Termination Currency at the rate equal
to the spot exchange rate of the foreign exchange agent (selected as provided
below) for the purchase of such Other Currency with the Termination Currency at
or about 11:00 a.m. (in the city in which such foreign exchange agent is
located) on such date as would be customary for the determination of such a rate
for the purchase of such Other Currency for value on the relevant Early
Termination Date or that later date. The foreign exchange agent will, if only
one party is obliged to make a determination under Section 6(e), be selected in
good faith by that party and otherwise will be agreed by the parties.
"Termination Event" means an Illegality, a Tax Event or a Tax Event Upon Merger
or, if specified to be applicable, a Credit Event Upon Merger or an Additional
Termination Event.
"Termination Rate" means a rate per annum equal to the arithmetic mean of the
cost (without proof or evidence of any actual cost) to each party (as certified
by such party) if it were to fund or of funding such amounts.
"Unpaid Amounts" owing to any party means, with respect to an Early Termination
Date, the aggregate of (a) in respect of all Terminated Transactions, the
amounts that became payable (or that would have become payable but for Section
2(a)(iii)) to such party under Section 2(a)(i) on or prior to such Early
Termination Date and which remain unpaid as at such Early Termination Date and
(b) in respect of each Terminated Transaction, for each obligation under Section
2(a)(i) which was (or would have been but for Section 2(a)(iii)) required to be
settled by delivery to such party on or prior to such Early Termination Date and
which has not been so settled as at such Early Termination Date, an amount equal
to the fair market value of that which was (or would have been) required to be
delivered as of the originally scheduled date for delivery, in each ease
together with (to the extent permitted under applicable law) interest, in the
currency of such amounts, from (and including) the date such amounts or
obligations were or would have been required to have been paid or performed to
(but excluding) such Early Termination Date, at the Applicable Rate. Such
amounts of interest will be calculated on the basis of daily compounding and the
actual number of days elapsed. The fair market value of any obligation referred
to in clause (b) above shall be reasonably determined by the party obliged to
make the determination under Section 6(e) or, if each party is so obliged, it
shall be the average of the Termination Currency Equivalents of the fair market
values reasonably determined by both parties.
IN WITNESS WHEREOF the parties have executed this document on the respective
dates specified below with effect from the date specified on the first page of
this document.
XXXXXXX XXXXX MITSUI MARINE GSAMP TRUST 2006-HE3
DERIVATIVE PRODUCTS, L.P.
By: GSMMDPGP, Inc. By: Xxxxx Fargo Bank, National
General Partner Association, not in its individual
capacity but solely as Securities
Administrator, on behalf of GSAMP
By: /s/ Xxxxx Xxxxx Trust 2006-HE3
-------------------------------
Name: Xxxxx Xxxxx By: /s/ Xxxxxxxx Xxxxx
Title: Vice President -----------------------------------
Date: May 26, 2006 Name: Xxxxxxxx Xxxxx
Title: Vice President
Date: May 26, 2006
CONFIRMATION
DATE: May 11, 2006
TO: Xxxxxxx Xxxxx Mortgage Company, L.P. (Account No. 760-02312)
Attention: Xxxxxx Xxxxxxx
TO: Xxxxxxx Xxxxx Mitsui Marine Derivative Products, L.P.
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
FROM: Xxxxxxx Xxxxx Capital Markets, L.P.
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
SUBJECT: Swap Transaction
REF NO: NUUS605AU0 (920000000) / (006 831 671)
------------------------------------------------------------------------------
The purpose of this communication is to set forth the terms and conditions of
the above referenced transaction entered into on the Trade Date specified below
(the "Transaction") between Xxxxxxx Xxxxx Capital Markets, L.P. ("GSCM"),
guaranteed by the Xxxxxxx Xxxxx Group, Inc. ("Goldman Group"), and Xxxxxxx Xxxxx
Mortgage Company ("Counterparty"). This communication constitutes a
"Confirmation" as referred to in paragraph 2. below.
1. The definitions and provisions contained in the 2000 ISDA Definitions (the
"Definitions"), as published by the International Swaps and Derivative
Association, Inc. are incorporated into this Confirmation.
2. This Confirmation evidences a complete and binding agreement between GSCM and
Counterparty as to the terms of this Transaction to which this Confirmation
relates, and this Confirmation evidences the sole Transaction for the benefit of
the GSAMP Trust 2006-HE3 ("GSAMP"). This Transaction shall constitute a
"Transaction" within the scope of, and this Confirmation shall supplement, form
a part of, and be subject to, an agreement in the form of the 1992 ISDA Master
Agreement (Multicurrency-Cross Border) (the "ISDA Form") as if the parties had
executed an agreement in such form effective as of the Trade Date but without
any Schedule except for (i) the election of Loss and Second Method, (ii) New
York law (without regard to the conflicts of law principles) as the governing
law, (iii) US Dollars as the Termination Currency, (iv) the election that
subparagraph (ii) of Section 2(c) will apply to Transactions, (v) only Section
5(a)(i) Failure to Pay and Section 5(a)(vii) Bankruptcy will be applicable to
the parties (all other Events of Default will not apply to either party), (vi)
Section 5(A)(i) is modified by replacing the word "third" in the last line of
Section 5(a)(i) with the word "first", (vii) only Section 5(b)(i) Illegality,
Section 5(b)(ii) Tax Event and Section 5(b)(iii) Tax Event Upon Merger will be
applicable to the parties (all other Termination Events will not apply to either
party), (viii) the Limited Recourse; Non-Petition Provision (as described below
in Paragraph 4B) shall apply and (ix) Set off under Section 6(e) will not apply.
In the event of any inconsistency between the Definitions, the ISDA Form and
this Confirmation, this Confirmation will govern. Notwithstanding the foregoing,
it is understood and agreed that upon the assignment of this Transaction to
GSMMDP and GSAMP pursuant to the terms of paragraph 4(A) hereof, this
Transaction shall be governed by the ISDA Master Agreement between such parties
dated as of May 26, 2006.
3. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Notional Amount: USD 1,573,244,467 (subject to reduction in
accordance with the amortization Schedule set
forth in Annex I)
Trade Date: May 11, 2006
Effective Date: May 26, 2006
Termination Date: May 25, 2011, subject to adjustment in accordance
with the Modified Following Business Day
Convention
Initial Payment USD 135,000 payable by GSCM to Counterparty on May
16, 2006
Floating Amounts:
----------------
Floating Rate Payer: GSCM
Floating Rate Payer
Early Payment Dates: On the day which is one (1) Business Day prior to
each Floating Rate Period End Date.
Floating Rate Option: USD-LIBOR-BBA
Floating Rate
Designated Maturity: 1 Month
Floating Rate Spread: None
Floating Rate Reset
Dates: The first day of each Calculation Period
Floating Rate
Day Count Fraction: Actual/360
Floating Rate
Period End Dates: Monthly, on the 25th day of each month, commencing
on June 25, 2006 and ending on the Termination
Date, subject to adjustment in accordance with the
Modified Following Business Day Convention.
Fixed Amounts:
-------------
Fixed Rate Payer: Counterparty
Fixed Rate Payer
Payment Dates: Monthly, on the 25th day of each month, commencing
on June 25, 2006 and ending on the Termination
Date, subject to adjustment in accordance with the
Modified Following Business Day Convention.
Fixed Rate: 5.21% (subject to adjustment in accordance with
the Schedule set forth in Annex I)
Fixed Rate Day Count
Fraction: Actual/360
Fixed Rate Period End
Dates: Adjusted in accordance with the Modified Following
Business Day Convention.
Business Days: New York and Los Angeles
Calculation Agent: GSCM
4. Additional Provisions:
A. Assignment Provisions: It is acknowledged and agreed by the parties
that this Transaction shall be subject to assignment first by Counterparty to GS
Mortgage Securities Corp., then, simultaneously, (i) by GSCM to Xxxxxxx Xxxxx
Mitsui Marine Derivative Products, L.P. ("GSMMDP") and (ii) by GS Mortgage
Securities Corp. to GSAMP, and by GSAMP, through a collateral assignment, to
Xxxxx Fargo Bank, N.A. (the "Securities Administrator"), as securities
administrator on behalf of the holders of the GSAMP Trust 2006-HE3 (CUSIP
Number: 36244K AA 3; 36244K AB 1; 36244K AC 9; 36244K AD 7; 36244K AE 5; 36244K
AF 2; 36244K AG 0; 36244K AH 8; 36244K AJ 4; 36244K AK 1; 36244K AL 9; 36244K AM
7; 36244K AN 5; 36244K AP 0; 36244K AQ 8; 36244K AV 7; 36244K AW 5; the
"Certificates") (each such assignee is referred to herein as an "Assignee" and
each such assignor is referred to herein as an "Assignor"). This assignments
shall occur on the day the Assignor and Assignee agree to such assignment and
provide written or oral notification of the effective date of assignment to the
relevant constant party, or, in the case of a simultaneous double assignment,
the other assignor and/or assignee, as appropriate (the "Constant Party") (each
such day hereinafter referred to as an "Assignment Date"). Furthermore, with
respect to each assignment of this Transaction to an Assignee, the Assignee
shall accept assignment of this Transaction subject to all terms of this
Confirmation and all references to the term "Counterparty" herein shall be
deemed references to each subsequent assignee of Counterparty and all references
to the term "GSCM" herein shall be deemed references to each subsequent assignee
of "GSCM". On each Assignment Date, Constant Party, the relevant Assignor and
the relevant Assignee, in consideration of the premises and the mutual covenants
contained herein and for other good and valuable consideration received, agree
as follows:
(a) Assignor sells, assigns, transfers, and sets over to Assignee,
its successors and permitted assigns, all of its right, title and interest
in, to , under, and in respect of, this Transaction. Assignor releases and
discharges Constant Party from, and agrees not to make any claim against
Constant Party with respect to, any obligations of Constant Party arising
and to be performed under and in respect of this Transaction after the
Assignment Date. Assignor agrees that Assignee has no liability with
respect to any obligation arising or to be performed under and in respect
of this Transaction prior to or on the Assignment Date.
(b) Assignee accepts such sale, assignment and transfer and assumes
and agrees to perform each and every obligation of Assignor arising and to
be performed under this Transaction after the Assignment Date, with the
same force and effect as if Assignee had been a party to this Transaction
originally; it being understood and agreed that, with respect to the
Securities Administrator as Assignee, the Securities Administrator is an
assignee solely by reason of its capacity as securities administrator (and
not in its individual capacity) and the Securities Administrator in its
individual capacity shall have no obligation or liability for payment of
any indebtedness or expenses and shall not be personally liable for the
breach or failure of any obligation, representation, warranty or covenant
made or undertaken hereunder.
(c) Constant Part consents to the sale, assignment and transfer by
Xxxxxxxx and the assumption by Assignee referred to above. Constant Party
releases and discharges Assignor from, and agrees not to make any claim
against Assignor with respect to, any obligations of Assignor arising and
to be performed under and in respect of this Transaction after the
Assignment Date. Constant party agrees that Assignee has no liability with
respect to any obligation arising or to be performed under and in respect
of this Transaction prior to or on the Assignment Date.
(d) Assignor hereby represents and warrants to, and covenants and
agrees with, Assignee and Constant party that: (i) it is duly organized,
validly existing, and in good standing under the law of the jurisdiction
of its organization; (ii) it has all requisite power and authority to
assign and delegate to Assignee its rights and obligations under this
Transaction as provided herein and has taken all necessary action to
authorize such assignment and delegation; and (iii) such assignment and
delegation is its legal, valid, and binding obligation enforceable against
Assignor in accordance with the terms hereof.
(e) Assignee hereby represents and warrants to, and covenants and
agrees with, Assignor and Constant Party that: (i) it is duly organized,
validly existing, and in good standing under the law of this jurisdiction
of its organization; (ii) it has all requisite power and authority to
assume the rights and obligations of Assignor under this Transaction as
provided herein and perform its obligations under this Transaction and has
taken all necessary action to authorize such assumption and performance;
and (iii) such assumption and this Transaction is its legal, valid, and
binding obligation enforceable against Assignee in accordance with the
terms hereof.
(f) Any additional assignments of this Transaction to a party other
than an Assignee shall require the consent of Constant Party, such consent
not to be unreasonably withheld. Notwithstanding any provision to the
contrary, no additional assignments of this Transaction to a party other
than an Assignee shall be made, and Constant Party shall not consent to
such additional assignments of this Transaction until written confirmation
of consent is received from each rating agency then providing a rating for
the Trust Notes that such assignment will not result in a withdrawal or
downgrade of the rating of the Trust Notes. Furthermore, no amendment of
this Confirmation by an Assignee or other permitted assign shall be made,
and Constant Party shall not consent to such amendment of this
Confirmation, until written confirmation that such amendment will not
result in a withdrawal or downgrade of the rating of the Certificates is
received from the Rating Agencies that are rating the Certificates at the
time of such proposed amendment.
B. Limited Recourse; Non-Petition Provision: To the extent GSAMP or the
Securities Administrator is a counterparty to GSMMDP under the terms of this
Transaction, the obligations of GSAMP hereunder shall be limited recourse
obligations and GSMMDP agrees that it will not, prior to the date that is one
year and one day after the payment in full of all the Certificates (as defined
in the Xxxxxxx, Xxxxx & Co. Prospectus Supplement dated May 23, 2006),
acquiesce, petition or otherwise invoke or cause such permitted assigns to
invoke the process of any governmental authority for the purpose of commencing
or sustaining a case (whether voluntary or involuntary) against such permitted
assigns under any federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of such permitted assigns or any substantial part of its
property or ordering the winding-up or liquidation of the affairs of such
permitted assigns or making an assignment for the benefit of creditors. Nothing
contained herein shall prohibit GSMMDP from submitting a claim or proof of
claim, in any proceeding or process instituted by or against such permitted
assigns.
5. Credit Support Documents: Standard Guaranty of The Xxxxxxx Xxxxx Group,
Inc.
6. The parties hereby agree (a) to check this Confirmation (Reference No.:
NUUS605AU0 (920000000) carefully and immediately upon receipt so that errors or
discrepancies can be promptly identified and rectified and (b) to confirm that
the foregoing correctly sets forth the terms of the agreement between GSCM,
GSMMDP and Counterparty with respect to the particular Transaction to which this
Confirmation relates, by manually signing this Confirmation and providing the
other information requested herein and immediately returning an executed copy to
Swap Administration, facsimile No. 000-000-0000.
Very truly yours,
XXXXXXX XXXXX CAPITAL MARKETS, L.P.
By: Xxxxxxx Xxxxx Capital Markets, L.L.C.
General Partner
By: /s/ Xx Xxxxx
---------------------------------------
Name: Xx Xxxxx
Title: Vice President
Agreed and Accepted By:
XXXXXXX XXXXX MITSUI MARINE DERIVATIVE PRODUCTS, L.P.
By: GSMMDPGP, Inc.
General Partner
By: /s/ Xxxxx Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
Agreed and Accepted By:
Xxxxxxx Xxxxx Mortgage Company, L.P.
By: /s/ Xxxx X. Xxxxx
-----------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
Agreed and Accepted By:
Xxxxx Fargo Bank, N.A., not in its individual capacity but solely as
Securities Administrator, on behalf of GSAMP Trust 2006-HE3
By: /s/ Xxxxxxxx Xxxxx
-----------------------------------
Name: Xxxxxxxx Xxxxx
Title: Vice President
Annex I
Schedule
For the Calculation Period The applicable USD
from and including:* to but excluding:* Notional Amount shall be: Fixed Rate
------------------------------------ ---------------------------- -------------------------- ------------
May 26, 2006 June 25, 2006 1,573,244,467 5.21
June 25, 2006 July 25, 2006 1,543,743,151 5.26
July 25, 2006 August 25, 2006 1,509,366,320 5.31
August 25, 2006 September 25, 2006 1,470,224,322 5.33
September 25, 2006 October 25, 2006 1,426,486,819 5.35
October 25, 2006 November 25, 2006 1,378,354,331 5.37
November 25, 2006 December 25, 2006 1,326,084,697 5.36
December 25, 2006 January 25, 2007 1,269,976,008 5.42
January 25, 2007 February 25, 2007 1,210,789,215 5.34
February 25, 2007 March 25, 2007 1,151,502,690 5.33
March 25, 2007 April 25, 2007 1,095,030,378 5.33
April 25, 2007 May 25, 2007 1,041,237,930 5.32
May 25, 2007 June 25, 2007 989,997,438 5.32
June 25, 2007 July 25, 2007 941,187,127 5.31
July 25, 2007 August 25, 2007 894,691,382 5.3
August 25, 2007 September 25, 2007 850,399,472 5.3
September 25, 2007 October 25, 2007 808,206,309 5.29
October 25, 2007 November 25, 2007 768,011,840 5.29
November 25, 2007 December 25, 2007 729,581,092 5.29
December 25, 2007 January 25, 2008 692,871,804 5.29
January 25, 2008 February 25, 2008 654,332,259 5.3
February 25, 2008 March 25, 2008 588,138,755 5.3
March 25, 2008 April 25, 2008 493,467,318 5.3
April 25, 2008 May 25, 2008 416,578,277 5.31
May 25, 2008 June 25, 2008 367,853,680 5.31
June 25, 2008 July 25, 2008 355,640,742 5.32
July 25, 2008 August 25, 2008 349,379,106 5.32
August 25, 2008 September 25, 2008 330,410,286 5.33
September 25, 2008 October 25, 2008 312,515,239 5.34
October 25, 2008 November 25, 2008 295,623,514 5.34
November 25, 2008 December 25, 2008 279,677,432 5.35
December 25, 2008 January 25, 2009 264,622,687 5.36
January 25, 2009 February 25, 2009 250,407,936 5.37
February 25, 2009 March 25, 2009 236,988,694 5.39
March 25, 2009 April 25, 2009 224,315,795 5.4
April 25, 2009 May 25, 2009 212,346,578 5.41
May 25, 2009 June 25, 2009 201,040,868 5.43
June 25, 2009 July 25, 2009 190,360,827 5.44
July 25, 2009 August 25, 2009 180,270,844 5.45
August 25, 2009 September 25, 2009 170,737,674 5.47
September 25, 2009 October 25, 2009 161,729,311 5.48
October 25, 2009 November 25, 2009 153,215,974 5.49
November 25, 2009 December 25, 2009 145,169,612 5.5
December 25, 2009 January 25, 2010 137,563,795 5.5
January 25, 2010 February 25, 2010 130,299,723 5.51
February 25, 2010 March 25, 2010 123,083,182 5.52
March 25, 2010 April 25, 2010 116,259,508 5.52
April 25, 2010 May 25, 2010 109,806,589 5.53
May 25, 2010 June 25, 2010 103,703,587 5.54
June 25, 2010 July 25, 2010 97,930,865 5.55
July 25, 2010 August 25, 2010 92,469,913 5.56
August 25, 2010 September 25, 2010 87,303,289 5.57
September 25, 2010 October 25, 2010 82,414,548 5.57
October 25, 2010 November 25, 2010 77,788,191 5.58
November 25, 2010 December 25, 2010 73,409,606 5.59
December 25, 2010 January 25, 2011 69,265,015 5.59
January 25, 2011 February 25, 2011 65,340,731 5.6
February 25, 2011 March 25, 2011 61,619,528 5.6
March 25, 2011 April 25, 2011 58,096,302 5.61
April 25, 2011 May 25, 2011 54,759,999 5.61
-------------
* Subject to adjustment in accordance with the Modified Following Business
Day Convention
EXHIBIT Y
==============================================================================
FLOW MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT
XXXXXXX XXXXX MORTGAGE COMPANY
Purchaser
AAMES CAPITAL CORPORATION,
Seller
Dated as of April 1, 2006
Conventional,
Fixed and Adjustable Subprime Rate Residential Mortgage Loans
==============================================================================
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS..................................................
SECTION 2. AGREEMENT TO PURCHASE........................................
SECTION 3. MORTGAGE SCHEDULES...........................................
SECTION 4. PURCHASE PRICE...............................................
SECTION 5. EXAMINATION OF MORTGAGE FILES................................
SECTION 6. CONVEYANCE FROM SELLER TO PURCHASER..........................
Subsection 6.01 Conveyance of Mortgage Loans.............................
Subsection 6.02 Books and Records........................................
Subsection 6.03 Delivery of Mortgage Loan Documents......................
Subsection 6.04 Quality Control Procedures...............................
SECTION 7. SERVICING OF THE MORTGAGE LOANS..............................
SECTION 8. TRANSFER OF SERVICING........................................
SECTION 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLER;
REMEDIES FOR BREACH..........................................
Subsection 9.01 Representations and Warranties Regarding the Seller......
Subsection 9.02 Representations and Warranties Regarding Individual Mortgage
Loans....................................................
Subsection 9.03 Remedies for Breach of Representations and Warranties....
Subsection 9.04 [Reserved.]..............................................
Subsection 9.05 Purchaser's Right to Review..............................
SECTION 10. CLOSING......................................................
SECTION 11. CLOSING DOCUMENTS............................................
SECTION 12. COSTS........................................................
SECTION 13. COOPERATION OF SELLER WITH A RECONSTITUTION..................
SECTION 14. THE SELLER...................................................
Subsection 14.01 Additional Indemnification by the Seller; Third
Party Claims............................................
Subsection 14.02 Merger or Consolidation of the Seller...................
SECTION 15. FINANCIAL STATEMENTS.........................................
SECTION 16. [RESERVED.]..................................................
SECTION 17. NOTICES......................................................
SECTION 18. SEVERABILITY CLAUSE..........................................
SECTION 19. COUNTERPARTS.................................................
SECTION 20. GOVERNING LAW................................................
SECTION 21. INTENTION OF THE PARTIES.....................................
SECTION 22. SUCCESSORS AND ASSIGNS; ASSIGNMENT OF PURCHASE AGREEMENT.....
SECTION 23. WAIVERS......................................................
SECTION 24. EXHIBITS.....................................................
SECTION 25. GENERAL INTERPRETIVE PRINCIPLES..............................
SECTION 26. REPRODUCTION OF DOCUMENTS....................................
SECTION 27. FURTHER AGREEMENTS...........................................
SECTION 28. RECORDATION OF ASSIGNMENTS OF MORTGAGE.......................
SECTION 29. NO SOLICITATION..............................................
SECTION 30. WAIVER OF TRIAL BY JURY......................................
SECTION 31. SUBMISSION TO JURISDICTION; WAIVERS..........................
SECTION 32. CONFIDENTIAL INFORMATION.....................................
SECTION 33. COMPLIANCE WITH REGULATION AB................................
Subsection 33.01 Intent of the Parties; Reasonableness...................
Subsection 33.02 Additional Representations and Warranties of the
Seller..................................................
Subsection 33.03 Information To Be Provided by the Seller................
Subsection 33.04 Indemnification.........................................
EXHIBITS
EXHIBIT A CONTENTS OF EACH MORTGAGE FILE
EXHIBIT B CONTENTS OF EACH CREDIT FILE
EXHIBIT C FORM OF SELLER'S AND INTERIM OFFICER'S CERTIFICATE
EXHIBIT D FORM OF OPINION OF COUNSEL
EXHIBIT E FORM OF SECURITY RELEASE CERTIFICATION
EXHIBIT F FORM OF SECURITY RELEASE CERTIFICATION
EXHIBIT G FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT H ORIGINATOR'S UNDERWRITING GUIDELINES
EXHIBIT I ASSIGNMENT AND CONVEYANCE
EXHIBIT J FORM OF INDEMNIFICATION AGREEMENT
FLOW MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT
This FLOW MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT (the
"Agreement"), dated as of April 1, 2006, by and between Xxxxxxx Xxxxx Mortgage
Company, a New York limited partnership, having an office at 00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (the "Purchaser") and AAMES CAPITAL CORPORATION, a
California corporation, having an office at 000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxxxxx,
Xxxxxxxxxx 00000(the "Seller").
W I T N E S S E T H:
WHEREAS, from time to time, the Seller desires to sell to the
Purchaser, and, from time to time, the Purchaser desires to purchase from the
Seller, certain conventional adjustable and fixed rate residential first and
second lien mortgage loans (the "Mortgage Loans") on a servicing released basis
as described herein, and which shall be delivered as a pool of whole loans;
WHEREAS, each Mortgage Loan is secured by a mortgage, deed of trust
or other security instrument creating a first or second lien on a residential
dwelling located in the jurisdiction indicated on the related Mortgage Loan
Schedule;
WHEREAS, the Purchaser and the Seller wish to prescribe the manner
of the conveyance and control of the Mortgage Loans; and
WHEREAS, following its purchase of the Mortgage Loans from the
Seller, the Purchaser desires to sell some or all of the Mortgage Loans to one
or more purchasers as a whole loan transfer or a public or private, rated or
unrated mortgage pass-through transaction;
NOW, THEREFORE, in consideration of the premises and mutual
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Purchaser and the
Seller agree as follows:
SECTION 1. Definitions.
For purposes of this Agreement the following capitalized terms shall
have the respective meanings set forth below.
Accepted Servicing Practices: With respect to any Mortgage Loan
those mortgage servicing practices of prudent subprime mortgage lending
institutions which service mortgage loans of the same type as such Mortgage Loan
in the jurisdiction where the related Mortgaged Property is located and
incorporating the Delinquency Collection Policies and Procedures.
Actual Principal Balance: As to each Mortgage Loan, (i) the
principal balance of the Mortgage after application of payments of principal
actually received at the related Cut-off Date, minus (ii) all amounts previously
distributed to the Purchaser with respect to the related Mortgage Loan
representing principal payments.
Adjustable Rate Mortgage Loan: An adjustable rate Mortgage Loan
purchased pursuant to this Agreement.
Affiliate: With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Agency Transfer: A Xxxxxx Xxx Transfer or a Freddie Mac Transfer.
Agreement: This Flow Mortgage Loan Purchase and Warranties Agreement
and all amendments hereof and supplements hereto.
ALTA: The American Land Title Association, or any successor thereto.
Appraised Value: The value set forth in an appraisal made in
connection with the origination of the related Mortgage Loan as the value of the
Mortgaged Property.
Assignment and Assumption Agreement: As defined in Section 22.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
the sale of the Mortgage to the Purchaser.
Business Day: Any day other than (i) a Saturday or Sunday, (ii) a
day on which banking and savings and loan institutions in (a) the State of New
York, (b) the state in which the Seller's servicing operations are located or
(c) or (iii) the State in which the Custodian's operations are located, are
authorized or obligated by law or executive order to be closed.
Closing Date: The date or dates set forth on the related Purchase
Price and Terms Agreement on which the Purchaser from time to time shall
purchase and the Seller from time to time shall sell, the Mortgage Loans listed
on the related Mortgage Loan Schedule
CLTV: As of the date of origination and as to any Second Lien
Mortgage Loan, the ratio, expressed as a percentage, of the (a) sum of (i) the
outstanding principal balance of the Second Lien Mortgage Loan as of the date of
origination and (ii) the outstanding principal balance as of the date of
origination of any mortgage loan or mortgage loans that are senior or equal in
priority to the Second Lien Mortgage Loan and which are secured by the same
Mortgaged Property to (b) the lesser of the Appraised Value and the purchase
price of the Mortgaged Property.
Code: Internal Revenue Code of 1986, as amended.
Commission: The United States Securities and Exchange Commission.
Condemnation Proceeds: All awards or settlements in respect of a
Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan Documents.
Convertible Mortgage Loan: Any individual Adjustable Rate Mortgage
Loan purchased pursuant to this Agreement which contains a provision whereby the
Mortgagor is permitted to convert the Adjustable Rate Mortgage Loan to a fixed
rate Mortgage Loan in accordance with the terms of the related Mortgage Note.
Covered Loan: A Mortgage Loan categorized as Covered pursuant to
Appendix E of Standard & Poor's Glossary.
Credit File: The items pertaining to a particular Mortgage Loan
referred to in Exhibit B annexed hereto, and any additional documents required
to be added to the credit File pursuant to this Agreement.
Custodial Account: The separate account or accounts created and
maintained pursuant to the Interim Servicing Agreement (with respect to each
Mortgage Loan, for an interim period, as specified therein).
Custodial Agreement: The agreement between the Purchaser and the
Custodian governing the retention of the originals of each Mortgage Note,
Mortgage, Assignment of Mortgage and other documents constituting the Mortgage
Files.
Custodian: Deutsche Bank National Trust Company (or such other
Custodian as specified in the related Purchase Price and Terms Agreement), or
its successors in interest or permitted assigns, or any successor to the
Custodian under the Custodial Agreement as therein provided or such other
Custodian as Purchaser may designate from time to time.
Cut-off Date: With respect to each Mortgage Loan in a Mortgage Loan
Package, the date set forth on the related Purchase Price and Terms Agreement.
Deemed Material Breach Representation: Each representation and
warranty identified as such in Subsection 9.02.
Deleted Mortgage Loan: A Mortgage Loan that is repurchased or
replaced or to be replaced with a Qualified Substitute Mortgage Loan by the
Seller in accordance with the terms of this Agreement.
Delinquency Collection Policies and Procedures: The delinquency
collection policies and procedures of the Interim Servicer, a copy of which is
attached to the Interim Servicing Agreement as Exhibit 7.
Depositor: The depositor, as such term is defined in Regulation AB,
with respect to any Securitization Transaction.
Due Date: The day of the month on which the Monthly Payment is due
on a Mortgage Loan, exclusive of any days of grace.
Escrow Account: The separate account or accounts created and
maintained pursuant to the Interim Servicing Agreement (with respect to each
Mortgage Loan, for an interim period, as specified therein).
Escrow Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed by
the Mortgagor with the mortgagee pursuant to the Mortgage or any other document.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Xxxxxx Xxx: The Federal National Mortgage Association, or any
successor thereto.
Xxxxxx Xxx Transfer: As defined in Section 13 hereof.
FHA: The Federal Housing Administration, an agency within the United
States Department of Housing and Urban Development, or any successor thereto and
including the Federal Housing Commissioner and the Secretary of Housing and
Urban Development where appropriate under the FHA Regulations.
FHA Loan: A Mortgage Loan which is the subject of an FHA Mortgage
Insurance contract.
FHA Mortgage Insurance: Mortgage insurance authorized under the
National Housing Act, as amended from time to time, and provided by the FHA.
FHA Regulations: The regulations promulgated by the Department of
Housing and Urban Development under the National Housing Act, as amended from
time to time and codified in 24 Code of Federal Regulations, and other
Department of Housing and Urban Development issuances relating to FHA Loans,
including the related handbooks, circulars, notices and mortgagee letters.
FICO: Fair Xxxxx Corporation, or any successor thereto.
Fitch: Fitch, Inc., or its successor in interest.
Fixed Rate Mortgage Loan: A fixed rate mortgage loan purchased
pursuant to this Agreement.
Freddie Mac: The Federal Home Loan Mortgage Corporation, or any
successor thereto.
Freddie Mac Transfer: As defined in Section 13 hereof.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan,
the fixed percentage amount set forth in the related Mortgage Note which amount
is added to the Index in accordance with the terms of the related Mortgage Note
to determine on each Interest Rate Adjustment Date the Mortgage Interest Rate
for such Mortgage Loan.
High Cost Loan: A Mortgage Loan (a) covered by the Home Ownership
and Equity Protection Act of 1994, (b) classified as a "high cost home,"
"threshold," "covered," "high risk home," "predatory" or similar loan under any
other applicable state, federal or local law (or a similarly classified loan
using different terminology under a law imposing heightened regulatory scrutiny
or additional legal liability for residential mortgage loans having high
interest rates, points and/or fees) or (c) categorized as High Cost pursuant to
Appendix E of Standard & Poor's Glossary. For avoidance of doubt, the parties
agree that this definition shall apply to any law regardless of whether such law
is presently, or in the future becomes, the subject of judicial review or
litigation.
Home Loan: A Mortgage Loan categorized as Home Loan pursuant to
Appendix E of Standard & Poor's Glossary.
HUD: The Department of Housing and Urban Development, or any federal
agency or official thereof which may from time to time succeed to the functions
thereof with regard to FHA Mortgage Insurance. The term "HUD," for purposes of
this Agreement, is also deemed to include subdivisions thereof such as the FHA
and Government National Mortgage Association.
Index: With respect to each Adjustable Rate Mortgage Loan, a rate
per annum as specified in the related Mortgage Loan Schedule.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property.
Interest Rate Adjustment Date: With respect to each adjustable rate
Mortgage Loan, the date, specified in the related Mortgage Note and the related
Mortgage Loan Schedule, on which the Mortgage Interest Rate is adjusted.
Interim Funder: With respect to each MERS Designated Mortgage Loan,
the Person named on the MERS(R) System as the interim funder pursuant to the
MERS Procedures Manual.
Interim Servicer: Aames Funding Corporation, a California
corporation, and its successors in interest.
Interim Servicing Agreement: That certain Flow Interim Servicing
Agreement, dated as of the date hereof, by and between the Purchaser and the
Interim Servicer.
Investor: With respect to each MERS Designated Mortgage Loan, the
Person named on the MERS(R) System as the investor pursuant to the MERS
Procedures Manual.
Lifetime Rate Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute maximum Mortgage
Interest Rate thereunder. The Mortgage Interest Rate during the terms of each
Adjustable Rate Mortgage Loan shall not at any time exceed the Mortgage Interest
Rate at the time of origination of such Adjustable Rate Mortgage Loan by more
than the amount per annum set forth on the related Mortgage Loan Schedule.
Limited Documentation Program: The guidelines under which the Seller
generally originates Mortgage Loans principally on the basis of the
Loan-to-Value Ratio of the related Mortgage Loan and the creditworthiness of the
Mortgagor.
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or assignment
of such Mortgage Loan, trustee's sale, foreclosure sale or otherwise or the sale
of the related Mortgaged Property if the Mortgaged Property is acquired in
satisfaction of the Mortgage Loan.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan, the
ratio (expressed as a percentage) of the outstanding principal amount of the
Mortgage Loan as of the related Cut-off Date (unless otherwise indicated), to
the lesser of (a) the Appraised Value of the Mortgaged Property at origination
and (b) if the Mortgage Loan was made to finance the acquisition of the related
Mortgaged Property, the purchase price of the Mortgaged Property.
MERS: MERSCORP, Inc., its successors and assigns.
MERS Designated Mortgage Loan: Mortgage Loans for which (a) the
Interim Servicer has designated or will designate MERS as, and has taken or will
take such action as is necessary to cause MERS to be, the mortgagee of record,
as nominee for the Seller, in accordance with MERS Procedure Manual and (b) the
Interim Servicer has designated or will designate the Custodian as the Investor
on the MERS(R) System.
MERS Procedure Manual: The MERS Procedures Manual, as it may be
amended, supplemented or otherwise modified from time to time.
MERS Report: The report from the MERS(R) System listing MERS
Designated Mortgage Loans and other information.
MERS(R) System: MERS mortgage electronic registry system, as more
particularly described in the MERS Procedures Manual.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Moody's: Xxxxx'x Investors Service, Inc., and any successor thereto.
Mortgage: The mortgage, deed of trust or other instrument securing a
Mortgage Note, which creates a first or second lien on an unsubordinated estate
in fee simple in real property securing the Mortgage Note; except that with
respect to real property located in jurisdictions in which the use of leasehold
estates for residential properties is a widely-accepted practice, the mortgage,
deed of trust or other instrument securing the Mortgage Note may secure and
create a first or second lien upon a leasehold estate of the Mortgagor.
Mortgage File: The items pertaining to a particular Mortgage Loan
referred to in Exhibit A annexed hereto, and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: The annual rate of interest borne on a
Mortgage Note with respect to each Mortgage Loan.
Mortgage Loan: An individual Mortgage Loan which is the subject of
this Agreement, each Mortgage Loan originally sold and subject to this Agreement
being identified on the related Mortgage Loan Schedule, which Mortgage Loan
includes without limitation the Mortgage File, the Credit File, the Servicing
File, the Monthly Payments, Principal Prepayments, Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds, Servicing Rights, Prepayment
Penalties, and all other rights, benefits, proceeds and obligations arising from
or in connection with such Mortgage Loan, excluding replaced or repurchased
mortgage loans.
Mortgage Loan Documents: The documents in the Mortgage File.
Mortgage Loan Package: A pool of Mortgage Loans sold to the
Purchaser by the Seller on a Closing Date.
Mortgage Loan Schedule: The schedule of Mortgage Loans, with respect
to each Mortgage Loan Package, attached as Exhibit A to the related Assignment
and Conveyance, setting forth the following information with respect to each
Mortgage Loan in the related Mortgage Loan Package: (1) the Seller's Mortgage
Loan identifying number; (2) the Mortgagor's name; (3) the street address of the
Mortgaged Property including the city, state and zip code; (4) a code indicating
whether the Mortgaged Property is owner-occupied, a second home or investment
property; (5) the number and type of residential units constituting the
Mortgaged Property (i.e. a single family residence, a 2-4 family residence, a
unit in a condominium project or a unit in a planned unit development,
manufactured housing); (6) the original months to maturity or the remaining
months to maturity from the related Cut-off Date, in any case based on the
original amortization schedule and, if different, the maturity expressed in the
same manner but based on the actual amortization schedule; (7) the LTV and CLTV,
each at the origination; (8) the Mortgage Interest Rate as of the related
Cut-off Date; (9) the date on which the Monthly Payment was due on the Mortgage
Loan and, if such date is not consistent with the Due Date currently in effect,
such Due Date; (10) the stated maturity date; (11) the amount of the Monthly
Payment as of the related Cut-off Date; (12) the last payment date on which a
Monthly Payment was actually applied to pay interest and the outstanding
principal balance; (13) the original principal amount of the Mortgage Loan; (14)
the principal balance of the Mortgage Loan as of the close of business on the
related Cut-off Date, after deduction of payments of principal due and collected
on or before the related Cut-off Date; (15) with respect to Adjustable Rate
Mortgage Loans, the Interest Rate Adjustment Date; (16) with respect to
Adjustable Rate Mortgage Loans, the Gross Margin; (17) with respect to
Adjustable Rate Mortgage Loans, the Lifetime Rate Cap under the terms of the
Mortgage Note; (18) with respect to Adjustable Rate Mortgage Loans, a code
indicating the type of Index; (19) with respect to Adjustable Rate Mortgage
Loans, the Periodic Rate Cap under the terms of the Mortgage Note; (20) with
respect to Adjustable Rate Mortgage Loans, the Periodic Rate Floor under the
terms of the Mortgage Note; (21) the type of Mortgage Loan (i.e., Fixed Rate,
Adjustable Rate, First Lien, Second Lien); (22) a code indicating the purpose of
the loan (i.e., purchase, rate and term refinance, equity take-out refinance);
(23) a code indicating the documentation style (i.e. full, alternative or
reduced); (24) the loan credit classification (as described in the Underwriting
Guidelines); (25) whether such Mortgage Loan provides for a Prepayment Penalty;
(26) the Prepayment Penalty period of such Mortgage Loan, if applicable; (27) a
description of the Prepayment Penalty, if applicable; (28) the Mortgage Interest
Rate as of origination; (29) the credit risk score (FICO score) at origination;
(30) the date of origination; (31) the Mortgage Interest Rate adjustment period;
(32) the Mortgage Interest Rate adjustment percentage; (33) the Mortgage
Interest Rate floor; (34) the Mortgage Interest Rate calculation method (i.e.,
30/360, simple interest, other); (35) a code indicating whether the Mortgage
Loan is a Section 32 Mortgage Loan; (36) [reserved]; (37) [reserved]; (38) the
one-year payment history; (39) the Due Date for the first Monthly Payment; (40)
the original Monthly Payment due; (41) with respect to the related Mortgagor,
the debt-to-income ratio; (42) the Appraised Value of the Mortgaged Property;
and (43) the sales price of the Mortgaged Property if the Mortgage Loan was
originated in connection with the purchase of the Mortgaged Property. With
respect to the Mortgage Loans in the aggregate, the Mortgage Loan Schedule shall
set forth the following information, as of the related Cut-off Date: (1) the
number of Mortgage Loans; (2) the current aggregate outstanding principal
balance of the Mortgage Loans; (3) the weighted average Mortgage Interest Rate
of the Mortgage Loans; and (4) the weighted average maturity of the Mortgage
Loans.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgaged Property: The real property (or leasehold estate, if
applicable) securing repayment of the debt evidenced by a Mortgage Note.
Mortgagor: The obligor on a Mortgage Note.
Officer's Certificate: A certificate signed by the Chairman of the
Board or the Vice Chairman of the Board or a President or a Vice President and
by the Treasurer or the Secretary or one of the Assistant Treasurers or
Assistant Secretaries of the Seller, and delivered to the Purchaser as required
by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be counsel
for the Seller, reasonably acceptable to the Purchaser, provided that any
Opinion of Counsel relating to (a) the qualification of any account required to
be maintained pursuant to this Agreement as an Eligible Account, (b)
qualification of the Mortgage Loans in a REMIC or (c) compliance with the REMIC
Provisions, must be (unless otherwise stated in such Opinion of Counsel) an
opinion of counsel who (i) is in fact independent of the Seller and any master
servicer of the Mortgage Loans, (ii) does not have any material direct or
indirect financial interest in the Seller or any master servicer of the Mortgage
Loans or in an Affiliate of either and (iii) is not connected with the Seller or
any master servicer of the Mortgage Loans as an officer, employee, director or
person performing similar functions.
Periodic Rate Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute maximum amount by
which the Mortgage Interest Rate therein may increase or decrease on an Interest
Rate Adjustment Date above or below the Mortgage Interest Rate previously in
effect. The Periodic Rate Cap for each Adjustable Rate Mortgage Loan is the rate
set forth on the Mortgage Loan Schedule.
Periodic Rate Floor: With respect to each Adjustable Rate Mortgage
Loan, the provision of each Mortgage Note which provides for an absolute maximum
amount by which the Mortgage Interest Rate therein may decrease on an Interest
Rate Adjustment Date below the Mortgage Interest Rate previously in effect.
Person: Any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization, government or any agency or political subdivision thereof.
Preliminary Mortgage Schedule: As defined in Section 3.
Prepayment Penalty: With respect to each Mortgage Loan, the fee, if
any, payable upon the prepayment, in whole or in part, of such Mortgage Loan, as
set forth in the related Mortgage Note.
Principal Prepayment: Any payment or other recovery of principal on
a Mortgage Loan which is received in advance of its scheduled Due Date,
including any Prepayment Penalty or premium thereon and which is not accompanied
by an amount of interest representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment.
Purchase Price: The price paid on the related Closing Date by the
Purchaser to the Seller in exchange for the Mortgage Loans in a Mortgage Loan
Package as calculated in Section 4 of this Agreement.
Purchase Price and Terms Agreement: With respect to each purchase of
a Mortgage Loan Package hereunder, that certain letter agreement setting forth
the general terms and conditions of such transaction consummated herein and
identifying the Mortgage Loans to be purchased hereunder, by and between the
Seller and the Purchaser.
Purchaser: Xxxxxxx Xxxxx Mortgage Company, a New York limited
partnership, and its successors in interest and assigns, and any successor to
the Purchaser under this Agreement as herein provided.
Qualified Appraiser: An appraiser, duly appointed by the Seller, who
had no interest, direct or indirect in the Mortgaged Property or in any loan
made on the security thereof, and whose compensation is not affected by the
approval or disapproval of the Mortgage Loan, and such appraiser and the
appraisal made by such appraiser both satisfy the requirements of Title XI of
the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 and the
regulations promulgated thereunder, all as in effect on the date the Mortgage
Loan was originated.
Qualified Correspondent: Any Person from which the Seller purchased
Mortgage Loans, provided that the following conditions are satisfied: (i) such
Mortgage Loans were originated pursuant to an agreement between the Seller and
such Person that contemplated that such Person would underwrite mortgage loans
from time to time, for sale to the Seller, in accordance with underwriting
guidelines designated by the Seller ("Designated Guidelines") or guidelines that
do not vary materially from such Designated Guidelines; (ii) such Mortgage Loans
were in fact underwritten as described in clause (i) above and were acquired by
the Seller within one hundred eighty (180) days after origination; (iii) either
(x) the Designated Guidelines were, at the time such Mortgage Loans were
originated, used by the Seller in origination of mortgage loans of the same type
as the Mortgage Loans for the Seller's own account or (y) the Designated
Guidelines were, at the time such Mortgage Loans were underwritten, designated
by the Seller on a consistent basis for use by lenders in originating mortgage
loans to be purchased by the Seller; and (iv) the Seller employed, at the time
such Mortgage Loans were acquired by the Seller, pre-purchase or post-purchase
quality assurance procedures (which may involve, among other things, review of a
sample of mortgage loans purchased during a particular time period or through
particular channels) designed to ensure that Persons from which it purchased
mortgage loans properly applied the underwriting criteria designated by the
Seller.
Qualified Substitute Mortgage Loan: A mortgage loan eligible to be
substituted by the Seller for a Deleted Mortgage Loan which must, on the date of
such substitution, (i) have an outstanding principal balance, after deduction of
all scheduled payments due in the month of substitution (or in the case of a
substitution of more than one mortgage loan for a Deleted Mortgage Loan, an
aggregate principal balance), not in excess of the outstanding principal balance
of the Deleted Mortgage Loan; (ii) have a Mortgage Interest Rate not less than
and not more than 1% greater than the Mortgage Interest Rate of the Deleted
Mortgage Loan; (iii) have a remaining term to maturity not greater than and not
more than one (1) year less than that of the Deleted Mortgage Loan (iv) be of
the same type as the Deleted Mortgage Loan (i.e., fixed rate or adjustable rate
with same Periodic Rate Cap, Lifetime Rate Cap, Index and lien priority); and
(v) comply with each representation and warranty (respecting individual Mortgage
Loans) set forth in Section 9 hereof.
Rating Agency: Any of Fitch, Xxxxx'x or Standard & Poor's, or their
respective successors designated by the Purchaser.
Reconstitution: Any Securitization Transaction or Whole Loan
Transfer.
Reconstitution Agreements: The agreement or agreements entered into
by the Seller and the Purchaser and/or certain third parties on the
Reconstitution Date or Dates with respect to any or all of the Mortgage Loans
sold hereunder, in connection with a Whole Loan Transfer, Agency Transfer or a
Securitization Transaction pursuant to Section 13, including, but not limited
to, a seller's warranties and servicing agreement with respect to a Whole Loan
Transfer, and a pooling and servicing agreement and/or seller/servicer
agreements and related custodial/trust agreement and documents with respect to a
Securitization Transaction.
Reconstitution Date: As defined in Section 13.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. xx.xx. 229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or
by the staff of the Commission, or as may be provided by the Commission or its
staff from time to time.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating
to a REMIC, which appear at Section 860A through 860G of Subchapter M of Chapter
1, Subtitle A of the Code, and related provisions and regulations, rulings or
pronouncements promulgated thereunder, as the foregoing may be in effect from
time to time.
Repurchase Price: With respect to any Mortgage Loan for which a
breach of a representation or warranty under this Agreement is found, a price
equal to the outstanding principal balance of the Mortgage Loan to be
repurchased as of the date of repurchase, plus accrued interest thereon at the
Mortgage Interest Rate from the date on which interest had last been paid
through the date of such repurchase, plus the amount of any outstanding advances
owed to any servicer, plus all costs and expenses incurred by the Purchaser or
any servicer arising out of or based upon such breach, including without
limitation costs and expenses incurred in the enforcement of the Seller's
repurchase obligation hereunder plus any costs and damages incurred by the
related trust with respect to any securitization of the Mortgage Loan in
connection with any violation by such Mortgage Loan of any predatory- or
abusive-lending law.
RESPA: Real Estate Settlement Procedures Act, as amended from time
to time.
Second Lien Mortgage Loan: A Mortgage Loan secured by a second lien
Mortgage on the related Mortgaged Property.
Securities Act: The Securities Act of 1933, as amended.
Securitization Transaction: Any transaction involving either (1) a
sale or other transfer of some or all of the Mortgage Loans directly or
indirectly to an issuing entity in connection with an issuance of publicly
offered or privately placed, rated or unrated mortgage-backed securities or (2)
an issuance of publicly offered or privately placed, rated or unrated
securities, the payments on which are determined primarily by reference to one
or more portfolios of residential mortgage loans consisting, in whole or in
part, of some or all of the Mortgage Loans.
Seller: Aames Capital Corporation, its successors in interest and
assigns.
Seller Information: As defined in Subsection 33.04(a).
Servicing Fee: With respect to each Mortgage Loan subject to the
Interim Servicing Agreement, an amount per month as set forth in the Interim
Servicing Agreement.
Servicing File: With respect to each Mortgage Loan, the file
retained by the Interim Servicer consisting of originals of all documents in the
Mortgage File which are not delivered to the Purchaser or the Custodian and
copies of the Mortgage Loan Documents set forth in as provided in Subsection
6.03 hereof.
Servicing Rights: Any and all of the following: (a) any and all
rights to service the Mortgage Loans; (b) any payments to or monies received by
the Seller or the Interim Servicer for servicing the Mortgage Loans; (c) any
late fees, penalties or similar payments with respect to the Mortgage Loans but
not including any Prepayment Penalties; (d) all agreements or documents
creating, defining or evidencing any such servicing rights to the extent they
relate to such servicing rights and all rights of the Seller or Interim Servicer
thereunder; (e) Escrow Payments or other similar payments with respect to the
Mortgage Loans and any amounts actually collected by the Seller or Interim
Servicer with respect thereto; (f) all accounts and other rights to payment
related to any of the property described in this paragraph; and (g) any and all
documents, files, records, servicing files, servicing documents, servicing
records, data tapes, computer records, or other information pertaining to the
Mortgage Loans or pertaining to the past, present or prospective servicing of
the Mortgage Loans.
Sponsor: The sponsor, as such term is defined in Regulation AB, with
respect to any Securitization Transaction.
Standard & Poor's: Standard & Poor's Rating Services, a division of
The XxXxxx-Xxxx Companies Inc., and its successors in interest.
Standard & Poor's Glossary: The Standard & Poor's LEVELS(R)
Glossary, as may be in effect from time to time.
Stated Principal Balance: As to each Mortgage Loan, (i) the
principal balance of the Mortgage Loan at the related Cut-off Date after giving
effect to payments of principal due on or before such date, to the extent
received, minus (ii) all amounts previously distributed to the Purchaser with
respect to the related Mortgage Loan representing payments or recoveries of
principal or advances in lieu thereof.
Static Pool Information: Static pool information as described in
Item 1105(a)(1)-(3) and 1105(c) of Regulation AB.
Successor Servicer: A servicer designated by the Purchaser pursuant
to Section 8 and Subsection 9.03 which is entitled to the benefits of the
indemnifications set forth in Subsections 9.03 and 14.01.
Third-Party Originator: Each Person, other than a Qualified
Correspondent, that originated Mortgage Loans acquired by the Seller.
Transfer Date: With respect to each Mortgage Loan, (a) the date set
forth in the related Purchase Price and Terms Agreement or (b) such other date
as mutually agreed by the Seller and the Purchaser.
Underwriting Guidelines: The underwriting guidelines of the Seller,
a copy of which is attached hereto as Exhibit H as may be updated and
incorporated into Exhibit H from time to time by providing such updates to the
Purchaser.
Whole Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans, other than a Securitization Transaction.
SECTION 2. Agreement to Purchase.
The Seller, on each related Closing Date, agrees to sell, and the
Purchaser agrees to purchase, Mortgage Loans having an aggregate principal
balance on the related Cut-off Date in an amount as set forth in the related
Purchase Price and Terms Agreement, or in such other amount as agreed by the
Purchaser and the Seller as evidenced by the aggregate principal balance of the
Mortgage Loans accepted by the Purchaser on the related Closing Date.
SECTION 3. Mortgage Schedules.
The Seller shall provide the Purchaser with certain information
constituting a preliminary listing of the Mortgage Loans to be purchased on the
related Closing Date in accordance with the related Purchase Price and Terms
Agreement and this Agreement (a "Preliminary Mortgage Schedule").
The Seller shall deliver the related Mortgage Loan Schedule for the
Mortgage Loans to be purchased on the related Closing Date to the Purchaser at
least two (2) Business Days prior to the related Closing Date. The related
Mortgage Loan Schedule shall be the Preliminary Mortgage Schedule with those
Mortgage Loans which have not been funded prior to the related Closing Date
deleted.
SECTION 4. Purchase Price.
The Purchase Price for each Mortgage Loan shall be the percentage of
par as stated in the related Purchase Price and Terms Agreement (subject to
adjustment as provided therein), multiplied by the Stated Principal Balance, as
of the related Cut-off Date, of the Mortgage Loans, after application of
payments of principal actually received on or before the related Cut-off Date.
In addition to the Purchase Price as described above, the Purchaser
shall pay to the Seller, on the related Closing Date, accrued interest on the
Stated Principal Balance of the related Mortgage Loans as of the related Cut-off
Date at the weighted average Mortgage Interest Rate of those Mortgage Loans from
the date interest was paid through on the Mortgage Loan through the day prior to
the related Closing Date, inclusive. The Purchase Price plus accrued interest as
set forth in the preceding paragraph shall be paid to the Seller by wire
transfer of immediately available funds to an account designated by the Seller
in writing.
The Purchaser shall be entitled to (1) all principal received after
the related Cut-off Date, (2) all other recoveries of late charges, prepayment
penalties, assumption fees or other charges collected after the related Cut-off
Date, and (3) all payments of interest on the Mortgage Loans at the Mortgage
Interest Rate.
SECTION 5. Examination of Mortgage Files.
At least five (5) Business Days prior to the related Closing Date,
the Seller shall deliver to the Purchaser or its designee in escrow, for
examination with respect to each Mortgage Loan in the related Mortgage Loan
Package to be purchased, the related Mortgage File, including a copy of the
Assignment of Mortgage, pertaining to each Mortgage Loan.
At least five (5) Business Days prior to the related Closing Date,
with respect to each Mortgage Loan in the related Mortgage Loan Package to be
purchased, the Seller shall make the related Servicing Files and Credit Files
available to the Purchaser for examination at such other location as shall
otherwise be acceptable to the Purchaser.
Such examination of the Mortgage Files may be made by the Purchaser
or its designee at any reasonable time before or after the related Closing Date.
If the Purchaser makes such examination prior to the related Closing Date and
determines, in its sole discretion, that any Mortgage Loans are unacceptable to
the Purchaser for any reason, such Mortgage Loans shall be deleted from the
related Mortgage Loan Schedule, and may be replaced by a Qualified Substitute
Mortgage Loan (or Loans) acceptable to the Purchaser. The Purchaser may, at its
option and without notice to the Seller, purchase some or all of the Mortgage
Loans without conducting any partial or complete examination. The fact that the
Purchaser or its designee has conducted or has failed to conduct any partial or
complete examination of the Mortgage Files or the Credit Files shall not affect
the Purchaser's (or any of its successor's) rights to demand repurchase,
substitution or other relief as provided herein.
In the event that the Seller fails to deliver the Credit Files with
respect to any Mortgage Loan after the related Closing Date, the Seller shall,
upon the request of the Purchaser, repurchase such Mortgage Loan at the price
and in the manner specified in Subsection 9.03.
SECTION 6. Conveyance from Seller to Purchaser.
Subsection 6.01 Conveyance of Mortgage Loans.
The Seller, on each related Closing Date, does hereby sell,
transfer, assign, set over and convey to the Purchaser, without recourse, but
subject to the terms of this Agreement, all rights, title and interest of the
Seller in and to the Mortgage Loans in the related Mortgage Loan Package, and
the Mortgage Files and all rights and obligations arising under the documents
contained therein for each Mortgage Loan in the related Mortgage Loan Package.
Subsection 6.02 Books and Records.
Record title to each Mortgage as of the related Closing Date shall
be in the name of MERS, the Seller, an Affiliate of the Seller, the Purchaser or
one or more designees of the Purchaser, as the Purchaser shall select.
Notwithstanding the foregoing, each Mortgage and related Mortgage Note shall be
possessed solely by the Purchaser or the appropriate designee of the Purchaser,
as the case may be. All rights arising out of the Mortgage Loans including, but
not limited to, all funds received by the Seller after the related Cut-off Date
on or in connection with a Mortgage Loan shall be vested in the Purchaser or one
or more designees of the Purchaser; provided, however, that all funds received
on or in connection with a Mortgage Loan shall be received and held by the
Seller in trust for the benefit of the Purchaser or the appropriate designee of
the Purchaser, as the case may be, as the owner of the Mortgage Loans pursuant
to the terms of this Agreement.
The sale of each Mortgage Loan shall be reflected on the Seller's
balance sheet and other financial statements as a sale of assets by the Seller.
The Seller shall be responsible for maintaining, and shall maintain,
a complete set of books and records for each Mortgage Loan which shall be marked
clearly to reflect the ownership of each Mortgage Loan by the Purchaser. In
particular, the Seller shall maintain in its possession, available for
inspection by the Purchaser, and shall deliver to the Purchaser upon demand,
evidence of compliance with all federal, state and local laws, rules and
regulations, and requirements of prudent subprime mortgage lenders making
mortgage loans similar to the Mortgage Loans, including but not limited to
documentation as to the method used in determining the applicability of the
provisions of the National Flood Insurance Act of 1968, as amended, to the
Mortgaged Property, documentation evidencing insurance coverage and periodic
inspection reports, as required by prudent subprime mortgage lenders making
mortgage loans similar to the Mortgage Loans. To the extent that original
documents are not required for purposes of realization of Liquidation Proceeds
or Insurance Proceeds, documents maintained by the Seller may be in the form of
microfilm or microfiche so long as the Seller complies with the requirements of
the prudent subprime mortgage lenders making mortgage loans similar to the
Mortgage Loans.
Subsection 6.03 Delivery of Mortgage Loan Documents.
The Seller shall deliver and release to the Custodian no later than
five (5) Business Days prior to the related Closing Date the Mortgage Files with
respect to each Mortgage Loan in the related Mortgage Loan Package.
The Custodian shall certify its receipt of all such Mortgage Loan
Documents required to be delivered pursuant to the Custodial Agreement for the
related Closing Date, as evidenced by the Initial Certification of the Custodian
in the form annexed to the Custodial Agreement.
The Seller shall forward to the Custodian, or to such other Person
as the Purchaser shall designate in writing, original documents evidencing an
assumption, modification, consolidation or extension of any Mortgage Loan
entered into in accordance with this Agreement within two (2) weeks of their
execution, provided, however, that the Seller shall provide the Custodian, or to
such other Person as the Purchaser shall designate in writing, with a certified
true copy of any such document submitted for recordation within two (2) weeks of
its execution, and shall promptly provide the original of any document submitted
for recordation or a copy of such document certified by the appropriate public
recording office to be a true and complete copy of the original within ninety
(90) days of its submission for recordation.
In the event any document listed on Exhibit A as constituting a part
of the Mortgage Files and required to be delivered to the Custodian pursuant to
this Subsection 6.03, including an original or copy of any document submitted
for recordation to the appropriate public recording office, is not so delivered
to the Custodian, or to such other Person as the Purchaser shall designate in
writing, on the related Closing Date (other than with respect to the Assignments
of Mortgage which shall be delivered to the Custodian in blank on or prior to
the related Closing Date and recorded subsequently by the Purchaser or its
designee or documents submitted for recordation to the appropriate public
recording office), and in the event that the Seller does not cure such failure
within thirty (30) days of discovery or receipt of written notification of such
failure from the Purchaser, the related Mortgage Loan shall, upon the request of
the Purchaser, be repurchased by the Seller at the price and in the manner
specified in Subsection 9.03. The foregoing repurchase obligation shall not
apply in the event that the Seller cannot deliver an original document submitted
for recordation to the appropriate public recording office within the specified
period due to a delay caused by the recording office in the applicable
jurisdiction; provided that (i) the Seller shall instead deliver a recording
receipt of such recording office or, if such recording receipt is not available,
an officer's certificate of an officer of the Seller, confirming that such
documents have been accepted for recording; provided that, upon request of the
Purchaser and delivery by the Purchaser to the Seller of a schedule of the
Mortgage Loans, the Seller shall reissue and deliver to the Purchaser or its
designee said officer's certificate and (ii) such document is delivered within
twelve (12) months of the related Closing Date.
The Seller shall pay all initial recording, registration or transfer
fees, if any, for the assignments of mortgage and any other fees or costs in
transferring all original documents to the Custodian or, upon written request of
the Purchaser, to the Purchaser or the Purchaser's designee. The Purchaser or
the Purchaser's designee shall be responsible for recording the Assignments of
Mortgage and shall be reimbursed by the Seller for the costs associated
therewith pursuant to the preceding sentence.
Subsection 6.04 Quality Control Procedures.
The Seller shall have an internal quality control program that
verifies, on a regular basis, the existence and accuracy of the legal documents,
credit documents, property appraisals, and underwriting decisions. The program
shall include evaluating and monitoring the overall quality of the Seller's loan
production and the servicing activities of the Interim Servicer. The program is
to ensure that the Mortgage Loans are originated and serviced in accordance with
Accepted Servicing Standards and the Underwriting Guidelines; guard against
dishonest, fraudulent, or negligent acts; and guard against errors and omissions
by officers, employees, or other authorized persons.
SECTION 7. Servicing of the Mortgage Loans.
The Mortgage Loans have been sold by the Seller to the Purchaser on
a servicing released basis. Subject to and upon the terms and conditions of this
Agreement, the Seller hereby sells, transfers, assigns, conveys and delivers to
the Purchaser the Servicing Rights.
The Purchaser shall retain the Interim Servicer as contract servicer
of the Mortgage Loans for an interim period pursuant to and in accordance with
the terms and conditions contained in the Interim Servicing Agreement (with
respect to each Mortgage Loan, for an interim period, as specified therein). The
Purchaser and Interim Servicer shall execute the Interim Servicing Agreement on
the date hereof. Pursuant to the Interim Servicing Agreement, the Interim
Servicer shall begin servicing the Mortgage Loans on behalf of the Purchaser and
shall be entitled to the Servicing Fee with respect to such Mortgage Loans from
the related Closing Date until the related Transfer Date.
SECTION 8. Transfer of Servicing.
On the related Transfer Date, the Purchaser, or its designee, shall
assume all servicing responsibilities related to, and the Seller shall cause the
Interim Servicer to cease all servicing responsibilities related to the Mortgage
Loans. The related Transfer Date shall be the date determined in accordance with
the Interim Servicing Agreement (with respect to each Mortgage Loan, for an
interim period, as specified therein).
On or prior to the related Transfer Date, the Seller shall cause the
Interim Servicer to, at its sole cost and expense, take such steps as may be
necessary or appropriate to effectuate and evidence the transfer of the
servicing of the related Mortgage Loans to the Successor Servicer, including but
not limited to the following:
(a) Notice to Mortgagors. The Seller shall cause the Interim
Servicer to mail to the Mortgagor of each related Mortgage Loan a letter
advising such Mortgagor of the transfer of the servicing of the related Mortgage
Loan to the Purchaser, or its designee, in accordance with the Xxxxxxxx Xxxxxxxx
National Affordable Housing Act of 1990, as amended; provided, however, the
content and format of the letter shall have the prior approval of the Purchaser.
The Seller shall cause the Interim Servicer to provide the Purchaser with copies
of all such related notices no later than the related Transfer Date.
(b) Notice to Taxing Authorities and Insurance Companies. The Seller
shall cause the Interim Servicer to transmit to the applicable taxing
authorities and insurance companies (including primary mortgage insurance policy
insurers, if applicable) and/or agents, notification of the transfer of the
servicing to the Purchaser, or its designee, and instructions to deliver all
notices, tax bills and insurance statements, as the case may be, to the
Purchaser or its designee from and after the related Transfer Date. The Seller
shall cause the Interim Servicer to provide the Purchaser and its designee with
copies of all such notices no later than the related Transfer Date.
(c) Delivery of Servicing Records. The Seller shall cause the
Interim Servicer to forward to the Purchaser, or its designee, all servicing
records and the Servicing File in the Seller's possession relating to each
related Mortgage Loan including the information enumerated in the Interim
Servicing Agreement (with respect to each such Mortgage Loan, for an interim
period, as specified therein).
(d) Escrow Payments. The Seller shall cause the Interim Servicer to
provide the Purchaser, or its designee, with immediately available funds by wire
transfer in the amount of the net Escrow Payments and suspense balances and all
loss draft balances associated with the related Mortgage Loans. The Seller shall
cause the Interim Servicer to provide the Purchaser with an accounting statement
of Escrow Payments and suspense balances and loss draft balances sufficient to
enable the Purchaser to reconcile the amount of such payment with the accounts
of the Mortgage Loans. Additionally, the Seller shall cause the Interim Servicer
to wire transfer to the Purchaser the amount of any agency, trustee or prepaid
Mortgage Loan payments and all other similar amounts held by the Seller.
(e) Payoffs and Assumptions. The Seller shall cause the Interim
Servicer to provide to the Purchaser, or its designee, copies of all assumption
and payoff statements generated by the Seller on the related Mortgage Loans from
the related Cut-off Date to the related Transfer Date.
(f) Mortgage Payments Received Prior to Transfer Date. Prior to the
related Transfer Date, the Seller shall cause all payments received by the
Interim Servicer on each related Mortgage Loan to be properly applied to the
account of the particular Mortgagor.
(g) Mortgage Payments Received After Transfer Date. The Seller shall
cause the amount of any related Monthly Payments received by the Interim
Servicer after the related Transfer Date to be forwarded to the Purchaser by
overnight mail on or prior to the date which is one (1) Business Day after the
date of receipt. The Seller shall cause the Interim Servicer to notify the
Purchaser of the particulars of the payment, which notification requirement
shall be satisfied if the Seller forwards with its payment sufficient
information to permit appropriate processing of the payment by the Purchaser.
The Seller shall cause the Interim Servicer to assume full responsibility for
the necessary and appropriate legal application of such Monthly Payments
received by the Interim Servicer after the related Transfer Date with respect to
related Mortgage Loans then in foreclosure or bankruptcy; provided, for purposes
of this Agreement, necessary and appropriate legal application of such Monthly
Payments shall include, but not be limited to, endorsement of a Monthly Payment
to the Purchaser with the particulars of the payment such as the account number,
dollar amount, date received and any special Mortgagor application instructions
and the Seller shall cause the Interim Servicer to comply with the foregoing
requirements with respect to all Monthly Payments received by the it after the
related Transfer Date.
(h) Misapplied Payments. Misapplied payments shall be processed as
follows:
1. All parties shall cooperate in correcting misapplication
errors;
2. The party receiving notice of a misapplied payment
occurring prior to the related Transfer Date and discovered after
the related Transfer Date shall immediately notify the other party;
3. If a misapplied payment which occurred prior to the related
Transfer Date cannot be identified and said misapplied payment has
resulted in a shortage in a Custodial Account or Escrow Account, the
Seller shall cause the Interim Servicer to be liable for the amount
of such shortage. The Seller shall cause the Interim Servicer to
reimburse the Purchaser for the amount of such shortage within
thirty (30) days after receipt of written demand therefor from the
Purchaser;
4. If a misapplied payment which occurred prior to the related
Transfer Date has created an improper Purchase Price as the result
of an inaccurate outstanding principal balance, a check shall be
issued to the party shorted by the improper payment application
within five (5) Business Days after notice thereof by the other
party; and
5. Any check issued under the provisions of this Section 8(h)
shall be accompanied by a statement indicating the corresponding
Seller and Interim Servicer and/or the Purchaser Mortgage Loan
identification number and an explanation of the allocation of any
such payments.
(i) Books and Records. On the related Transfer Date, the Seller
shall cause the books, records and accounts of the Interim Servicer with respect
to the related Mortgage Loans to be in accordance with all Accepted Servicing
Practices.
(j) Reconciliation. The Seller shall cause the Interim Servicer to
on or before the related Transfer Date, reconcile principal balances and make
any monetary adjustments necessary to accurately and correctly reconcile all
servicing activities with respect to such Mortgage Loan, including all payments
received and all advances made relating to such Mortgage Loan. Any such monetary
adjustments will be transferred between the Interim Servicer and the Purchaser
as appropriate.
(k) IRS Forms. The Seller shall cause the Interim Servicer to file
all IRS Forms 1099, 1099A, 1098 or 1041 and K-1 which are required to be filed
on or before the related Transfer Date in relation to the servicing and
ownership of the related Mortgage Loans. The Seller shall cause the Interim
Servicer to provide copies of such forms to the Purchaser upon request and shall
or shall cause the Interim Servicer to reimburse the Purchaser for any costs or
penalties incurred by the Purchaser due to the Interim Servicer's failure to
comply with this paragraph.
SECTION 9. Representations, Warranties and Covenants of the Seller;
Remedies for Breach.
Subsection 9.01 Representations and Warranties Regarding the Seller.
The Seller represents, warrants and covenants to the Purchaser, its
successors and assigns and the Successor Servicer that as of the date hereof and
as of each Closing Date:
(a) Due Organization and Authority. The Seller is a corporation duly
organized, validly existing and in good standing under the laws of the state of
California and has all licenses necessary to carry on its business as now being
conducted and is licensed, qualified and in good standing in each state wherein
it owns or leases any material properties or where a Mortgaged Property is
located, if the laws of such state require licensing or qualification in order
to conduct business of the type conducted by the Seller, and in any event the
Seller is in compliance with the laws of any such state to the extent necessary
to ensure the enforceability of the related Mortgage Loan in accordance with the
terms of this Agreement; the Seller has the full power, authority and legal
right to hold, transfer and convey the Mortgage Loans and to execute and deliver
this Agreement and to perform its obligations hereunder; the execution, delivery
and performance of this Agreement (including all instruments of transfer to be
delivered pursuant to this Agreement) by the Seller and the consummation of the
transactions contemplated hereby have been duly and validly authorized; this
Agreement and all agreements contemplated hereby have been duly executed and
delivered and constitute the valid, legal, binding and enforceable obligations
of the Seller, regardless of whether such enforcement is sought in a proceeding
in equity or at law; and all requisite corporate action has been taken by the
Seller to make this Agreement and all agreements contemplated hereby valid and
binding upon the Seller in accordance with their terms;
(b) Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in the ordinary course of
business of the Seller, and the transfer, assignment and conveyance of the
Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are
not subject to the bulk transfer or any similar statutory provisions in effect
in any applicable jurisdiction;
(c) No Conflicts. Neither the execution and delivery of this
Agreement, the acquisition or origination of the Mortgage Loans by the Seller,
the sale of the Mortgage Loans to the Purchaser, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with the
terms and conditions of this Agreement, will conflict with or result in a breach
of any of the terms, conditions or provisions of the Seller's charter or by-laws
or other organizational documents or any legal restriction or any agreement or
instrument to which the Seller is now a party or by which it is bound, or
constitute a default or result in an acceleration under any of the foregoing, or
result in the violation of any law, rule, regulation, order, judgment or decree
to which the Seller or its property is subject, or result in the creation or
imposition of any lien, charge or encumbrance that would have an adverse effect
upon any of its properties pursuant to the terms of any mortgage, contract, deed
of trust or other instrument, or impair the ability of the Purchaser to realize
on the Mortgage Loans, impair the value of the Mortgage Loans, or impair the
ability of the Purchaser to realize the full amount of any insurance benefits
accruing pursuant to this Agreement;
(d) Ability To Perform; Solvency. The Seller does not believe, nor
does it have any reason or cause to believe, that it cannot perform each and
every covenant contained in this Agreement. The Seller is solvent and the sale
of the Mortgage Loans will not cause the Seller to become insolvent. The sale of
the Mortgage Loans is not undertaken with the intent to hinder, delay or defraud
any of Seller's creditors;
(e) No Litigation Pending. Except as set forth in the related
Purchase Price and Terms Agreement, there is no action, suit, proceeding or
investigation pending or threatened against the Seller, before any court,
administrative agency or other tribunal asserting the invalidity of this
Agreement, seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or which, either in any one instance or in the
aggregate, may result in any material adverse change in the business,
operations, financial condition, properties or assets of the Seller, or in any
material impairment of the right or ability of the Seller to carry on its
business substantially as now conducted, or in any material liability on the
part of the Seller, or which would draw into question the validity of this
Agreement or the Mortgage Loans or of any action taken or to be taken in
connection with the obligations of the Seller contemplated herein, or which
would be likely to impair materially the ability of the Seller to perform under
the terms of this Agreement. There is no action, suit, proceeding or
investigation pending against the Seller with respect to the Mortgage Loans
relating to fraud, predatory lending, servicing or closing practices;
(f) No Consent Required. No consent, approval, authorization or
order of, or registration or filing with, or notice to any court or governmental
agency or body including HUD, the FHA or the VA is required for the execution,
delivery and performance by the Seller of or compliance by the Seller with this
Agreement or the Mortgage Loans, the delivery of a portion of the Mortgage Files
to the Custodian or the sale of the Mortgage Loans or the consummation of the
transactions contemplated by this Agreement, or if required, such approval has
been obtained prior to the related Closing Date;
(g) Selection Process. The Mortgage Loans were selected from among
the outstanding one- to four-family mortgage loans in the Seller's portfolio at
the related Closing Date as to which the representations and warranties set
forth in Subsection 9.02 could be made and such selection was not made in a
manner so as to affect adversely the interests of the Purchaser;
(h) Delivery to the Custodian. The Mortgage Note, the Mortgage, the
Assignment of Mortgage and any other documents required to be delivered with
respect to each Mortgage Loan pursuant to the Custodial Agreement, and any other
documents required to be delivered with respect to each Mortgage Loan pursuant
to Subsection 6.03 hereof, shall be delivered to the Custodian. With respect to
each Mortgage Loan, the Seller will be in possession of a complete Mortgage File
in compliance with Exhibit A hereto, except for such documents as will be
delivered to the Custodian;
(i) Mortgage Loan Characteristics. The characteristics of the
Mortgage Loans are as set forth on the description of the pool characteristics
for the Mortgage Loans delivered pursuant to Section 11 on the related Closing
Date in the form attached as Exhibit 2 to the Assignment and Conveyance hereto;
(j) No Untrue Information. Neither this Agreement nor any
information, statement, tape, diskette, report, form, or other document
furnished or to be furnished pursuant to this Agreement or any Reconstitution
Agreement or in connection with the transactions contemplated hereby (including
any Securitization Transaction, Whole Loan Transfer or Agency Transfer) contains
or will contain any untrue statement of fact or omits or will omit to state a
fact necessary to make the statements contained herein or therein not
misleading;
(k) Financial Statements. The Seller has delivered to the Purchaser
financial statements as to its last three (3) complete fiscal years and any
later quarter ended more than sixty (60) days prior to the execution of this
Agreement. All such financial statements fairly present the pertinent results of
operations and changes in financial position for each of such periods and the
financial position at the end of each such period of the Seller and its
subsidiaries and have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods involved,
except as set forth in the notes thereto. There has been no change in the
business, operations, financial condition, properties or assets of the Seller
since the date of the Seller's financial statements that would have a material
adverse effect on its ability to perform its obligations under this Agreement.
The Seller has completed any forms requested by the Purchaser in a timely manner
and in accordance with the provided instructions;
(l) Loan Experience. The Seller has delivered information as to its
loan gain and loss experience in respect of foreclosures, its loan delinquency
experience for the immediately preceding three-year period, prepayment speed and
individual loan loss severities and delinquency histories for at least the
immediately preceding year, in each case with respect to mortgage loans owned by
it and such mortgage loans serviced for others during such period, and all such
information so delivered shall be true and correct in all material respects;
(m) No Brokers. The Seller has not dealt with any broker, investment
banker, agent or other person that may be entitled to any commission or
compensation in connection with the sale of the Mortgage Loans;
(n) Sale Treatment. The Seller intends to reflect the transfer of
the Mortgage Loans as a sale on the books and records of the Seller and the
Seller has determined that the disposition of the Mortgage Loans pursuant to
this Agreement will be afforded sale treatment for tax and accounting purposes;
(o) Owner of Record. Except for a MERS Designated Mortgage Loan, the
Seller is the owner of record of each Mortgage and the indebtedness evidenced by
each Mortgage Note, except for any Assignments of Mortgage which have been sent
for recording, and upon recordation the Seller will be the owner of record of
each Mortgage and the indebtedness evidenced by each Mortgage Note, and upon the
sale of the Mortgage Loans to the Purchaser, the Seller will retain the Mortgage
Files with respect thereto in trust only for the purpose of servicing and
supervising the servicing of each Mortgage Loan;
(p) Reasonable Purchase Price. The Seller deems the consideration
received upon the sale of the Mortgage Loans under this Agreement to be fair
consideration and reasonably equivalent value for the Mortgage Loans; (
q) Seller's Origination. The Seller's decision to originate any
mortgage loan or to deny any mortgage loan application is an independent
decision based upon Xxxxxx's underwriting guidelines, and is in no way made as a
result of Purchaser's decision to purchase, or not to purchase, or the price
Purchaser may offer to pay for, any such mortgage loan, if originated;
(r) Reports. On or prior to the date which is two (2) Business Days
after the related Closing Date, Seller will provide the Custodian and the
Purchaser with a MERS Report reflecting the Custodian as Investor with respect
to each MERS Designated Mortgage Loan and no Person as Interim Funder for each
MERS Designated Mortgage Loan;
(s) MERS Designations. With respect to each MERS Designated Mortgage
Loan, on the related Closing Date, the Seller has initiated the process of
designating the Custodian as the Investor on the MERS(R) System. With respect to
each MERS Designated Mortgage Loan, no Person is listed as Interim Funder on the
MERS(R) System.
Subsection 9.02 Representations and Warranties Regarding Individual
Mortgage Loans.
The Seller hereby represents and warrants to the Purchaser, its
successors and assigns and the Successor Servicer that, as to each Mortgage
Loan, as of the related Closing Date for such Mortgage Loan:
(a) Mortgage Loans as Described. The information set forth in the
related Mortgage Loan Schedule is complete, true and correct;
(b) Payments Current. All payments required to be made up to the
related Closing Date for the Mortgage Loan under the terms of the Mortgage Note,
other than payments for which the related due date was not thirty (30) or more
days prior to the related Closing Date, have been made and credited. No Mortgage
Loan has been delinquent for thirty (30) or more days at any time since the
origination of the Mortgage Loan;
(c) No Outstanding Charges. There are no defaults in complying with
the terms of the Mortgage, and all taxes, governmental assessments, insurance
premiums, water, sewer and municipal charges, leasehold payments or ground rents
which previously became due and owing have been paid, or an escrow of funds has
been established in an amount sufficient to pay for every such item which
remains unpaid and which has been assessed but is not yet due and payable. The
Seller has not advanced funds, or induced, solicited or knowingly received any
advance of funds by a party other than the Mortgagor, directly or indirectly,
for the payment of any amount required under the Mortgage Loan, except for
interest accruing from the date of the Mortgage Note or date of disbursement of
the Mortgage Loan proceeds, whichever is earlier, to the day which precedes by
one (1) month the Due Date of the first installment of principal and interest;
(d) Original Terms Unmodified. The terms of the Mortgage Note and
Mortgage have not been impaired, waived, altered or modified in any respect,
from the date of origination except by a written instrument which has been
recorded, if necessary to protect the interests of the Purchaser, and which has
been delivered to the Custodian or to such other Person as the Purchaser shall
designate in writing, and the terms of which are reflected in the related
Mortgage Loan Schedule. No Mortgage Loan has been modified so as to restructure
the payment obligations or re-age the Mortgage Loan. The substance of any such
waiver, alteration or modification has been approved by the title insurer, if
any, to the extent required by the policy, and its terms are reflected on the
related Mortgage Loan Schedule, if applicable. No Mortgagor has been released,
in whole or in part, except in connection with an assumption agreement, approved
by the issuer of the title insurer, to the extent required by the policy, and
which assumption agreement is part of the Mortgage Loan File delivered to the
Custodian or to such other Person as the Purchaser shall designate in writing
and the terms of which are reflected in the related Mortgage Loan Schedule;
(e) No Defenses. The Mortgage Loan is not subject to any right of
rescission, set-off, counterclaim or defense, including without limitation the
defense of usury, nor will the operation of any of the terms of the Mortgage
Note or the Mortgage, or the exercise of any right thereunder, render either the
Mortgage Note or the Mortgage unenforceable, in whole or in part, or subject to
any right of rescission, set-off, counterclaim or defense, including without
limitation the defense of usury, and no such right of rescission, set-off,
counterclaim or defense has been asserted with respect thereto, and no Mortgagor
was a debtor in any state or federal bankruptcy or insolvency proceeding at the
time the Mortgage Loan was originated;
(f) Hazard Insurance. Pursuant to the terms of the Mortgage, all
buildings or other improvements upon the Mortgaged Property are insured by a
generally acceptable insurer against loss by fire, hazards of extended coverage
and such other hazards as are provided for by prudent subprime mortgage lenders
making mortgage loans similar to the Mortgage Loans, as well as all additional
requirements set forth in Section 2.10 of the Interim Servicing Agreement. If
required by the National Flood Insurance Act of 1968, as amended, each Mortgage
Loan is covered by a flood insurance policy meeting the requirements of the
current guidelines of the Federal Insurance Administration in effect which
policy conforms to those accepted by prudent subprime mortgage lenders making
mortgage loans similar to the Mortgage Loans, as well as all additional
requirements set forth in Section 2.10 of the Interim Servicing Agreement. All
individual insurance policies contain a standard mortgagee clause naming the
Seller and its successors and assigns as mortgagee, and all premiums thereon
have been paid. The Mortgage obligates the Mortgagor thereunder to maintain the
hazard insurance policy at the Mortgagor's cost and expense, and on the
Mortgagor's failure to do so, authorizes the holder of the Mortgage to obtain
and maintain such insurance at such Xxxxxxxxx's cost and expense, and to seek
reimbursement therefor from the Mortgagor. Where required by state law or
regulation, the Mortgagor has been given an opportunity to choose the carrier of
the required hazard insurance, provided the policy is not a "master" or
"blanket" hazard insurance policy covering a condominium, or any hazard
insurance policy covering the common facilities of a planned unit development.
The hazard insurance policy is the valid and binding obligation of the insurer,
is in full force and effect, and will be in full force and effect and inure to
the benefit of the Purchaser upon the consummation of the transactions
contemplated by this Agreement. The Seller has not engaged in, and has no
knowledge of the Mortgagor's or any servicer's having engaged in, any act or
omission which would impair the coverage of any such policy, the benefits of the
endorsement provided for herein, or the validity and binding effect of such
policy, without limitation, no unlawful fee, commission, kickback or other
unlawful compensation or value of any kind has been or will be received,
retained or realized by any attorney, firm or other person or entity, and no
such unlawful items have been received, retained or realized by the Seller;
(g) Compliance with Applicable Laws. Any and all requirements of any
federal, state or local law including, without limitation, usury,
truth-in-lending, real estate settlement procedures, consumer credit protection,
predatory, abusive and fair lending laws, equal credit opportunity and
disclosure laws or unfair and deceptive practices laws applicable to the
Mortgage Loan including, without limitation, any provisions relating to
prepayment penalties, have been complied with, the consummation of the
transactions contemplated hereby will not involve the violation of any such laws
or regulations, and the Seller shall maintain in its possession, available for
the Purchaser's inspection, and shall deliver to the Purchaser upon demand,
evidence of compliance with all such requirements. This representation and
warranty is a Deemed Material Breach Representation;
(h) No Satisfaction of Mortgage. The Mortgage has not been
satisfied, canceled, subordinated or rescinded, in whole or in part, and the
Mortgaged Property has not been released from the lien of the Mortgage, in whole
or in part, nor has any instrument been executed that would effect any such
release, cancellation, subordination or rescission. The Seller has not waived
the performance by the Mortgagor of any action, if the Mortgagor's failure to
perform such action would cause the Mortgage Loan to be in default, nor has the
Seller waived any default resulting from any action or inaction by the
Mortgagor;
(i) Location and Type of Mortgaged Property. The Mortgaged Property
is located in the state identified in the related Mortgage Loan Schedule and
consists of real property with a detached single family residence erected
thereon, or a two- to four-family dwelling, or an individual condominium unit in
a low-rise condominium project, or an individual unit in a planned unit
development or a de minimis planned unit development which is in each case four
stories or less. No Mortgage Loan is secured by a mobile home (double wide only)
or manufactured dwelling and that no Mortgage Loan is secured by a single parcel
of real property with a cooperative housing corporation, a log home or a mobile
home erected thereon or by a mixed-use property, a property in excess of 10
acres, or other unique property types. As of the date of origination, no portion
of the Mortgaged Property was used for commercial purposes, and since the date
of origination, no portion of the Mortgaged Property has been used for
commercial purposes; provided, that Mortgaged Properties which contain a home
office shall not be considered as being used for commercial purposes as long as
the Mortgaged Property has not been altered for commercial purposes and is not
storing any chemicals or raw materials other than those commonly used for
homeowner repair, maintenance and/or household purposes;
(j) Valid First or Second Lien. The Mortgage is a valid, subsisting,
enforceable and perfected, first or second lien (as applicable) on the Mortgaged
Property, including all buildings and improvements on the Mortgaged Property and
all installations and mechanical, electrical, plumbing, heating and air
conditioning systems located in or annexed to such buildings, and all additions,
alterations and replacements made at any time with respect to the foregoing. The
lien of the Mortgage is subject only to:
1. the lien of current real property taxes and assessments not
yet due and payable;
2. covenants, conditions and restrictions, rights of way,
easements and other matters of the public record as of the date of
recording acceptable to prudent mortgage lending institutions
generally and specifically referred to in the lender's title
insurance policy delivered to the originator of the Mortgage Loan
and (a) specifically referred to or otherwise considered in the
appraisal made for the originator of the Mortgage Loan or (b) which
do not adversely affect the Appraised Value of the Mortgaged
Property set forth in such appraisal;
3. other matters to which like properties are commonly subject
which do not materially interfere with the benefits of the security
intended to be provided by the Mortgage or the use, enjoyment, value
or marketability of the related Mortgaged Property; and
4. with respect to Second Lien Mortgage Loans, the lien of the
first mortgage on the Mortgaged Property.
Any security agreement, chattel mortgage or equivalent document
related to and delivered in connection with the Mortgage Loan establishes and
creates a valid, subsisting, enforceable and perfected (A) first lien and first
priority security interest with respect to each first lien mortgage loan, or (B)
second lien and second priority security interest with respect to each Second
Lien Mortgage Loan, in either case, on the property described therein and Seller
has full right to sell and assign the same to Purchaser.
(k) Validity of Mortgage Documents. The Mortgage Note and the
Mortgage and any other agreement executed and delivered by a Mortgagor in
connection with a Mortgage Loan are genuine, and each is the legal, valid and
binding obligation of the maker thereof enforceable in accordance with its terms
(including, without limitation, any provisions therein relating to Prepayment
Charges). All parties to the Mortgage Note, the Mortgage and any other such
related agreement had legal capacity to enter into the Mortgage Loan and to
execute and deliver the Mortgage Note, the Mortgage and any such agreement, and
the Mortgage Note, the Mortgage and any other such related agreement have been
duly and properly executed by other such related parties. No fraud, error,
omission, misrepresentation, or negligence with respect to a Mortgage Loan has
taken place on the part of any Person, including without limitation, the
Mortgagor, any appraiser, any builder or developer, or any other party involved
in the origination or servicing of the Mortgage Loan. The Seller has reviewed
all of the documents constituting the Servicing File and has made such inquiries
as it deems necessary to make and confirm the accuracy of the representations
set forth herein;
(l) Full Disbursement of Proceeds. The Mortgage Loan has been closed
and the proceeds of the Mortgage Loan have been fully disbursed and there is no
requirement for future advances thereunder, and any and all requirements as to
completion of any on-site or off-site improvement and as to disbursements of any
escrow funds therefor have been complied with. All costs, fees and expenses
incurred in making or closing the Mortgage Loan and the recording of the
Mortgage were paid, and the Mortgagor is not entitled to any refund of any
amounts paid or due under the Mortgage Note or Mortgage;
(m) Ownership. The Seller is the sole owner of record and holder of
the Mortgage Loan and the indebtedness evidenced by each Mortgage Note. The
Mortgage Loan is not assigned or pledged, and the Seller has good, indefeasible
and marketable title thereto, and has full right to transfer and sell the
Mortgage Loan to the Purchaser free and clear of any encumbrance, equity,
participation interest, lien, pledge, charge, claim or security interest, and
has full right and authority subject to no interest or participation of, or
agreement with, any other party, to sell and assign each Mortgage Loan pursuant
to this Agreement and following the sale of each Mortgage Loan, the Purchaser
will own such Mortgage Loan free and clear of any encumbrance, equity,
participation interest, lien, pledge, charge, claim or security interest. The
Seller intends to relinquish all rights to possess, control and monitor the
Mortgage Loan. After the related Closing Date, the Seller will have no right to
modify or alter the terms of the sale of the Mortgage Loan and the Seller will
have no obligation or right to repurchase the Mortgage Loan or substitute
another Mortgage Loan, except as provided in this Agreement;
(n) Doing Business. All parties which have had any interest in the
Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or,
during the period in which they held and disposed of such interest, were) (1) in
compliance with any and all applicable licensing requirements of the laws of the
state wherein the Mortgaged Property is located, and (2) either (i) organized
under the laws of such state, or (ii) qualified to do business in such state, or
(iii) a federal savings and loan association, a savings bank or a national bank
having a principal office in such state, or (3) not doing business in such
state;
(o) CLTV, LTV. No Mortgage Loan that is a Second Lien Mortgage Loan
has a CLTV in excess of 100%. No Mortgage Loan has an LTV greater than 100%;
(p) Title Insurance. The Mortgage Loan is covered by an ALTA
lender's title insurance policy, or with respect to any Mortgage Loan for which
the related Mortgaged Property is located in California a CLTA lender's title
insurance policy, or other generally acceptable form of policy or insurance
acceptable to prudent subprime mortgage lending institutions and each such title
insurance policy is issued by a title insurer acceptable to a prudent subprime
lender making mortgage loans similar to the Mortgage Loans and qualified to do
business in the jurisdiction where the Mortgaged Property is located, insuring
the Seller, its successors and assigns, as to the first priority lien (with
respect to first lien Mortgage Loans) or second priority lien (with respect to
Second Lien Mortgage Loans) of the Mortgage in the original principal amount of
the Mortgage Loan, subject only to the exceptions contained in clauses (1), (2),
(3) and (4) of paragraph (j) of this Subsection 9.02, and in the case of
adjustable rate Mortgage Loans, against any loss by reason of the invalidity or
unenforceability of the lien resulting from the provisions of the Mortgage
providing for adjustment to the Mortgage Interest Rate and Monthly Payment.
Where required by state law or regulation, the Mortgagor has been given the
opportunity to choose the carrier of the required mortgage title insurance.
Additionally, such lender's title insurance policy affirmatively insures ingress
and egress, and against encroachments by or upon the Mortgaged Property or any
interest therein. The title policy does not contain any special exceptions
(other than the standard exclusions) for zoning and uses and has been marked to
delete the standard survey exceptions or to replace the standard survey
exception with a specific survey reading. The Seller, its successors and
assigns, are the sole insureds of such lender's title insurance policy, and such
lender's title insurance policy is valid and remains in full force and effect
and will be in force and effect upon the consummation of the transactions
contemplated by this Agreement. No claims have been made under such lender's
title insurance policy, and no prior holder of the related Mortgage, including
the Seller, has done, by act or omission, anything which would impair the
coverage of such lender's title insurance policy, including without limitation,
no unlawful fee, commission, kickback or other unlawful compensation or value of
any kind has been or will be received, retained or realized by any attorney,
firm or other person or entity, and no such unlawful items have been received,
retained or realized by the Seller;
(q) No Defaults. Other than payments due but not yet thirty (30)
days or more delinquent, there is no default, breach, violation or event which
would permit acceleration existing under the Mortgage or the Mortgage Note and
no event which, with the passage of time or with notice and the expiration of
any grace or cure period, would constitute a default, breach, violation or event
which would permit acceleration, and neither the Seller nor any of its
affiliates nor any of their respective predecessors, have waived any default,
breach, violation or event which would permit acceleration. With respect to each
Second Lien Mortgage Loan, (i) the prior mortgage is in full force and effect,
(ii) there is no default, breach, violation or event of acceleration existing
under such prior mortgage or the related mortgage note, (iii) as of the related
Closing Date, no event which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a default, breach,
violation or event of acceleration thereunder, and either (A) the prior mortgage
contains a provision which allows or (B) applicable law requires, the mortgagee
under the Second Lien Mortgage Loan to receive notice of, and affords such
mortgagee an opportunity to cure any default by payment in full or otherwise
under the prior mortgage;
(r) No Mechanics' Liens. There are no mechanics' or similar liens or
claims which have been filed for work, labor or material (and no rights are
outstanding that under law could give rise to such liens) affecting the related
Mortgaged Property which are or may be liens prior to, or equal or coordinate
with, the lien of the related Mortgage;
(s) Location of Improvements; No Encroachments. All improvements
which were considered in determining the Appraised Value of the Mortgaged
Property lay wholly within the boundaries and building restriction lines of the
Mortgaged Property, and no improvements on adjoining properties encroach upon
the Mortgaged Property. No improvement located on or being part of the Mortgaged
Property is in violation of any applicable zoning law or regulation;
(t) Origination; Payment Terms. The Mortgage Loan was originated by
a mortgagee approved by the Secretary of Housing and Urban Development pursuant
to Sections 203 and 211 of the National Housing Act, a savings and loan
association, a savings bank, a commercial bank, credit union, insurance company
or other similar institution which is supervised and examined by a federal or
state authority. The documents, instruments and agreements submitted for loan
underwriting were not falsified and contain no untrue statement of material fact
or omit to state a material fact required to be stated therein or necessary to
make the information and statements therein not misleading. No Mortgage Loan
contains terms or provisions which would result in negative amortization.
Principal payments on the Mortgage Loan commenced no more than sixty (60) days
after funds were disbursed in connection with the Mortgage Loan, except for
interest-only Mortgage Loans for which the principal payments commence at the
end of the interest only period. The Mortgage Interest Rate as well as the
Lifetime Rate Cap and the Periodic Cap, are as set forth on the related Mortgage
Loan Schedule. The Mortgage Note is payable in equal monthly installments of
principal and interest, which installments of interest, with respect to
Adjustable Rate Mortgage Loans, are subject to change due to the adjustments to
the Mortgage Interest Rate on each Interest Rate Adjustment Date, with interest
calculated and payable in arrears, sufficient to amortize the Mortgage Loan
fully by the stated maturity date [except for Mortgage Loans which have a stated
maturity of thirty years but amortize based on a forty (40) year schedule] over
an original term of not more than thirty (30) years from commencement of
amortization [except for Mortgage Loans which have a stated maturity of thirty
(30) years but amortize based on a forty (40) year schedule]. The Mortgage Loan
is payable on the first day of each month. There are no Convertible Mortgage
Loans which contain a provision allowing the Mortgagor to convert the Mortgage
Note from an adjustable interest rate Mortgage Note to a fixed interest rate
Mortgage Note. No Mortgage Loan is a balloon mortgage loan that has an original
stated maturity of less than seven (7) years;
(u) Customary Provisions. The Mortgage contains customary and
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for the realization against the Mortgaged Property of the
benefits of the security provided thereby, including, (i) in the case of a
Mortgage designated as a deed of trust, by trustee's sale, and (ii) otherwise by
judicial foreclosure. Upon default by a Mortgagor on a Mortgage Loan and
foreclosure on, or trustee's sale of, the Mortgaged Property pursuant to the
proper procedures, the holder of the Mortgage Loan will be able to deliver good
and merchantable title to the Mortgaged Property. There is no homestead or other
exemption available to a Mortgagor which would interfere with the right to sell
the Mortgaged Property at a trustee's sale or the right to foreclose the
Mortgage, subject to applicable federal and state laws and judicial precedent
with respect to bankruptcy and right of redemption or similar law;
(v) Conformance with Agency and Underwriting Standards. The Mortgage
Loan was underwritten in accordance with the Underwriting Standards (a copy of
which is attached hereto as Exhibit H). The Mortgage Note and Mortgage are on
forms acceptable to Freddie Mac or Xxxxxx Xxx, modified to reflect subprime
lending terms or are on forms generally acceptable to prudent subprime mortgage
lenders and the Seller has not made any representations to a Mortgagor that are
inconsistent with the mortgage instruments used;
(w) Occupancy of the Mortgaged Property. The Mortgaged Property is
lawfully occupied under applicable law. All inspections, licenses and
certificates required to be made or issued with respect to all occupied portions
of the Mortgaged Property and, with respect to the use and occupancy of the
same, including but not limited to certificates of occupancy and fire
underwriting certificates, have been made or obtained from the appropriate
authorities;
(x) No Additional Collateral. The Mortgage Note is not and has not
been secured by any collateral except the lien of the corresponding Mortgage and
the security interest of any applicable security agreement or chattel mortgage
referred to in clause (j) above;
(y) Deeds of Trust. In the event the Mortgage constitutes a deed of
trust, a trustee, authorized and duly qualified under applicable law to serve as
such, has been properly designated and currently so serves and is named in the
Mortgage, and no fees or expenses are or will become payable by the Purchaser to
the trustee under the deed of trust, except in connection with a trustee's sale
after default by the Mortgagor;
(z) [Reserved]
(aa) Delivery of Mortgage Documents. The Mortgage Note, the
Mortgage, the Assignment of Mortgage and any other documents constituting the
Mortgage File for each Mortgage Loan have been delivered to the Custodian. The
Seller is in possession of a complete, true and accurate Mortgage File in
compliance with Exhibit A hereto, except for such documents the originals of
which have been delivered to the Custodian;
(bb) Condominiums/Planned Unit Developments. If the Mortgaged
Property is a condominium unit or a planned unit development (other than a de
minimis planned unit development) such condominium or planned unit development
project such Mortgage Loan was originated in accordance with, and the Mortgaged
Property meets the guidelines set forth in the Seller's Underwriting Guidelines;
(cc) Transfer of Mortgage Loans. The Assignment of Mortgage (except
with respect to any Mortgage that has been recorded in the name of MERS or its
designee), with respect to each Mortgage Loan is in recordable form and is
acceptable for recording under the laws of the jurisdiction in which the
Mortgaged Property is located. The transfer, assignment and conveyance of the
Mortgage Notes and the Mortgages by the Seller are not subject to the bulk
transfer or similar statutory provisions in effect in any applicable
jurisdiction;
(dd) Due-On-Sale. With respect to each Fixed Rate Mortgage Loan, the
Mortgage contains an enforceable provision for the acceleration of the payment
of the unpaid principal balance of the Mortgage Loan in the event that the
Mortgaged Property is sold or transferred without the prior written consent of
the mortgagee thereunder, and such provision is enforceable;
(ee) Assumability. None of the Mortgage Loans are, by their terms,
assumable;
(ff) No Buydown Provisions; No Graduated Payments or Contingent
Interests. The Mortgage Loan does not contain provisions pursuant to which
Monthly Payments are paid or partially paid with funds deposited in any separate
account established by the Seller, the Mortgagor, or anyone on behalf of the
Mortgagor, or paid by any source other than the Mortgagor nor does it contain
any other similar provisions which may constitute a "buydown" provision. The
Mortgage Loan is not a graduated payment mortgage loan and the Mortgage Loan
does not have a shared appreciation or other contingent interest feature;
(gg) Consolidation of Future Advances. Any future advances made to
the Mortgagor prior to the related Cut-off Date have been consolidated with the
outstanding principal amount secured by the Mortgage, and the secured principal
amount, as consolidated, bears a single interest rate and single repayment term.
The lien of the Mortgage securing the consolidated principal amount is expressly
insured as having first or second lien priority (as applicable) by a title
insurance policy, an endorsement to the policy insuring the mortgagee's
consolidated interest or by other title evidence acceptable to a prudent
subprime lender making mortgage loans similar to the Mortgage Loans. The
consolidated principal amount does not exceed the original principal amount of
the Mortgage Loan;
(hh) Mortgaged Property Undamaged; No Condemnation Proceedings.
There is no proceeding pending or threatened for the total or partial
condemnation of the Mortgaged Property. The Mortgaged Property is undamaged by
waste, fire, earthquake or earth movement, windstorm, flood, hurricane, tornado
or other casualty so as to affect adversely the value of the Mortgaged Property
as security for the Mortgage Loan or the use for which the premises were
intended and each Mortgaged Property is in good repair other than immaterial
maintenance issues that would not affect adversely the value of the Mortgaged
Property as security for the Mortgage Loan or the use for which the premises
were intended. There have not been any condemnation proceedings with respect to
the Mortgaged Property and the Seller has no knowledge of any such proceedings
in the future;
(ii) Collection Practices; Escrow Deposits; Interest Rate
Adjustments. The origination, servicing and collection practices used by the
Seller, and any prior servicer with respect to the Mortgage Loan have been in
all respects in compliance with Accepted Servicing Practices, applicable laws
and regulations, and have been in all respects legal and proper and prudent in
the mortgage origination and servicing business. With respect to escrow deposits
and Escrow Payments, all such payments are in the possession of, or under the
control of the Seller and there exist no deficiencies in connection therewith
for which customary arrangements for repayment thereof have not been made. All
Escrow Payments have been collected in full compliance with state and federal
law and the provisions of the related Mortgage Note and Mortgage. An escrow of
funds is not prohibited by applicable law and has been established in an amount
sufficient to pay for every item that remains unpaid and has been assessed but
is not yet due and payable. No escrow deposits or Escrow Payments or other
charges or payments due the Seller have been capitalized under the Mortgage or
the Mortgage Note. All Mortgage Interest Rate adjustments have been made in
strict compliance with state and federal law and the terms of the related
Mortgage and Mortgage Note on the related Interest Rate Adjustment Date. The
Seller executed and delivered any and all notices required under applicable law
and the terms of the related Mortgage Note and Mortgage regarding the Mortgage
Interest Rate and the Monthly Payment adjustments. Any interest required to be
paid pursuant to state, federal and local law has been properly paid and
credited;
(jj) Conversion to Fixed Interest Rate. With respect to Adjustable
Rate Mortgage Loans, the Mortgage Loan is not a Convertible Mortgage Loan;
(kk) Other Insurance Policies. No action, inaction or event has
occurred and no state of facts exists or has existed that has resulted or will
result in the exclusion from, denial of, or defense to coverage under any
applicable, special hazard insurance policy, or bankruptcy bond, irrespective of
the cause of such failure of coverage. In connection with the placement of any
such insurance, no commission, fee, or other compensation has been or will be
received by the Seller or by any officer, director, or employee of the Seller or
any designee of the Seller or any corporation in which the Seller or any
officer, director, or employee had a financial interest at the time of placement
of such insurance;
(ll) No Violation of Environmental Laws. The Mortgaged Property is
free from any and all toxic or hazardous substances and there exists no
violation of any local, state or federal environmental law, rule or regulation.
There is no pending action or proceeding directly involving the Mortgaged
Property in which compliance with any environmental law, rule or regulation is
an issue; there is no violation of any environmental law, rule or regulation
with respect to the Mortgage Property; and nothing further remains to be done to
satisfy in full all requirements of each such law, rule or regulation
constituting a prerequisite to use and enjoyment of said property;
(mm) Servicemembers Civil Relief Act of 2003. The Mortgagor has not
notified the Seller, and the Seller has no knowledge of any relief requested or
allowed to the Mortgagor under the Servicemembers Civil Relief Act of 2003;
(nn) Appraisal. The Mortgage File contains an appraisal of the
related Mortgaged Property signed prior to the approval of the Mortgage Loan
application by a Qualified Appraiser, duly appointed by the related originator,
who had no interest, direct or indirect in the Mortgaged Property or in any loan
made on the security thereof, and whose compensation is not affected by the
approval or disapproval of the Mortgage Loan, and the appraisal and appraiser
both satisfy the requirements of a prudent subprime lender and Title XI of the
Financial Institutions Reform, Recovery, and Enforcement Act of 1989 and the
regulations promulgated thereunder, all as in effect on the date the Mortgage
Loan was originated;
(oo) Disclosure Materials. The Mortgagor has received all disclosure
materials required by, and the Seller has complied with, all applicable law with
respect to the making of the Mortgage Loans. The Mortgagor has in certain cases
executed such disclosure statements and such executed statements and the Seller
shall maintain such statement in the Mortgage File;
(pp) Construction or Rehabilitation of Mortgaged Property. No
Mortgage Loan was made in connection with the construction or rehabilitation of
a Mortgaged Property or facilitating the trade-in or exchange of a Mortgaged
Property;
(qq) Value of Mortgaged Property. The Seller has no knowledge of any
circumstances existing that could be expected to adversely affect the value or
the marketability of any Mortgaged Property or Mortgage Loan or to cause the
Mortgage Loans to prepay during any period materially faster or slower than
similar mortgage loans held by the Seller generally secured by properties in the
same geographic area as the related Mortgaged Property;
(rr) No Defense to Insurance Coverage. The Seller has caused or will
cause to be performed any and all acts required to preserve the rights and
remedies of the Purchaser in any insurance policies applicable to the Mortgage
Loans including, without limitation, any necessary notifications of insurers,
assignments of policies or interests therein, and establishments of coinsured,
joint loss payee and mortgagee rights in favor of the Purchaser. No action has
been taken or failed to be taken, no event has occurred and no state of facts
exists or has existed on or prior to the related Closing Date (whether or not
known to the Seller on or prior to such date) which has resulted or will result
in an exclusion from, denial of, or defense to coverage under any primary
mortgage insurance (including, without limitation, any exclusions, denials or
defenses which would limit or reduce the availability of the timely payment of
the full amount of the loss otherwise due thereunder to the insured) whether
arising out of actions, representations, errors, omissions, negligence, or fraud
of the Seller, the related Mortgagor or any party involved in the application
for such coverage, including the appraisal, plans and specifications and other
exhibits or documents submitted therewith to the insurer under such insurance
policy, or for any other reason under such coverage, but not including the
failure of such insurer to pay by reason of such insurer's breach of such
insurance policy or such insurer's financial inability to pay;
(ss) Escrow Analysis. With respect to each Mortgage, the Seller has
within the last twelve (12) months (unless such Mortgage was originated within
such twelve-month period) analyzed the required Escrow Payments for each
Mortgage and adjusted the amount of such payments so that, assuming all required
payments are timely made, any deficiency will be eliminated on or before the
first anniversary of such analysis, or any overage will be refunded to the
Mortgagor, in accordance with RESPA and any other applicable law;
(tt) Prior Servicing. Each Mortgage Loan has been serviced in strict
compliance with Accepted Servicing Practices;
(uu) Credit Information. As to each consumer report (as defined in
the Fair Credit Reporting Act, Public Law 91-508) or other credit information
furnished by the Seller to the Purchaser, that Seller has full right and
authority and is not precluded by law or contract from furnishing such
information to the Purchaser and the Purchaser is not precluded by the terms of
the Mortgage Loan Documents from furnishing the same to any subsequent or
prospective purchaser of such Mortgage. The Seller has in its capacity as
servicer, for each Mortgage Loan, fully furnished, in accordance with the Fair
Credit Reporting Act and its implementing regulations, accurate and complete
information (e.g., favorable and unfavorable) on its borrower credit files to
Equifax, Experian and Trans Union Credit Information Company (three of the
credit repositories), on a monthly basis. The Servicer will transmit full-file
credit reporting data for each Mortgage Loan pursuant to Xxxxxx Xxx Guide
Announcement 95-19 and that for each Mortgage Loan, Servicer agrees it shall
report one of the following statuses each month as follows: new origination,
current, delinquent (30-, 60-, 90-days, etc.), foreclosed, or charged-off. This
representation and warranty is a Deemed Material Breach Representation;
(vv) Leaseholds. If the Mortgage Loan is secured by a long-term
residential lease, (1) the lessor under the lease holds a fee simple interest in
the land; (2) the terms of such lease expressly permit the mortgaging of the
leasehold estate, the assignment of the lease without the lessor's consent and
the acquisition by the holder of the Mortgage of the rights of the lessee upon
foreclosure or assignment in lieu of foreclosure or provide the holder of the
Mortgage with substantially similar protections; (3) the terms of such lease do
not (a) allow the termination thereof upon the lessee's default without the
holder of the Mortgage being entitled to receive written notice of, and
opportunity to cure, such default, (b) allow the termination of the lease in the
event of damage or destruction as long as the Mortgage is in existence, (c)
prohibit the holder of the Mortgage from being insured (or receiving proceeds of
insurance) under the hazard insurance policy or policies relating to the
Mortgaged Property or (d) permit any increase in rent other than pre-established
increases set forth in the lease; (4) the original term of such lease is not
less than fifteen (15) years; (5) the term of such lease does not terminate
earlier than five (5) years after the maturity date of the Mortgage Note; and
(6) the Mortgaged Property is located in a jurisdiction in which the use of
leasehold estates in transferring ownership in residential properties is a
widely accepted practice;
(ww) Prepayment Penalty. The Mortgage Loan is subject to a
Prepayment Penalty as provided in the related Mortgage Note except as set forth
on the related Mortgage Loan Schedule. With respect to each Mortgage Loan that
has a Prepayment Penalty feature, each such Prepayment Penalty is enforceable
and will be enforced by the Seller for the benefit of the Purchaser, and each
Prepayment Penalty is permitted pursuant to federal, state and local law. Each
such Prepayment Penalty is in an amount not more than the maximum amount
permitted under applicable law and no such Prepayment Penalty may provide for a
term in excess of five (5) years with respect to Mortgage Loans originated prior
to October, 1, 2002. With respect to Mortgage Loans originated on or after
October 1, 2002, the duration of the Prepayment Penalty period shall not exceed
three (3) years from the date of the Mortgage Note unless the Mortgage Loan was
modified to reduce the Prepayment Penalty period to no more than three (3) years
from the date of such Mortgage Loan and the Mortgagor was notified in writing of
such reduction in Prepayment Penalty period. With respect to any Mortgage Loan
that contains a provision permitting imposition of a penalty upon a prepayment
prior to maturity: (i) the Mortgage Loan provides some benefit to the Mortgagor
(e.g., a rate or fee reduction) in exchange for accepting such Prepayment
Penalty, (ii) the Mortgage Loan's originator had a written policy of offering
the Mortgagor or requiring third-party brokers to offer the Mortgagor, the
option of obtaining a mortgage loan that did not require payment of such a
penalty and (iii) the Prepayment Penalty was adequately disclosed to the
Mortgagor in the mortgage loan documents pursuant to applicable state, local and
federal law. This representation and warranty is a Deemed Material Breach
Representation;
(xx) Predatory Lending Regulations. No Mortgage Loan is a High Cost
Loan or Covered Loan, as applicable, and no Mortgage Loan originated on or after
October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending
Act. No Mortgage Loan is covered by the Home Ownership and Equity Protection Act
of 1994 and no Mortgage Loan is in violation of any comparable state or local
law. The Mortgaged Property is not located in a jurisdiction where a breach of
this representation with respect to the related Mortgage Loan may result in
additional assignee liability to the Purchaser, as determined by Purchaser in
its reasonable discretion. No predatory or deceptive lending practices,
including, without limitation, the extension of credit without regard to the
ability of the Mortgagor to repay and the extension of credit which has no
apparent benefit to the Mortgagor, were employed in the origination of the
Mortgage Loan. This representation and warranty is a Deemed Material Breach
Representation;
(yy) Single-premium Credit Life Insurance Policy. In connection with
the origination of any Mortgage Loan, no proceeds from any Mortgage Loan were
used to finance or acquire a single-premium credit life insurance policy. No
Mortgagor was required to purchase any single-premium credit insurance policy
(e.g., life, disability, accident, unemployment or property insurance product)
or debt cancellation agreement as a condition of obtaining the extension of
credit. No Mortgagor obtained a prepaid single-premium credit insurance policy
(e.g., life, disability, accident, unemployment or property insurance policy) in
connection with the origination of the Mortgage Loan; no proceeds from any
Mortgage Loan were used to purchase single-premium credit insurance policies or
debt cancellation agreements as part of the origination of, or as a condition to
closing, such Mortgage Loan. This representation and warranty is a Deemed
Material Breach Representation;
(zz) Tax Service Contract; Flood Certification Contract. Each
Mortgage Loan is covered by a paid in full, life of loan, tax service contract
and a paid in full, life of loan, flood certification contract and each of these
contracts is assignable to the Purchaser;
(aaa) Qualified Mortgage. The Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code;
(bbb) Regarding the Mortgagor. The Mortgagor is one or more natural
persons and/or trustees for an Illinois land trust or a trustee under a "living
trust" and such "living trust" is in compliance with the guidelines of a prudent
subprime lender;
(ccc) Recordation. Each original Mortgage was recorded and, except
for those Mortgage Loans subject to the MERS identification system, all
subsequent assignments of the original Mortgage (other than the assignment to
the Purchaser) have been recorded in the appropriate jurisdictions wherein such
recordation is necessary to perfect the lien thereof as against creditors of the
Seller, or is in the process of being recorded;
(ddd) FICO Scores. Each Mortgagor has a non-zero FICO score;
(eee) Compliance with Anti-Money Laundering Laws. The Seller has
complied with all applicable anti-money laundering laws and regulations,
including without limitation the USA PATRIOT Act of 2001 (collectively, the
"Anti-Money Laundering Laws"); the Seller has established an anti-money
laundering compliance program as required by the Anti-Money Laundering Laws, has
conducted the requisite due diligence in connection with the origination of each
Mortgage Loan for purposes of the Anti-Money Laundering Laws, including with
respect to the legitimacy of the applicable Mortgagor and the origin of the
assets used by the said Xxxxxxxxx to purchase the property in question, and
maintains, and will maintain, sufficient information to identify the applicable
Mortgagor for purposes of the Anti-Money Laundering Laws;
(fff) Litigation. The Mortgage Loan is not subject to any
outstanding litigation for fraud, origination, predatory lending, servicing or
closing practices;
(ggg) MERS Designations. With respect to each MERS Designated
Mortgage Loan, the Seller has designated the Custodian as the Investor and no
Person is listed as Interim Funder on the MERS(R) System;
(hhh) Reports. On or prior to the related Closing Date, the Seller
has provided the Custodian and the Purchaser with a MERS Report listing the
Custodian as the Investor with respect to each MERS Designated Mortgage Loan;
(iii) Origination Practices. The Mortgagor was not encouraged or
required to select a Mortgage Loan product offered by the Mortgage Loan's
originator which is a higher cost product designed for less creditworthy
borrowers, unless at the time of the Mortgage Loan's origination, such Mortgagor
did not qualify taking into account such facts as, without limitation, the
Mortgage Loan's requirements and the Mortgagor's credit history, income, assets
and liabilities and debt-to-income ratios for a lower-cost credit product then
offered by the Mortgage Loan's originator or any affiliate of the Mortgage
Loan's originator. If, at the time of loan application, the Mortgagor may have
qualified for a lower-cost credit product then offered by any mortgage lending
affiliate of the Mortgage Loan's originator, the Mortgage Loan's originator
referred the Mortgagor's application to such affiliate for underwriting
consideration. For a Mortgagor who seeks financing through a Mortgage Loan
originator's higher-priced subprime lending channel, the Mortgagor was directed
towards or offered the Mortgage Loan originator's standard mortgage line if the
Mortgagor was able to qualify for one of the standard products. This
representation and warranty is a Deemed Material Breach Representation;
(jjj) Underwriting Methodology. The methodology used in underwriting
the extension of credit for each Mortgage Loan does not rely on the extent of
the Mortgagor's equity in the collateral as the principal determining factor in
approving such extension of credit. The methodology employed objective criteria
that related such facts as, without limitation, the Mortgagor's credit history,
income, assets or liabilities, to the proposed mortgage payment and, based on
such methodology, the Mortgage Loan's originator made a reasonable determination
that at the time of origination the Mortgagor had the ability to make timely
payments on the Mortgage Loan. Such underwriting methodology confirmed that at
the time of origination (application/approval) the Mortgagor had a reasonable
ability to make timely payments on the Mortgage Loan except as set forth in the
Underwriting Guidelines with respect to stated income programs. This
representation and warranty is a Deemed Material Breach Representation;
(kkk) [reserved];
(lll) Fees Charges. All fees and charges (including finance charges)
and whether or not financed, assessed, collected or to be collected in
connection with the origination and servicing of each Mortgage Loan has been
disclosed in writing to the Mortgagor in accordance with applicable state and
federal law and regulation. This representation and warranty is a Deemed
Material Breach Representation;
(mmm) Arbitration. With respect to any Mortgage Loan originated on
or after August 1, 2004, neither the related Mortgage nor the related Mortgage
Note requires the Mortgagor to submit to arbitration to resolve any dispute
arising out of or relating in any way to the Mortgage Loan transaction. This
representation and warranty is a Deemed Material Breach Representation;
(nnn) Modification. No Mortgage Loan has been modified since
origination;
(ooo) No High Cost Loans. No Mortgage Loan is a High Cost Loan or
Home Loan as such terms are defined in the then current Standard & Poor's
Glossary; and
(ppp) Second Lien Mortgage Loans. With respect to each Second Lien
Mortgage Loan:
(i) No Negative Amortization of Related First Lien Loan. The related
first lien loan does not permit negative amortization;
(ii) Request for Notice; No Consent Required. Where required or
customary in the jurisdiction in which the Mortgaged Property is located,
the original lender has filed for record a request for notice of any
action by the related senior lienholder, and the Seller has notified such
senior lienholder in writing of the existence of the Second Lien Mortgage
Loan and requested notification of any action to be taken against the
Mortgagor by such senior lienholder. Either (a) no consent for the Second
Lien Mortgage Loan is required by the holder of the related first lien
loan or (b) such consent has been obtained and is contained in the related
Mortgage File;
(iii) No Default Under First Lien. To the best of Seller's
knowledge, the related first lien loan is in full force and effect, and
there is no default lien, breach, violation or event, other than
delinquencies of up to twenty-nine days, which would permit acceleration
existing under such first lien mortgage or mortgage note, and no event
which, with the passage of time or with notice and the expiration of any
grace or cure period, would constitute a default, breach, violation or
event which would permit acceleration under such first lien loan;
(iv) Right to Cure First Lien. The related first lien mortgage
contains a provision which provides for giving notice of default or breach
to the mortgagee under the Mortgage Loan and allows such mortgagee to cure
any default under the related first lien mortgage;
(v) Principal Residence. The related Mortgaged Property is
owner-occupied.
This representation and warranty is a Deemed Material and Adverse
Representation.
Subsection 9.03 Remedies for Breach of Representations and
Warranties.
It is understood and agreed that the representations and warranties
set forth in Subsections 9.01 and 9.02 shall survive the sale of the Mortgage
Loans to the Purchaser and shall inure to the benefit of the Purchaser, its
successors and assigns and the Successor Servicer, notwithstanding any
restrictive or qualified endorsement on any Mortgage Note or Assignment of
Mortgage or the examination or failure to examine any Mortgage File. Upon
discovery by either the Seller or the Purchaser of a breach of any of the
foregoing representations and warranties, the party discovering such breach
shall give prompt written notice to the other.
Within thirty (30) days of the earlier of either discovery by or
notice to the Seller of any breach of a representation or warranty which
materially and adversely affects the value of the Mortgage Loans or the interest
of the Purchaser therein (or which materially and adversely affects the value of
the applicable Mortgage Loan or the interest of the Purchaser therein in the
case of a representation and warranty relating to a particular Mortgage Loan),
the Seller shall use its best efforts promptly to cure such breach in all
material respects and, if such breach cannot be cured, the Seller shall, at the
Purchaser's option, repurchase such Mortgage Loan at the Repurchase Price,
together with all expenses incurred by the Purchaser as a result of such
repurchase. Notwithstanding the above sentence, (i) within sixty (60) days of
the earlier of either discovery by, or notice to, the Seller of any breach of
the representation and warranty set forth in clause (aaa) of Subsection 9.02,
the Seller shall repurchase such Mortgage Loan at the Repurchase Price, together
with all expenses incurred by the Purchaser as a result of such repurchase and
(ii) any breach of a Deemed Material Breach Representation shall automatically
be deemed to materially and adversely affect the value of the Mortgage Loan and
the interest of the Purchaser therein. In the event that a breach shall involve
any representation or warranty set forth in Subsection 9.01, and such breach
cannot be cured within thirty (30) days of the earlier of either discovery by or
notice to the Seller of such breach, all of the Mortgage Loans shall, at the
Purchaser's option, be repurchased by the Seller at the Repurchase Price.
However, if the breach shall involve a representation or warranty set forth in
Subsection 9.02 (other than the representations and warranties set forth in
clause (aaa) of such Subsection or any Deemed Material Breach Representation)
and the Seller discovers or receives notice of any such breach within one
hundred twenty (120) days of the related Closing Date, the Seller shall, at the
Purchaser's option and provided that the Seller has a Qualified Substitute
Mortgage Loan, rather than repurchase the Mortgage Loan as provided above,
remove such Mortgage Loan (a "Deleted Mortgage Loan") and substitute in its
place a Qualified Substitute Mortgage Loan or Loans, provided that any such
substitution shall be effected not later than one hundred twenty (120) days
after the related Closing Date. If the Seller has no Qualified Substitute
Mortgage Loan, it shall repurchase the deficient Mortgage Loan. Any repurchase
of a Mortgage Loan or Loans pursuant to the foregoing provisions of this
Subsection 9.03 shall be accomplished by direct remittance of the Repurchase
Price to the Purchaser or its designee in accordance with the Purchaser's
instructions.
At the time of repurchase or substitution, the Purchaser and the
Seller shall arrange for the reassignment of the Deleted Mortgage Loan to the
Seller and the delivery to the Seller of any documents held by the Custodian
relating to the Deleted Mortgage Loan. In the event of a repurchase or
substitution, the Seller shall, simultaneously with such reassignment, give
written notice to the Purchaser that such repurchase or substitution has taken
place, amend the related Mortgage Loan Schedule to reflect the withdrawal of the
Deleted Mortgage Loan from this Agreement, and, in the case of substitution,
identify a Qualified Substitute Mortgage Loan and amend the related Mortgage
Loan Schedule to reflect the addition of such Qualified Substitute Mortgage Loan
to this Agreement. In connection with any such substitution, the Seller shall be
deemed to have made as to such Qualified Substitute Mortgage Loan the
representations and warranties set forth in this Agreement except that all such
representations and warranties set forth in this Agreement shall be deemed made
as of the date of such substitution. The Seller shall effect such substitution
by delivering to the Custodian or to such other party as the Purchaser may
designate in writing for such Qualified Substitute Mortgage Loan the documents
required by Subsection 6.03, with the Mortgage Note endorsed as required by
Subsection 6.03. No substitution will be made in any calendar month after the
Determination Date for such month. The Seller shall remit directly to the
Purchaser, or its designee in accordance with the Purchaser's instructions the
Monthly Payment on such Qualified Substitute Mortgage Loan or Loans in the month
following the date of such substitution. Monthly Payments due with respect to
Qualified Substitute Mortgage Loans in the month of substitution shall be
retained by the Seller. For the month of substitution, distributions to the
Purchaser shall include the Monthly Payment due on any Deleted Mortgage Loan in
the month of substitution, and the Seller shall thereafter be entitled to retain
all amounts subsequently received by the Seller in respect of such Deleted
Mortgage Loan.
For any month in which the Seller substitutes a Qualified Substitute
Mortgage Loan for a Deleted Mortgage Loan, the Seller shall determine the amount
(if any) by which the aggregate principal balance of all Qualified Substitute
Mortgage Loans as of the date of substitution is less than the aggregate Stated
Principal Balance of all Deleted Mortgage Loans (after application of scheduled
principal payments due in the month of substitution). The amount of such
shortfall shall be distributed by the Seller directly to the Purchaser or its
designee in accordance with the Purchaser's instructions within two (2) Business
Days of such substitution. Accordingly, on the date of such substitution, the
Seller will remit to the Servicer from its own funds for deposit into the
Custodial Account an amount equal to the amount of such shortfall plus one
month's interest thereon at the Mortgage Loan remittance rate.
In addition to such repurchase or substitution obligation, the
Seller shall indemnify the Purchaser, its successors and assigns and the
Successor Servicer and hold them harmless against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments, and other costs and expenses resulting from any claim, demand,
defense or assertion based on or grounded upon, or resulting from, a breach of
the Seller representations and warranties contained in this Agreement or any
Reconstitution Agreement. It is understood and agreed that the obligations of
the Seller set forth in this Subsection 9.03 to cure, substitute for or
repurchase a defective Mortgage Loan and to indemnify the Purchaser, its
successors and assigns and the Successor Servicer as provided in this Subsection
9.03 constitute the sole remedies respecting a breach of the foregoing
representations and warranties. For purposes of this paragraph, "Purchaser"
shall mean the Person then acting as the Purchaser under this Agreement and any
and all Persons who previously were "Purchasers" under this Agreement and
"Successor Servicer" shall mean the Person then acting as the Successor Servicer
under this Agreement and any and all Persons who previously were "Successor
Servicers" under this Agreement.
Any cause of action against the Seller relating to or arising out of
the breach of any representations and warranties made in Subsections 9.01 and
9.02 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by
the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by
the Seller to cure such breach or repurchase such Mortgage Loan as specified
above, and (iii) demand upon the Seller by the Purchaser for compliance with
this Agreement.
Subsection 9.04 [Reserved.]
Subsection 9.05 Purchaser's Right to Review.
Prior to the related Closing Date, the Purchaser shall have the
right to perform on-site due diligence at the premises of the Seller with
respect to the Mortgage Loans. The Seller will provide information and otherwise
cooperate with the due diligence reviews of the Purchaser, its co-investor's,
its financial partner's, and the rating agencies. The Seller shall make the
legal files and the credit files, together with any payment histories,
collection histories, bankruptcy histories, broker's price opinions, to the
extent available, and any other information with respect to the Mortgage Loans
requested by the Purchaser, available at the Seller's offices for review by
Purchaser or its agents during normal business hours before the related Closing
Date. The Purchaser shall have the right to order additional broker's price
opinions in its sole discretion at the Purchaser's expense.
The Purchaser shall have the right to reject any Mortgage Loan (a)
for which the documentation listed in Subsection 6.03 is missing or defective in
whole or in part, (b) for which the related broker's price opinion is below the
appraisal provided in connection with the origination of the related Mortgage
Loan, (c) for which the loan-to-value ratio calculated based upon the broker's
price opinion is greater than 100%, (d) which does not conform to the Seller's
underwriting guidelines, (e) which does not conform to the terms of the related
Purchase Price and Terms Letter or is in breach of the representations and
warranties set forth in this Purchase Agreement, (f) that is not securitizable
in the reasonable opinion of the Purchaser, or (g) which does not conform to the
terms of any applicable federal, state, or local law or regulation. The
Purchaser shall use its best efforts to notify the Seller of any such rejected
Mortgage Loan immediately upon discovery.
The fact that the Purchaser has conducted or failed to conduct any
partial or complete examination of the files shall not affect the Purchaser's
(or any of its successor's) rights to demand repurchase or other relief for
breach of Mortgage Loan representations and warranties, missing or defective
documents or as otherwise provided in this Agreement.
SECTION 10. Closing.
The closing for the purchase and sale of the Mortgage Loans in each
Mortgage Loan Package shall take place on the related Closing Date. At the
Purchaser's option, the Closing shall be either: by telephone, confirmed by
letter or wire as the parties shall agree, or conducted in person, at such place
as the parties shall agree.
The closing for the Mortgage Loans to be purchased on each Closing
Date shall be subject to each of the following conditions:
(i) at least two (2) Business Days prior to the related
Closing Date or such later date on which the Purchaser has
identified to the Seller the final list of Mortgage Loans the
Purchaser desires to purchase, the Seller shall deliver to the
Purchaser via electronic medium a Mortgage Loan Schedule acceptable
to the Purchaser;
(ii) all of the representations and warranties of the Seller
under this Agreement shall be true and correct as of the related
Closing Date and no event shall have occurred which, with notice or
the passage of time, would constitute a default under this
Agreement;
(iii) the Purchaser shall have received, or the Purchaser's
attorneys shall have received in escrow, all Closing Documents as
specified in Section 11 of this Agreement, in such forms as are
agreed upon and reasonably acceptable to the Purchaser, duly
executed by all signatories other than the Purchaser as required
pursuant to the terms hereof;
(iv) the Seller shall have delivered and released to the
Custodian all documents required hereunder; and
(v) all other terms and conditions of this Agreement and the
related Purchase Price and Terms Agreement shall have been complied
with.
Subject to the foregoing conditions, the Purchaser shall pay to the
Seller on the related Closing Date the Purchase Price, plus accrued interest
pursuant to Section 4 of this Agreement, by wire transfer of immediately
available funds to the account(s) designated by the Seller.
SECTION 11. Closing Documents.
(a) The Closing Documents for the Mortgage Loans to be purchased on
the initial Closing Date shall consist of fully executed originals of the
following documents:
1. this Agreement;
2. the Interim Servicing Agreement, any account certifications
and all other documents required thereunder;
3. an Officer's Certificate, in the form of Exhibit C hereto
with respect to each of the Seller and Interim Servicer, including
all attachments thereto;
4. an Opinion of Counsel of each of the Seller and Interim
Servicer (who may be an employee of the Seller), in the form of
Exhibit D hereto;
5. a Security Release Certification, substantially in the form
of Exhibit E or F, as applicable, hereto executed by any person, as
requested by the Purchaser, if any of the Mortgage Loans have at any
time been subject to any security interest, pledge or hypothecation
for the benefit of such person;
6. the Underwriting Guidelines to be attached hereto as
Exhibit H; and
7. a certificate or other evidence of merger or change of
name, signed or stamped by the applicable regulatory authority, if
any of the Mortgage Loans were acquired by the Seller by merger or
acquired or originated by the Seller while conducting business under
a name other than its present name, if applicable.
(b) The Closing Documents to be delivered on each Closing Date shall
consist of fully executed originals of the following documents:
1. an Assignment and Conveyance in the form of Exhibit I
hereto, including all exhibits;
2. a Purchase Price and Terms Agreement;
3. the related Mortgage Loan Schedule, with one copy to be
attached to the related Assignment and Conveyance;
4. each of the documents required to be delivered by the
Seller pursuant to Subsection 6.03 hereof;
5. the initial certification of the Custodian with respect to
the related Mortgage Loan Package;
6. a Security Release Certification, substantially in the form
of Exhibit E or F, as applicable, hereto executed by any person, as
requested by the Purchaser, if any of the Mortgage Loans have at any
time been subject to any security interest, pledge or hypothecation
for the benefit of such person;
7. a certificate or other evidence of merger or change of
name, signed or stamped by the applicable regulatory authority, if
any of the Mortgage Loans were acquired by the Seller by merger or
acquired or originated by the Seller while conducting business under
a name other than its present name, if applicable; and
8. if requested by the Purchaser in connection with a material
change in Seller's financial condition or corporate structure, an
updated Officer's Certificate, in the form of Exhibit C hereto,
including all attachments thereto and an updated Opinion of Counsel
of the Seller, in the form of Exhibit D hereto.
The Seller shall bear the risk of loss of the closing documents
until such time as they are received by the Purchaser or its attorneys.
SECTION 12. Costs.
The Purchaser shall pay its due diligence fees and the fees and
expenses of its counsel. All servicing fees incurred prior to the related
Closing Date, and all costs and expenses incurred in connection with the
transfer of the Mortgage Loans, fees to transfer files and prepare
assignments/endorsements, all initial recording fees, if any, for the
assignments of mortgage for all Mortgage Loans not recorded in the name of MERS,
all fees, if any, for transferring record ownership on the MERS(R) System of
Mortgage Loans recorded in the name of MERS, custodial fees, including the costs
associated with clearing exceptions, (including costs to record intervening
assignments and any existing assumption and modification agreements), together
with the fees and expenses of Seller's counsel, shall be payable by the Seller.
SECTION 13. Cooperation of Seller with a Reconstitution.
The Seller and the Purchaser agree that with respect to some or all
of the Mortgage Loans, after the related Closing Date, on one or more dates
(each a "Reconstitution Date") at the Purchaser's sole option, the Purchaser may
effect a sale (each a "Reconstitution") of some or all of the Mortgage Loans
then subject to this Agreement, without recourse, to:
(i) Xxxxxx Xxx under its Cash Purchase Program or MBS Program
(Special Servicing Option) (each a "Xxxxxx Xxx Transfer"); or
(ii) Freddie Mac (the "Freddie Mac Transfer"); or
(iii) one or more third party purchasers in one or more Whole Loan
Transfers; or
(iv) one or more trusts or other entities to be formed as part of
one or more Securitization Transactions.
The Seller agrees to execute in connection with any Agency Transfer,
any and all pool purchase contracts, and/or agreements reasonably acceptable to
the Seller among the Purchaser, the Seller, Xxxxxx Xxx or Freddie Mac (as the
case may be) and any servicer in connection with a Whole Loan Transfer, a
seller's warranties and servicing agreement or a participation and servicing
agreement in form and substance reasonably acceptable to the Seller, and in
connection with a Securitization Transaction, a pooling and servicing agreement
in form and substance reasonably acceptable to the Seller (collectively the
agreements referred to herein are designated, the "Reconstitution Agreements").
With respect to each Whole Loan Transfer and each Securitization
Transaction entered into by the Purchaser, the Seller agrees (1) to cooperate
fully with the Purchaser and any prospective purchaser with respect to all
reasonable requests and due diligence procedures; (2) to execute, deliver and
perform all Reconstitution Agreements required by the Purchaser; and deliver an
opinion of counsel in form and substance satisfactory to the Purchaser if
requested by the Purchaser; and (3) (a) to restate the representations and
warranties set forth in this Agreement as of the settlement or closing date in
connection with such Reconstitution (each, a "Reconstitution Date") (or, with
respect to the representations and warranties set forth in clauses (b), (c),
(d), (f), (h), (n), (q), (hh), (ll), (mm), (qq), (rr), (tt), (fff), (nnn),
(ppp)(iii) and (ppp)(v) of Section 9.02, restated as of the applicable Closing
Date) or (b) make the representations and warranties set forth in the related
selling/servicing guide of the master servicer or issuer, as the case may be, or
such representations and warranties as may be required by any Rating Agency or
prospective purchaser of the related securities or such Mortgage Loans, in
connection with such Reconstitution. The Seller shall use its reasonable best
efforts to provide to such master servicer or issuer, as the case may be, and
any other participants in such Reconstitution: (i) any and all information and
appropriate verification of information which may be reasonably available to the
Seller or its affiliates, whether through letters of its auditors and counsel or
otherwise, as the Purchaser or any such other participant shall request; (ii)
such additional representations, warranties, covenants, opinions of counsel,
letters from auditors, and certificates of public officials or officers of the
Seller as are reasonably believed necessary by the Purchaser or any such other
participant; and (iii) to execute, deliver and satisfy all conditions set forth
in an indemnity agreement substantially in the form of Exhibit O hereto. The
Seller shall indemnify the Purchaser, each Affiliate designated by the
Purchaser, each Person who controls the Purchaser or such Affiliate and the
Successor Servicer and hold each of them harmless from and against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments, and any other costs, fees and expenses that each of
them sustain related to any information provided by or on behalf of the Seller
regarding the Seller (or if the Seller is not the originator, the originator of
the Mortgage Loans), the Seller's servicing practices or performance, the
Mortgage Loans or the Underwriting Guidelines set forth in any offering document
prepared in connection with any Reconstitution. For purposes of the previous
sentence, "Purchaser" shall mean the Person then acting as the Purchaser under
this Agreement and any and all Persons who previously were "Purchasers" under
this Agreement and "Successor Servicer" shall mean the Person then acting as the
Successor Servicer under this Agreement and any and all Persons who previously
were "Successor Servicers" under this Agreement. Moreover, the Seller agrees to
cooperate with all reasonable requests made by the Purchaser to effect such
Reconstitution Agreements.
In the event the Purchaser has elected to have the Seller hold
record title to the Mortgages, prior to the Reconstitution Date, the Seller
shall prepare an assignment of mortgage in blank or to the prospective purchaser
or trustee, as applicable, from the Seller acceptable to the prospective
purchaser or trustee, as applicable, for each Mortgage Loan that is part of the
Reconstitution and shall pay all preparation and recording costs associated
therewith. In connection with the Reconstitution, the Seller shall execute each
assignment of mortgage, track such Assignments of Mortgage to ensure they have
been recorded and deliver them as required by the prospective purchaser or
trustee, as applicable, upon the Seller's receipt thereof. Additionally, the
Seller shall prepare and execute, at the direction of the Purchaser, any note
endorsement in connection with any and all seller/servicer agreements.
All Mortgage Loans not sold or transferred pursuant to a
Reconstitution shall remain subject to this Agreement and with respect thereto
this Agreement shall remain in full force and effect.
SECTION 14. The Seller.
Subsection 14.01 Additional Indemnification by the Seller; Third
Party Claims.
The Seller shall indemnify the Purchaser and hold it harmless
against any and all claims, losses, damages, penalties, fines, forfeitures,
legal fees (including (without limitation) legal fees incurred in connection
with the enforcement of the Seller's indemnification obligation under this
Subsection 14.01) and related costs, judgments, and any other costs, fees and
expenses sustained by the Purchaser or the Successor Servicer related to (a) any
breach of any of Seller's representations, warranties or covenants set forth in
this Agreement, (b) the failure of the Seller to perform its duties under this
Agreement or (c) the failure of the Seller to service the Mortgage Loans in
strict compliance with the terms of the Interim Servicing Agreement or any
Reconstitution Agreement entered into pursuant to Section 13. The Seller
immediately shall notify the Purchaser if a claim is made by a third party with
respect to this Agreement or any Reconstitution Agreement or the Mortgage Loans,
assume (with the prior written consent of the Purchaser) the defense of any such
claim and pay all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or the Purchaser in respect of such claim. The Purchaser promptly
shall reimburse the Seller for all amounts advanced by it pursuant to the
preceding sentence, except when the claim is in any way related to the Seller's
indemnification pursuant to Section 9 or the first sentence of this Subsection
14.01, or is in any way related to the failure of the Seller to service and
administer the Mortgage Loans in strict compliance with the terms of this
Agreement or any Reconstitution Agreement.
Subsection 14.02 Merger or Consolidation of the Seller.
The Seller will keep in full effect its existence, rights and
franchises as a corporation under the laws of the state of its formation except
as permitted herein, and will obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its duties under this Agreement.
Any Person into which the Seller may be merged or consolidated, or
any entity resulting from any merger, conversion or consolidation to which the
Seller shall be a party, or any Person succeeding to the business of the Seller,
shall be the successor of the Seller hereunder, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided, however, that the
successor or surviving Person shall have a net worth of at least $25,000,000.
SECTION 15. Financial Statements.
The Seller understands that in connection with the Purchaser's
marketing of the Mortgage Loans, the Purchaser shall make available to
prospective purchasers audited financial statements of the Seller for the most
recently completed three (3) fiscal years respecting which such statements are
available, as well as a Consolidated Statement of Condition of the Seller at the
end of the last two (2) fiscal years covered by such Consolidated Statement of
Operations. The Seller shall also make available any comparable interim
statements to the extent any such statements have been prepared by the Seller
(and are available upon request to the public at large). The Seller, if it has
not already done so, agrees to furnish promptly to the Purchaser copies of the
statements specified above.
The Seller also agrees to allow reasonable access to a knowledgeable
financial or accounting officer for the purpose of answering questions asked by
any prospective purchaser regarding recent developments affecting the Seller or
the financial statements of the Seller.
SECTION 16. [Reserved.]
SECTION 17. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed, by registered or
certified mail, return receipt requested, or, if by other means, when received
by the other party at the address as follows:
(i) if to the Seller:
Aames Capital Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: EVP Secondary Markets
with a copy to:
Aames Capital Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
(ii) if to the Purchaser:
Xxxxxxx Xxxxx Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx Xxxxxxx
or such other address as may hereafter be furnished to the other party by like
notice. Any such demand, notice or communication hereunder shall be deemed to
have been received on the date delivered to or received at the premises of the
addressee (as evidenced, in the case of registered or certified mail, by the
date noted on the return receipt).
SECTION 18. Severability Clause.
Any part, provision representation or warranty of this Agreement
which is prohibited or unenforceable or is held to be void or unenforceable in
any jurisdiction shall be ineffective, as to such jurisdiction, to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof. If the invalidity of any
part, provision, representation or warranty of this Agreement shall deprive any
party of the economic benefit intended to be conferred by this Agreement, the
parties shall negotiate, in good-faith, to develop a structure the economic
effect of which is nearly as possible the same as the economic effect of this
Agreement without regard to such invalidity.
SECTION 19. Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
SECTION 20. Governing Law.
This Agreement shall be deemed in effect when a fully executed
counterpart thereof is received by the Purchaser in the State of New York and
shall be deemed to have been made in the State of New York. The Agreement shall
be construed in accordance with the laws of the State of New York and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with the substantive laws of the State of New York (without regard to
conflicts of laws principles), except to the extent preempted by federal law.
SECTION 21. Intention of the Parties.
It is the intention of the parties that the Purchaser is purchasing,
and the Seller is selling the Mortgage Loans and not a debt instrument of the
Seller or another security. Accordingly, the parties hereto each intend to treat
the transaction for federal income tax purposes as a sale by the Seller, and a
purchase by the Purchaser, of the Mortgage Loans. Moreover, the arrangement
under which the Mortgage Loans are held shall be consistent with classification
of such arrangement as a grantor trust in the event it is not found to represent
direct ownership of the Mortgage Loans. The Purchaser shall have the right to
review the Mortgage Loans and the related Mortgage Loan Files to determine the
characteristics of the Mortgage Loans which shall affect the federal income tax
consequences of owning the Mortgage Loans and the Seller shall cooperate with
all reasonable requests made by the Purchaser in the course of such review.
SECTION 22. Successors and Assigns; Assignment of Purchase
Agreement.
This Agreement shall bind and inure to the benefit of and be
enforceable by the Seller and the Purchaser and the respective permitted
successors and assigns of the Seller and the successors and assigns of the
Purchaser. This Agreement shall not be assigned, pledged or hypothecated by the
Seller to a third party without the prior written consent of the Purchaser,
which consent may be withheld by the Purchaser in its sole discretion. This
Agreement may be assigned, pledged or hypothecated by the Purchaser in whole or
in part, and with respect to one or more of the Mortgage Loans, without the
consent of the Seller. If the Purchaser assigns any or all of its rights as
Purchaser hereunder, the assignee of the Purchaser will become the "Purchaser"
hereunder to the extent of such assignment. Any such assignment by the Purchaser
shall be accompanied by the delivery and execution of an Assignment and
Assumption Agreement (the "Assignment and Assumption Agreement") in the form
attached hereto as Exhibit G.
SECTION 23. Waivers.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced.
SECTION 24. Exhibits.
The exhibits to this Agreement are hereby incorporated and made a
part hereof and are an integral part of this Agreement.
SECTION 25. General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Agreement have the meanings assigned
to them in this Agreement and include the plural as well as the singular, and
the use of any gender herein shall be deemed to include the other gender;
(b) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
(c) references herein to "Articles," "Sections," "Subsections,"
"Paragraphs," and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other subdivisions of
this Agreement;
(d) reference to a Subsection without further reference to a Section
is a reference to such Subsection as contained in the same Section in which the
reference appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(e) the words "herein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision; and
(f) the term "include" or "including" shall mean without limitation
by reason of enumeration.
SECTION 26. Reproduction of Documents.
This Agreement and all documents relating thereto, including,
without limitation, (a) consents, waivers and modifications which may hereafter
be executed, (b) documents received by any party at the closing, and (c)
financial statements, certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties agree
that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the original
is in existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
SECTION 27. Further Agreements.
The Seller and the Purchaser each agree to execute and deliver to
the other such reasonable and appropriate additional documents, instruments or
agreements as may be necessary or appropriate to effectuate the purposes of this
Agreement.
SECTION 28. Recordation of Assignments of Mortgage.
To the extent permitted by applicable law, for Mortgage Loans which
are not registered with MERS, each of the Assignments of Mortgage is subject to
recordation in all appropriate public offices for real property records in all
the counties or their comparable jurisdictions in which any or all of the
Mortgaged Properties are situated, and in any other appropriate public recording
office or elsewhere, such recordation to be effected at the Seller's expense in
the event recordation is either necessary under applicable law or requested by
the Purchaser (which request may be made by the Purchaser at any time following
the related Closing Date) at its sole option.
SECTION 29. No Solicitation.
From and after the related Closing Date, the Seller agrees that it
will not take any action or permit or cause any action to be taken by any of its
agents or affiliates, or by any independent contractors on the Seller's behalf,
to personally, by telephone or mail, solicit the Mortgagor under any Mortgage
Loan for any purpose whatsoever, including to refinance a Mortgage Loan, in
whole or in part, without the prior written consent of the Purchaser. It is
understood and agreed that all rights and benefits relating to the solicitation
of any Mortgagors and the attendant rights, title and interest in and to the
list of such Mortgagors and data relating to their Mortgages (including
insurance renewal dates) shall be transferred to the Purchaser pursuant hereto
on the related Closing Date and the Seller shall take no action to undermine
these rights and benefits. Notwithstanding the foregoing, it is understood and
agreed that promotions undertaken by the Seller or any affiliate of the Seller
which are directed to the general public at large, including, without
limitation, mass mailing, internet and e-mail solicitations, based in all
instances, on commercially acquired mailing lists (which may not be targeted at
the Mortgagors) and newspaper, radio and television advertisements shall not
constitute solicitation under this Section 29.
SECTION 30. Waiver of Trial by Jury.
THE SELLER AND THE PURCHASER EACH KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 31. Submission to Jurisdiction; Waivers.
The Seller hereby irrevocably and unconditionally:
(A) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT, OR FOR RECOGNITION AND
ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE
GENERAL JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, THE
FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT
IN SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH
ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR
PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO
PLEAD OR CLAIM THE SAME;
(C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR
PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED
OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL),
POSTAGE PREPAID, TO ITS ADDRESS SET FORTH HEREIN OR AT SUCH OTHER
ADDRESS OF WHICH THE PURCHASER SHALL HAVE BEEN NOTIFIED; AND
(D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO
EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR
SHALL LIMIT THE RIGHT TO SUE IN ANY OTHER JURISDICTION.
SECTION 32. Confidential Information.
The Seller and Purchaser understand and agree that this Agreement,
any other agreements executed in connection with the sale contemplated
hereunder, any agreements executed in connection with any Reconstitution, and
any offering circulars or other disclosure documents produced in connection with
any Reconstitution are confidential and proprietary to the Purchaser or Seller,
and the Seller and Purchaser agree to hold such documents confidential and not
to divulge such documents to anyone except (a) to the extent required by law or
judicial order or to enforce its rights or remedies under this Agreement, (b) to
the extent such information enters into the public domain other than through the
wrongful act of the Seller or the Purchaser, as the case may be, (c) as is
necessary in working with legal counsel, rating agencies, auditors, agents,
taxing authorities or other governmental agencies or (d) the federal income tax
treatment of the transactions hereunder, any fact relevant to understanding the
federal tax treatment of the transactions hereunder, and all materials of any
kind (including opinions or other tax analyses) relating to such federal income
tax treatment; provided that the Seller may not disclose the name of or
identifying information with respect to Purchaser or any pricing terms or other
nonpublic business or financial information that is unrelated to the purported
or claimed federal income tax treatment of the transactions hereunder and is not
relevant to understanding the purported or claimed federal income tax treatment
of the transactions hereunder. Moreover, the Seller understands and agrees that
this Agreement, any other agreements executed in connection with the sale
contemplated hereunder, any agreements executed in connection with the
securitization of the Mortgage Loans, and any offering circulars or other
disclosure documents produced in connection with such securitization are
confidential and proprietary to the Purchaser, and the Seller agrees to hold
such documents confidential and not to divulge such documents to anyone except
(a) to the extent required by law or judicial order or to enforce its rights or
remedies under this Agreement, (b) to the extent such information enters into
the public domain other than through the wrongful act of the Seller, or (c) as
is necessary in working with legal counsel, auditors, agents, rating agencies,
taxing authorities or other governmental agencies. The rights and obligations
set forth in this paragraph shall survive the Closing Date and shall not merge
into the closing documents but shall be independently enforceable by the parties
hereto.
SECTION 33. Compliance with Regulation AB.
Subsection 33.01 Intent of the Parties; Reasonableness.
The Purchaser and the Seller acknowledge and agree that the purpose
of Section 33 of this Agreement is to facilitate compliance by the Purchaser and
any Depositor with the provisions of Regulation AB and related rules and
regulations of the Commission. Although Regulation AB is applicable by its terms
only to offerings of asset-backed securities that are registered under the
Securities Act, the Company acknowledges that investors in privately offered
securities may require that the Purchaser or any Depositor provide comparable
disclosure in unregistered offerings. References in this Agreement to compliance
with Regulation AB include provision of comparable disclosure in private
offerings.
Neither the Purchaser nor any Depositor shall 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
thereunder (or the provision in a private offering of disclosure comparable to
that required under the Securities Act). The Seller 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 asset-backed securities markets, advice of
counsel, or otherwise, and agrees to comply with requests made by the Purchaser
or any Depositor in good faith for delivery of information under these
provisions on the basis of evolving interpretations of Regulation AB. In
connection with any Securitization Transaction, the Seller shall cooperate fully
with the Purchaser to deliver to the Purchaser (including any of its assignees
or designees) and any Depositor, any and all statements, reports,
certifications, records and any other information necessary in the good faith
determination of the Purchaser or any Depositor to permit the Purchaser or such
Depositor to comply with the provisions of Regulation AB, together with such
disclosures relating to the Seller, any Third-Party Originator and the Mortgage
Loans, or the servicing of the Mortgage Loans, reasonably believed by the
Purchaser or any Depositor to be necessary in order to effect such compliance.
The Purchaser (including any of its assignees or designees) shall
cooperate with the Seller by providing timely notice of requests for information
under these provisions and by reasonably limiting such requests to information
required, in the Purchaser's reasonable judgment, to comply with Regulation AB.
Subsection 33.02 Additional Representations and Warranties of the
Seller.
(a) The Seller shall be deemed to represent to the Purchaser and to
any Depositor, as of the date on which information is first provided to the
Purchaser or any Depositor under Subsection 33.03 that, except as disclosed in
writing to the Purchaser or such Depositor prior to such date: (i) there are no
material legal or governmental proceedings pending (or known to be contemplated)
against the Seller or any Third-Party Originator; and (ii) there are no
affiliations, relationships or transactions relating to the Seller or any
Third-Party Originator with respect to any Securitization Transaction and any
party thereto identified by the related Depositor of a type described in Item
1119 of Regulation AB.
(b) If so requested by the Purchaser or any Depositor on any date
following the date on which information is first provided to the Purchaser or
any Depositor under Subsection 33.03, the Seller shall, within five (5) 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
request, provide reasonably adequate disclosure of the pertinent facts, in
writing, to the requesting party.
Subsection 33.03 Information To Be Provided by the Seller.
In connection with any Securitization Transaction the Seller shall
(i) within five (5) Business Days following request by the Purchaser or any
Depositor, provide to the Purchaser and such Depositor (or, as applicable, cause
each Third-Party Originator to provide), in writing and in form and substance
reasonably satisfactory to the Purchaser and such Depositor, the information and
materials specified in paragraphs (a) and (b) of this Subsection, and (ii) as
promptly as practicable following notice to or discovery by the Seller, provide
to the Purchaser and any Depositor (in writing and in form and substance
reasonably satisfactory to the Purchaser and such Depositor) the information
specified in paragraph (d) of this Subsection.
(a) If so requested by the Purchaser or any Depositor, the Seller
shall provide such information regarding (i) the Seller, as originator of the
Mortgage Loans (including as an acquirer of Mortgage Loans from a Qualified
Correspondent), or (ii) each Third-Party Originator, as is requested for the
purpose of compliance with Items 1103(a)(1), 1105, 1110, 1117 and 1119 of
Regulation AB. Such information shall include, at a minimum:
(A) the originator's form of organization;
(B) a description of the originator's origination program and
how long the originator has been engaged in originating residential
mortgage loans, which description shall include a discussion of the
originator's experience in originating mortgage loans of a similar
type as the Mortgage Loans; information regarding the size and
composition of the originator's origination portfolio; and
information that may be material, in the good faith judgment of the
Purchaser or any Depositor, to an analysis of the performance of the
Mortgage Loans, including the originator's credit-granting or
underwriting criteria for mortgage loans of similar type(s) as the
Mortgage Loans and such other information as the Purchaser or any
Depositor may reasonably request for the purpose of compliance with
Item 1110(b)(2) of Regulation AB;
(C) a description of any material legal or governmental
proceedings pending (or known to be contemplated) against the Seller
and each Third-Party Originator; and
(D) a description of any affiliation or relationship between
the Seller, each Third-Party Originator and any of the following
parties to a Securitization Transaction, as such parties are
identified to the Seller by the Purchaser or any Depositor in
writing in advance of such Securitization Transaction:
1. the sponsor;
2. the depositor;
3. the issuing entity;
4. any servicer;
5. any trustee;
6. any originator;
7. any significant obligor;
8. any enhancement or support provider; and
9. any other material transaction party.
(b) If so requested by the Purchaser or any Depositor, the Seller
shall provide (or, as applicable, cause each Third-Party Originator to provide)
Static Pool Information with respect to the mortgage loans (of a similar type as
the Mortgage Loans, as reasonably identified by the Purchaser as provided below)
originated by (i) the Seller, if the Seller is an originator of Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
and/or (ii) each Third-Party Originator. Such Static Pool Information shall be
prepared by the Seller (or Third-Party Originator) on the basis of its
reasonable, good faith interpretation of the requirements of Item 1105(a)(1)-(3)
of Regulation AB. To the extent that there is reasonably available to the Seller
(or Third-Party Originator) Static Pool Information with respect to more than
one mortgage loan type, the Purchaser or any Depositor shall be entitled to
specify whether some or all of such information shall be provided pursuant to
this paragraph. The content of such Static Pool Information may be in the form
customarily provided by the Seller, and need not be customized for the Purchaser
or any Depositor. Such Static Pool Information for each vintage origination year
or prior securitized pool, as applicable, shall be presented in increments no
less frequently than quarterly over the life of the mortgage loans included in
the vintage origination year or prior securitized pool. The most recent periodic
increment must be as of a date no later than one hundred thirty-five (135) days
prior to the date of the prospectus or other offering document in which the
Static Pool Information is to be included or incorporated by reference. The
Static Pool Information shall be provided in an electronic format that provides
a permanent record of the information provided, such as a portable document
format (pdf) file, or other such electronic format reasonably required by the
Purchaser or the Depositor, as applicable.
Promptly following notice or discovery of a material error in Static
Pool Information provided pursuant to the immediately preceding paragraph
(including an omission to include therein information required to be provided
pursuant to such paragraph), the Seller shall provide corrected Static Pool
Information to the Purchaser or any Depositor, as applicable, in the same format
in which Static Pool Information was previously provided to such party by the
Seller.
If so requested by the Purchaser or any Depositor, the Seller shall
provide (or, as applicable, cause each Third-Party Originator to provide), at
the expense of the requesting party (to the extent of any additional incremental
expense associated with delivery pursuant to this Agreement), such agreed-upon
procedures letters of certified public accountants reasonably acceptable to the
Purchaser or Depositor, as applicable, pertaining to Static Pool Information
relating to prior securitized pools for securitizations closed on or after
January 1, 2006 or, in the case of Static Pool Information with respect to the
Seller's or Third-Party Originator's originations or purchases, to calendar
months commencing January 1, 2006, as the Purchaser or such Depositor shall
reasonably request. Such letters shall be addressed to and be for the benefit of
such parties as the Purchaser or such Depositor shall designate, which may
include, by way of example, any Sponsor, any Depositor and any broker dealer
acting as underwriter, placement agent or initial purchaser with respect to a
Securitization Transaction. Any such statement or letter may take the form of a
standard, generally applicable document accompanied by a reliance letter
authorizing reliance by the addressees designated by the Purchaser or such
Depositor.
With respect to those Mortgage Loans that were originated by Seller
and sold to the Purchaser pursuant to this Agreement and subsequently
securitized by the Purchaser or any of its Affiliates, the Purchaser shall, to
the extent consistent with then-current industry practice, cause the servicer
(or another party to such securitization) under the securitization to be
obligated to provide, information with respect to the Mortgage Loans from and
after cut-off date of such securitization necessary for the Seller to comply
with its obligations under Regulation AB, including, without limitation,
providing to the Seller static pool information, as set forth in Item 1105(a)(2)
and (3) of Regulation AB.
(c) [Reserved]
(d) If so requested by the Purchaser or any Depositor for the
purpose of satisfying its reporting obligation under the Exchange Act with
respect to any class of asset-backed securities, the Seller shall (or shall
cause each Third-Party Originator to) (i) notify the Purchaser and any Depositor
in writing of (A) any material litigation or governmental proceedings pending
against the Seller or any Third-Party Originator and (B) any affiliations or
relationships that develop following the closing date of a Securitization
Transaction between the Seller or any Third-Party Originator and any of the
parties specified in clause (D) of paragraph (a) of this Subsection (and any
other parties identified in writing by the requesting party) with respect to
such Securitization Transaction, and (ii) provide to the Purchaser and any
Depositor a description of such proceedings, affiliations or relationships.
Subsection 33.04 Indemnification.
The Seller shall indemnify the Purchaser, each affiliate of the
Purchaser, the Depositor and each of the following parties participating in a
Securitization Transaction: each sponsor and issuing entity; each Person
responsible for the preparation, execution or filing of any report required to
be filed with the Commission with respect to such Securitization Transaction, or
for execution of a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d)
under the Exchange Act with respect to such Securitization Transaction; each
broker dealer acting as underwriter, placement agent or initial purchaser, each
Person who controls any of such parties or the Depositor (within the meaning of
Section 15 of the Securities Act and Section 20 of the Exchange Act); and the
respective present and former directors, officers, employees and agents of each
of the foregoing and of the Depositor, 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 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'
letter or other material provided in written or electronic form under this
Section 33 by or on behalf of the Seller, or provided under this Section
33 by or on behalf of any Third-Party Originator (collectively, the
"Seller Information"), or (B) the omission or alleged omission to state in
the Seller Information a material fact required to be stated in the Seller
Information or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, by way of clarification, that clause (B) of this paragraph shall
be construed solely by reference to the Seller Information and not to any
other information communicated in connection with a sale or purchase of
securities, without regard to whether the Seller Information or any
portion thereof is presented together with or separately from such other
information;
(ii) any failure by the Seller or any Third-Party Originator to
deliver any information, report, certification, accountants' letter or
other material when and as required under this Section 33; or
(iii) any breach by the Seller of a representation or warranty set
forth in Subsection 33.02(a) or in a writing furnished pursuant to
Subsection 33.02(b) and made as of a date prior to the closing date of the
related Securitization Transaction, to the extent that such breach is not
cured by such closing date, or any breach by the Seller of a
representation or warranty in a writing furnished pursuant to Subsection
33.02(b) to the extent made as of a date subsequent to such closing date.
In the case of any failure of performance described in clause
(a)(ii) of this Section, the Seller shall promptly reimburse the Purchaser, any
Depositor, as applicable, and each Person responsible for the preparation,
execution or filing of any report required to be filed with the Commission with
respect to such Securitization Transaction, or for execution of a certification
pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect
to such Securitization Transaction, for all costs reasonably incurred by each
such party in order to obtain the information, report, certification,
accountants' letter or other material not delivered as required by the Seller or
any Third-Party Originator.
[Signatures Commence on Following Page]
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the date first above written.
XXXXXXX XXXXX MORTGAGE COMPANY, a New York
limited partnership
(Purchaser)
By: XXXXXXX XXXXX REAL ESTATE
FUNDING CORP., a New York
corporation, as General Partner
By:
------------------------------------
Name:
Title:
AAMES CAPITAL CORPORATION
(Seller)
By:
------------------------------------
Name:
Title:
EXHIBIT A
CONTENTS OF EACH MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall include
each of the following items, which shall be available for inspection by the
Purchaser and any prospective Purchaser, and which shall be delivered to the
Custodian, or to such other Person as the Purchaser shall designate in writing,
pursuant to Section 6 of the Flow Mortgage Loan Purchase and Warranties
Agreement to which this Exhibit is attached (the "Agreement"):
(a) the original Mortgage Note bearing all intervening endorsements,
endorsed "Pay to the order of _________, without recourse" and signed in the
name of the last endorsee (the "Last Endorsee") by an authorized officer. To the
extent that there is no room on the face of the Mortgage Notes for endorsements,
the endorsement may be contained on an allonge, if state law so allows and the
Custodian is so advised by the Seller that state law so allows. If the Mortgage
Loan was acquired by the Seller in a merger, the endorsement must be by "[Last
Endorsee], successor by merger to [name of predecessor]". If the Mortgage Loan
was acquired or originated by the Last Endorsee while doing business under
another name, the endorsement must be by "[Last Endorsee], formerly known as
[previous name]";
(b) the original of any guarantee executed in connection with the
Mortgage Note;
(c) the original Mortgage with evidence of recording thereon. If in
connection with any Mortgage Loan, the Seller cannot deliver or cause to be
delivered the original Mortgage with evidence of recording thereon on or prior
to the related Closing Date because of a delay caused by the public recording
office where such Mortgage has been delivered for recordation or because such
Mortgage has been lost or because such public recording office retains the
original recorded Mortgage, the Seller shall deliver or cause to be delivered to
the Custodian, a photocopy of such Mortgage, together with (i) in the case of a
delay caused by the public recording office, an Officer's Certificate of the
Seller (or certified by the title company, escrow agent, or closing attorney)
stating that such Mortgage has been dispatched to the appropriate public
recording office for recordation and that the original recorded Mortgage or a
copy of such Mortgage certified by such public recording office to be a true and
complete copy of the original recorded Mortgage will be promptly delivered to
the Custodian upon receipt thereof by the Seller; or (ii) in the case of a
Mortgage where a public recording office retains the original recorded Mortgage
or in the case where a Mortgage is lost after recordation in a public recording
office, a copy of such Mortgage certified by such public recording office to be
a true and complete copy of the original recorded Mortgage;
(d) the originals of all assumption, modification, consolidation or
extension agreements, if any, with evidence of recording thereon;
(e) except with respect to each MERS Designated Mortgage Loan, the
original Assignment of Mortgage for each Mortgage Loan, in form and substance
acceptable for recording. The Assignment of Mortgage must be duly recorded only
if recordation is either necessary under applicable law or commonly required by
private institutional mortgage investors in the area where the Mortgaged
Property is located or on direction of the Purchaser as provided in this
Agreement. If the Assignment of Mortgage is to be recorded, the Mortgage shall
be assigned to the Purchaser. If the Assignment of Mortgage is not to be
recorded, the Assignment of Mortgage shall be delivered in blank. If the
Mortgage Loan was acquired by the Seller in a merger, the Assignment of Mortgage
must be made by "Aames Capital Corporation, successor by merger to [name of
predecessor]". If the Mortgage Loan was acquired or originated by the Seller
while doing business under another name, the Assignment of Mortgage must be by
"Aames Capital Corporation, formerly known as [previous name]";
(f) the originals of all intervening assignments of mortgage (if
any) evidencing a complete chain of assignment from the originator to the Last
Endorsee (or to MERS with respect to each MERS Designated Mortgage Loan) with
evidence of recording thereon, or if any such intervening assignment has not
been returned from the applicable recording office or has been lost or if such
public recording office retains the original recorded assignments of mortgage,
the Seller shall deliver or cause to be delivered to the Custodian, a photocopy
of such intervening assignment, together with (i) in the case of a delay caused
by the public recording office, an Officer's Certificate of the Seller (or
certified by the title company, escrow agent, or closing attorney) stating that
such intervening assignment of mortgage has been dispatched to the appropriate
public recording office for recordation and that such original recorded
intervening assignment of mortgage or a copy of such intervening assignment of
mortgage certified by the appropriate public recording office to be a true and
complete copy of the original recorded intervening assignment of mortgage will
be promptly delivered to the Custodian upon receipt thereof by the Seller; or
(ii) in the case of an intervening assignment where a public recording office
retains the original recorded intervening assignment or in the case where an
intervening assignment is lost after recordation in a public recording office, a
copy of such intervening assignment certified by such public recording office to
be a true and complete copy of the original recorded intervening assignment;
(g) The original mortgagee policy of title insurance or, in the
event such original title policy is unavailable, a certified true copy of the
related policy binder or commitment for title certified to be true and complete
by the title insurance company; and
(h) security agreement, chattel mortgage or equivalent document
executed in connection with the Mortgage.
In the event an Officer's Certificate of the Seller is delivered to
the Purchaser because of a delay caused by the public recording office in
returning any recorded document, the Seller shall deliver to the Purchaser,
within ninety (90) days of the related Closing Date, an Officer's Certificate
which shall (i) identify the recorded document, (ii) state that the recorded
document has not been delivered to the Custodian due solely to a delay caused by
the public recording office, (iii) state the amount of time generally required
by the applicable recording office to record and return a document submitted for
recordation, and (iv) specify the date the applicable recorded document will be
delivered to the Custodian. An extension of the date specified in (iv) above may
be requested from the Purchaser, which consent shall not be unreasonably
withheld.
EXHIBIT B
CONTENTS OF EACH CREDIT FILE
(a) The original hazard insurance policy and, if required by law,
flood insurance policy.
(b) Residential loan application.
(c) Mortgage Loan closing statement.
(d) Verification of employment and income (if required pursuant to
the Underwriting Guidelines).
(e) Verification of acceptable evidence of source and amount of
downpayment (if required pursuant to the Underwriting Guidelines).
(f) Credit report on the Mortgagor.
(g) Residential appraisal report, if available.
(h) Photograph of the Mortgaged Property.
(i) Survey of the Mortgaged Property, if any.
(j) Copy of each instrument necessary to complete identification of
any exception set forth in the exception schedule in the title policy, i.e., map
or plat, restrictions, easements, sewer agreements, home association
declarations, etc.
(k) All required disclosure statements.
(l) If available, termite report, structural engineer's report,
water potability and septic certification.
(m) Sales contract, if applicable.
(n) Tax receipts, insurance premium receipts, ledger sheets, payment
history from date of origination, insurance claim files, correspondence, current
and historical computerized data files, and all other processing, underwriting
and closing papers and records which are customarily contained in a mortgage
loan file and which are required to document the Mortgage Loan or to service the
Mortgage Loan.
(o) Amortization schedule, if applicable.
EXHIBIT C
FORM OF SELLER'S AND INTERIM OFFICER'S CERTIFICATE
I, ____________________, hereby certify that I am the duly elected
[Vice] President of [Aames Capital Corporation] [Aames Funding Corporation]
[COMPANY], a [state] [federally] chartered institution organized under the laws
of the [state of California] [United States] (the "Company") and further as
follows:
1. Attached hereto as Exhibit 1 is a true, correct and complete copy
of the charter of the Company which is in full force and effect on the
date hereof and which has been in effect without amendment, waiver,
rescission or modification since ___________.
2. Attached hereto as Exhibit 2 is a true, correct and complete copy
of the bylaws of the Company which are in effect on the date hereof and
which have been in effect without amendment, waiver, rescission or
modification since ___________.
3. Attached hereto as Exhibit 3 is an original certificate of good
standing of the Company issued within ten (10) days of the date hereof,
and no event has occurred since the date thereof which would impair such
standing.
4. [Attached hereto as Exhibit 4 is a true, correct and complete
copy of the corporate resolutions of the Board of Directors of the Company
authorizing the Company to execute and deliver the Flow Mortgage Loan
Purchase and Warranties Agreement, dated as of April 1, 2006, by and
between Xxxxxxx Xxxxx Mortgage Company (the "Purchaser") and the Company
(the "Purchase Agreement"), and to endorse the Mortgage Notes and execute
the Assignments of Mortgages by original or facsimile signature, and such
resolutions are in effect on the date hereof and have been in effect
without amendment, waiver, rescission or modification since ____________.]
4. Attached hereto as Exhibit 4 is a true, correct and complete copy
of the corporate resolutions of the Board of Directors of the Company
authorizing the Company to execute and deliver, the Flow Interim Servicing
Agreement, dated as of April 1, 2006, by and between the Purchaser and the
Company (the "Interim Servicing Agreement"), and such resolutions are in
effect on the date hereof and have been in effect without amendment,
waiver, rescission or modification since ____________.]
5. Either (i) no consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Company of or compliance by the Company
with the [Purchase Agreement] [Interim Servicing Agreement] the sale of
the mortgage loans or the consummation of the transactions contemplated by
the agreements; or (ii) any required consent, approval, authorization or
order has been obtained by the Company.
6. Neither the consummation of the transactions contemplated by, nor
the fulfillment of the terms of the [Purchase Agreement] [Interim
Servicing Agreement] conflicts or will conflict with or results or will
result in a breach of or constitutes or will constitute a default under
the charter or by-laws of the Company, the terms of any indenture or, to
the best of the Company's knowledge, other agreement or instrument to
which the Company is a party or by which it is bound or to which it is
subject, or any statute or order, rule, regulations, writ, injunction or
decree of any court, governmental authority or regulatory body to which
the Company is subject or by which it is bound.
7. To the best of my knowledge, there is no action, suit, proceeding
or investigation pending or threatened against the Company which, in my
judgment, either in any one instance or in the aggregate, may result in
any material adverse change in the business, operations, financial
condition, properties or assets of the Company or in any material
impairment of the right or ability of the Company to carry on its business
substantially as now conducted or in any material liability on the part of
the Company or which would draw into question the validity of the
[Purchase Agreement] [Interim Servicing Agreement], or the mortgage loans
or of any action taken or to be taken in connection with the transactions
contemplated hereby, or which would be likely to impair materially the
ability of the Company to perform under the terms of the Agreements.
8. Each person listed on Exhibit 5 attached hereto who, as an
officer or representative of the Company, signed the [Purchase Agreement]
[Interim Servicing Agreement] and any other document delivered or on the
date hereof in connection with any purchase described in the agreements
set forth above was, at the respective times of such signing and delivery,
and is now, a duly elected or appointed, qualified and acting officer or
representative of the Company, who holds the office set forth opposite his
or her name on Exhibit 5, and the signatures of such persons appearing on
such documents are their genuine signatures.
9. The Company is duly authorized to engage in the transactions
described and contemplated in the [Purchase Agreement] [Interim Servicing
Agreement].
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the
seal of the Company.
Dated: ____________________ By:___________________________
Name:_________________________
[Seal] Title: [Vice] President
I, ________________________, an [Assistant] Secretary of
______________ [COMPANY], hereby certify that ____________ is the duly elected,
qualified and acting [Vice] President of the Company and that the signature
appearing above is [her] [his] genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated: ____________________ By:___________________________
Name:_________________________
Title: [Assistant] Secretary
EXHIBIT 5 to
Company's Officer's Certificate
NAME TITLE SIGNATURE
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EXHIBIT D
FORM OF OPINION OF COUNSEL
(date)
Xxxxxxx Xxxxx Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
You have requested [our] [my] opinion, as [Assistant] General
Counsel to Aames Capital Corporation (the "Company") and Aames Funding
Corporation (the "Interim Servicer"), with respect to certain matters in
connection with the sale by the Company of the Mortgage Loans pursuant to that
certain Flow Mortgage Loan Purchase and Warranties Agreement by and between the
Company and Xxxxxxx Xxxxx Mortgage Company (the "Purchaser"), dated as of April
1, 2006 (the "Purchase Agreement") which sale is in the form of whole loans and
that certain Flow Interim Servicing Agreement by and between the Interim
Servicer and Xxxxxxx Xxxxx Mortgage Company (the "Purchaser"), dated as of April
1, 2006 (the "Interim Servicing Agreement", together with the Purchase
Agreement, the "Agreements"). Capitalized terms not otherwise defined herein
have the meanings set forth in the Purchase Agreement.
[We] [I] have examined the following documents:
1. the Agreements;
2. the form of Assignment of Mortgage;
3. the form of endorsement of the Mortgage Notes; and
4. such other documents, records and papers as we have deemed
necessary and relevant as a basis for this opinion.
To the extent [we] [I] have deemed necessary and proper, [we] [I]
have relied upon the representations and warranties of each of the Company and
the Interim Servicer contained in the Purchase Agreement and the Interim
Servicing Agreement. [We] [I] have assumed the authenticity of all documents
submitted to [us] [me] as originals, the genuineness of all signatures, the
legal capacity of natural persons and the conformity to the originals of all
documents.
Based upon the foregoing, it is [our] [my] opinion that:
1. Each of the Company and the Interim Servicer is a corporation
duly organized, validly existing and in good standing under
the laws of California and is qualified to transact business
in, and is in good standing under, the laws of California.
2. Each of the Company and the Interim Servicer has the power to
engage in the transactions contemplated by the Agreements to
which it is a party and all requisite power, authority and
legal right to execute and deliver such Agreements and to
perform and observe the terms and conditions of such
Agreements.
3. Each Agreement to which it is a party has been duly
authorized, executed and delivered by the Company and Interim
Servicer and is a legal, valid and binding agreement
enforceable in accordance with its respective terms against
the Company and Interim Servicer, subject to bankruptcy laws
and other similar laws of general application affecting rights
of creditors and subject to the application of the rules of
equity, including those respecting the availability of
specific performance, none of which will materially interfere
with the realization of the benefits provided thereunder or
with the Purchaser's ownership of the Mortgage Loans.
4. Each of the Company and the Interim Servicer has been duly
authorized to allow any of its officers to execute any and all
documents by original signature in order to complete the
transactions contemplated by the Agreement to which it is a
party.
5. The Company has been duly authorized to allow any of its
officers to execute by original [or facsimile] signature the
endorsements to the Mortgage Notes and the Assignments of
Mortgages, and the original [or facsimile] signature of the
officer at the Company executing the endorsements to the
Mortgage Notes and the Assignments of Mortgages represents the
legal and valid signature of said officer of the Company.
6. Either (i) no consent, approval, authorization or order of any
court or governmental agency or body is required for the
execution, delivery and performance by each of the Company or
Interim Servicer of or compliance with the Agreement to which
it is a party and the sale of the Mortgage Loans by the
Company or the consummation of the transactions contemplated
by the Agreement to which it is a party or (ii) any required
consent, approval, authorization or order has been obtained by
each of the Company and the Interim Servicer.
7. Neither the consummation of the transactions contemplated by,
nor the fulfillment of the terms of, the Agreements to which
it is a party conflicts or will conflict with or results or
will result in a breach of or constitutes or will constitute a
default under the charter or by-laws of either the Company or
the Interim Servicer, the terms of any indenture or, to the
best of the Company's or Interim Servicer's knowledge, other
agreement or instrument to which the Company or the Interim
Servicer is a party or by which it is bound or to which it is
subject, or violates any statute or order, rule, regulations,
writ, injunction or decree of any court, governmental
authority or regulatory body to which the Company or Interim
Servicer is subject or by which it is bound.
8. There is no action, suit, proceeding or investigation pending
or, to the best of [our] [my] knowledge, threatened against
either the Company or the Interim Servicer which, in [our]
[my] judgment, either in any one instance or in the aggregate,
may result in any material adverse change in the business,
operations, financial condition, properties or assets of
either the Company or the Interim Servicer or in any material
impairment of the right or ability of either the Company or
Interim Servicer to carry on its business substantially as now
conducted or in any material liability on the part of either
the Company or Interim Servicer or which would draw into
question the validity of the Agreements to which it is a party
or the Mortgage Loans or of any action taken or to be taken in
connection with the transactions contemplated thereby, or
which would be likely to impair materially the ability of
either the Company or the Interim Servicer to perform under
the terms of the Agreements.
9. The sale of each Mortgage Note and Mortgage as and in the
manner contemplated by the Purchase Agreement is sufficient to
fully transfer to the Purchaser all right, title and interest
of the Company thereto as noteholder and mortgagee.
10. The Mortgages have been duly assigned and the Mortgage Notes
have been duly endorsed as provided in Exhibit A to the
Purchase Agreement. The Assignments of Mortgage are in
recordable form, except for the insertion of the name of the
assignee, and upon the name of the assignee being inserted,
are acceptable for recording under the laws of the state where
each related Mortgaged Property is located. The endorsement of
the Mortgage Notes, the delivery to the Purchaser, or its
designee, of the Assignments of Mortgage, and the delivery of
the original endorsed Mortgage Notes to the Purchaser, or its
designee, are sufficient to permit the Purchaser to avail
itself of all protection available under applicable law
against the claims of any present or future creditors of the
Company, and are sufficient to prevent any other sale,
transfer, assignment, pledge or hypothecation of the Mortgages
and the Mortgage Notes by the Company from being enforceable.
This opinion is given to you for your sole benefit, and no other
person or entity is entitled to rely hereon except that the purchaser or
purchasers to which you initially and directly resell the Mortgage Loans may
rely on this opinion as if it were addressed to them as of its date.
Very truly yours,
___________________________
[Name]
[Assistant] General Counsel
EXHIBIT E
FORM OF SECURITY RELEASE CERTIFICATION
___________________, 200__
[Federal Home Loan Bank of
______ (the "Association")]
________________________
________________________
________________________
Attention: ___________________________
___________________________
Re: Notice of Sale and Release of Collateral
Dear Sirs:
This letter serves as notice that Aames Capital Corporation a
corporation, organized pursuant to the laws of California (the "Company") has
committed to sell to Xxxxxxx Xxxxx Mortgage Company under a Flow Mortgage Loan
Purchase and Warranties Agreement, dated as of April 1, 2006, certain mortgage
loans originated by the Association. The Company warrants that the mortgage
loans to be sold to Xxxxxxx Xxxxx Mortgage Company are in addition to and beyond
any collateral required to secure advances made by the Association to the
Company.
The Company acknowledges that the mortgage loans to be sold to
Xxxxxxx Xxxxx Mortgage Company shall not be used as additional or substitute
collateral for advances made by the Association. Xxxxxxx Xxxxx Mortgage Company
understands that the balance of the Company's mortgage loan portfolio may be
used as collateral or additional collateral for advances made by the
Association, and confirms that it has no interest therein.
Execution of this letter by the Association shall constitute a full
and complete release of any security interest, claim, or lien which the
Association may have against the mortgage loans to be sold to Xxxxxxx Xxxxx
Mortgage Company.
Very truly yours,
________________________
By:____________________________________
Name:
Title:
Date:
Acknowledged and approved:
_____________________________
By:______________________________
Name:
Title:
Date:
EXHIBIT F
FORM OF SECURITY RELEASE CERTIFICATION
I. Release of Security Interest
The financial institution named below hereby relinquishes any and
all right, title and interest it may have in all Mortgage Loans to be purchased
by Xxxxxxx Xxxxx Mortgage Company from Aames Capital Corporation (the "Company")
pursuant to that certain Flow Mortgage Loan Purchase and Warranties Agreement,
dated as of April 1, 2006, and certifies that all notes, mortgages, assignments
and other documents in its possession relating to such Mortgage Loans have been
delivered and released to Xxxxxxx Xxxxx Mortgage Company or its designees, as of
the date and time of the sale of such Mortgage Loans to Xxxxxxx Xxxxx Mortgage
Company.
Name and Address of Financial
Institution
[FINANCIAL INSTITUTION]
[ADDRESS]
By:____________________________________
Name:
Title:
II. Certification of Release
The Company named below hereby certifies to Xxxxxxx Xxxxx Mortgage
Company that, as of the date and time of the sale of the above-mentioned
Mortgage Loans, the security interests in the Mortgage Loans released by the
above-named financial institution comprise all security interests relating to or
affecting any and all such Mortgage Loans. The Company warrants that, as of such
time, there are and will be no other security interests affecting any or all of
such Mortgage Loans.
AAMES CAPITAL CORPORATION
By:____________________________________
Name:
Title:
EXHIBIT G
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated ______________, between
__________________________________, a ___________________ corporation
("Assignor") and ________________________________, a __________________
corporation ("Assignee"):
For good and valuable consideration the receipt and sufficiency of
which hereby are acknowledged, and of the mutual covenants herein contained, the
parties hereto hereby agree as follows:
1. The Assignor hereby grants, transfers, conveys and assigns to
Assignee, as Purchaser, all of the right, title and interest of Assignor with
respect to the mortgage loans listed on Exhibit A attached hereto (the "Mortgage
Loans"), and with respect to such Mortgage Loans, in, to and under (a) that
certain Flow Mortgage Loan Purchase and Warranties Agreement dated as of April
1, 2006 and (b) that certain Flow Interim Servicing Agreement dated as of April
1, 2006, between the Purchaser and Aames Funding Corporation (the "Servicing
Agreement" and, together with the Purchase Agreement, the "Agreements").
2. The Assignor warrants and represents to, and covenants with, the
Assignee that:
a. The Assignor is the lawful owner of the Mortgage Loans with
the full right to transfer the Mortgage Loans free from any and all claims and
encumbrances whatsoever;
b. The Assignor has not received notice of, and has no
knowledge of, any offsets, counterclaims or other defenses available to the
Seller with respect to the Agreements or the Mortgage Loans;
c. The Assignor has not waived or agreed to any waiver under,
or agreed to any amendment or other modification of, the Agreements. The
Assignor has no knowledge of, and has not received notice of, any waivers under
or amendments or other modifications of, or assignments of rights or obligations
under, the Agreements; and
d. Neither the Assignor nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Mortgage Loans
or any interest in the Mortgage Loans, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Mortgage Loans, or any interest in
the Mortgage Loans or otherwise approached or negotiated with respect to the
Mortgage Loans, or any interest in the Mortgage with any person in any manner,
or made any general solicitation by means of general advertising or in any other
manner, or taken any other action which would constitute a distribution of the
Mortgage Loans under the Securities Act of 1933, as amended (the "1933 Act") or
which would render the disposition of the Mortgage Loans a violation of Section
5 of the 1933 Act or require registration pursuant thereto.
3. The Assignee warrants and represents to, and covenants with, the
Assignor and the Seller pursuant to the Agreements that:
a. The Assignee is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, and has all requisite corporate power and authority to acquire,
own and purchase the Mortgage Loans;
b. The Assignee has full corporate power and authority to
execute, deliver and perform under this Assignment and Assumption Agreement, and
to consummate the transactions set forth herein. The execution, delivery and
performance of the Assignee of this Assignment and Assumption Agreement, and the
consummation by it of the transactions contemplated hereby, have been duly
authorized by all necessary corporate action of the Assignee. This Assignment
and Assumption Agreement has been duly executed and delivered by the Assignee
and constitutes the valid and legally binding obligation of the Assignee
enforceable against the Assignee in accordance with its respective terms;
c. To the best of Assignee's knowledge, no material consent,
approval, order or authorization of, or declaration, filing or registration
with, any governmental entity is required to be obtained or made by the Assignee
in connection with the execution, delivery or performance by the Assignee of
this Assignment and Assumption Agreement, or the consummation by it of the
transactions contemplated hereby;
d. The Assignee agrees to be bound, as Purchaser, by all of
the terms, covenants and conditions of the Agreements, the Mortgage Loans, and
from and after the date hereof, the Assignee assumes for the benefit of each of
the Seller, the Assignor and the Custodian all of the Assignor's obligations as
Purchaser thereunder; including, without limitation, the limitation on
assignment set forth in Section 22 of the Purchase Agreement;
e. The Assignee understands that the Mortgage Loans have not
been registered under the 1933 Act or the securities laws of any state;
f. The purchase price being paid by the Assignee for the
Mortgage Loans is in excess of $250,000 and will be paid by cash remittance of
the full purchase price within sixty (60) days of the sale;
g. The Assignee is acquiring the Mortgage Loans for investment
for its own account only and not for any other person;
h. The Assignee considers itself a substantial, sophisticated
institutional investor having such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of
investment in the Mortgage Loans;
i. The Assignee has been furnished with all information
regarding the Mortgage Loans that it has requested from the Assignor or the
Seller;
j. Neither the Assignee nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Mortgage Loans
or any interest in the Mortgage Loans, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Mortgage Loans or any interest in
the Mortgage Loans, or otherwise approached or negotiated with respect to the
Mortgage Loans or any interest in the Mortgage Loans with any person in any
manner which would constitute a distribution of the Mortgage Loans under the
1933 Act or which would render the disposition of the Mortgage Loans a violation
of Section 5 of the 1933 Act or require registration pursuant thereto, nor will
it act, nor has it authorized or will it authorize any person to act, in such
manner with respect to the Mortgage Loans; and
k. Either: (1) the Assignee is not an employee benefit plan
("Plan") within the meaning of section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") or a plan (also "Plan") within the
meaning of section 4975(e)(1) of the Internal Revenue Code of 1986, as amended
("Code"), and the Assignee is not directly or indirectly purchasing the Mortgage
Loans on behalf of, investment manager of, as named fiduciary of, as Trustee of,
or with assets of, a Plan; or (2) the Assignee's purchase of the Mortgage Loans
will not result in a prohibited transaction under section 406 of ERISA or
section 4975 of the Code.
4. (a) The Assignee's address for purposes of all notices and
correspondence related to the Mortgage Loans, this Assignment and Assumption
Agreement and the Agreements is:
The Assignee's wire instructions for purposes of all remittances and
payments related to the Mortgage Loans are:
(b) The Assignor's address for purposes for all notices and
correspondence related to the Mortgage Loans and this Assignment and Assumption
Agreement is:
5. This Assignment and Assumption Agreement shall be construed in
accordance with the laws of the State of New York and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws, except to the extent preempted by federal law.
6. This Assignment and Assumption Agreement shall inure to the
benefit of the successors and assigns of the parties hereto. This Assignment and
Assumption Agreement may not be assigned by the Assignee without the express
written consent of the Assignor. Any entity into which the Assignor or Assignee
may be merged or consolidated shall, without the requirement for any further
writing, be deemed the Assignor or Assignee, respectively, hereunder.
7. No term or provision of this Assignment and Assumption Agreement
may be waived or modified unless such waiver or modification is in writing and
signed by the party against whom such waiver or modification is sought to be
enforced.
8. This Assignment and Assumption Agreement shall survive the
conveyance of the Mortgage Loans and the assignment of the Agreements by the
Assignor.
9. Notwithstanding the assignment of the Agreements by either the
Assignor or Assignee, this Assignment and Assumption Agreement shall not be
deemed assigned by the Assignor or the Assignee unless assigned by separate
written instrument.
10. For the purpose for facilitating the execution of this
Assignment and Assumption Agreement as herein provided and for other purposes,
this Assignment and Assumption Agreement may be executed simultaneously in any
number of counterparts, each of which counterparts shall be deemed to be an
original, and such counterparts shall constitute and be one and the same
instrument.
IN WITNESS WHEREOF, the parties have caused this Assignment and
Assumption Agreement to be executed by their duly authorized officers as of the
date first above written.
______________________________ ______________________________
Assignor Assignee
By:___________________________ By:___________________________
Name: Name:
Title: Title:
Taxpayer Taxpayer
Identification No.____________ Identification No.____________
EXHIBIT H
ORIGINATOR'S UNDERWRITING GUIDELINES
EXHIBIT I
ASSIGNMENT AND CONVEYANCE
On this __ day of _________, 200_, Aames Capital Corporation, as the
Seller, under that certain Flow Mortgage Loan Purchase and Warranties Agreement,
dated as of April 1, 2006 (the "Agreement") and that certain Purchase Price and
Terms Agreement dated as of [_________] does hereby sell, transfer, assign, set
over and convey to Xxxxxxx Xxxxx Mortgage Company, as Purchaser under the
Agreement all rights, title and interest of the Seller in and to (a) the
Mortgage Loans listed on the related Mortgage Loan Schedule attached as Exhibit
1 hereto, and (b) the Servicing Rights, together with the related Mortgage Files
and all rights and obligations arising under the documents contained therein.
Pursuant to Subsection 6.03 of the Agreement, the Seller has delivered to the
Custodian the documents for each Mortgage Loan to be purchased as set forth in
the Agreement. The ownership of each Mortgage Note, Mortgage, and the contents
of each Mortgage File is vested in the Purchaser and the ownership of all
records and documents with respect to the related Mortgage Loan prepared by or
which come into the possession of the Seller shall immediately vest in the
Purchaser and shall be delivered promptly by the Seller to the Purchaser. The
Mortgage Loans will be interim serviced from and after the date hereof for an
interim period pursuant to the Interim Servicing Agreement between the Purchaser
and Aames Funding Corporation, as interim servicer. The Mortgage Loans have the
pool characteristics set forth on Exhibit 2 hereto.
The Seller confirms to the Purchaser that, unless otherwise agreed
upon in writing by the Seller and the Purchaser, the representations and
warranties set forth in Subsection 9.02 of the Agreement with respect to the
Mortgage Loans listed on the Mortgage Loan Schedule attached hereto, and the
representations and warranties in Subsection 9.01 of the Agreement with respect
to the Seller are true and correct as of the date hereof.
Capitalized terms used herein and not otherwise defined shall have
the meanings set forth in the Agreement.
AAMES CAPITAL CORPORATION
(Seller)
By:____________________________________
Name:
Title:
AAMES FUNDING CORPORATION
(Interim Servicer)
By:____________________________________
Name:
Title:
Exhibit 1 to Assignment and Conveyance
Mortgage Loan Schedule
Exhibit 2 to Assignment and Conveyance
Pool Characteristics of the Mortgage Loans as delivered on the Closing Date
EXHIBIT J
FORM OF INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AND CONTRIBUTION AGREEMENT dated
[_______], 200___ ("Agreement") between GS Mortgage Securities Corp., a
Delaware corporation (the "Depositor"), and [___________________], a
[_________] corporation (the "Indemnifying Party").
W I T N E S S E T H:
WHEREAS, the Indemnifying Party or its Affiliate originated or
acquired the Mortgage Loans and subsequently sold the Mortgage Loans to an
Affiliate of the Depositor in anticipation of the securitization transaction;
and
WHEREAS, as an inducement to the Depositor to enter into the
Assignment and Recognition Agreement, to the Underwriter[s] to enter into the
Underwriting Agreement (as defined herein), and to the Initial Purchaser[s] to
enter into the Certificate Purchase Agreement (as defined herein), the
Indemnifying Party wishes to provide for indemnification and contribution on the
terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and of other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
Subsection 1.01 Certain Defined Terms. The following terms shall
have the meanings set forth below, unless the context clearly indicates
otherwise:
1933 Act: The Securities Act of 1933, as amended.
1934 Act: The Securities Exchange Act of 1934, as amended.
ABS Informational and Computational Material: Any written
communication as defined in Item 1101(a) of Regulation AB under the 1933 Act and
the 1934 Act, as amended from time to time.
Agreement: This Indemnification and Contribution Agreement, as the
same may be amended in accordance with the terms hereof.
Certificate Purchase Agreement: The Purchase Agreement, dated as of
[______], 200___, [among] the Depositor and the Initial Purchaser[s], relating
to the Privately Offered Certificates.
Free Writing Prospectus: Any written communication that constitutes
a "free writing prospectus," as defined in Rule 405 under the 1933 Act.
GSMC: Xxxxxxx Xxxxx Mortgage Company, a New York limited
partnership, and its successors and assigns.
Indemnified Parties: As defined in Section 3.01.
Indemnifying Party Information: (A) All information in the
Prospectus Supplement, the Offering Circular, ABS Informational and
Computational Material or any Free Writing Prospectus or any amendment or
supplement thereto, (i) contained under the headings ["Transaction
Overview--Parties--The Responsible Party"] and ["The Mortgage Loan
Pool--Underwriting Guidelines"] and (ii) regarding the Mortgage Loans, the
related Mortgagors and/or the related Mortgaged Properties (but in the case of
this clause (ii), only to the extent any untrue statement or omission or alleged
untrue statement or omission arises from or is based upon errors or omissions in
the information concerning the Mortgage Loans, the related Mortgagors and/or the
related Mortgaged Properties, as applicable, provided to the Depositor or any
Affiliate thereof by or on behalf of the Indemnifying Party or any Affiliate
thereof), and (B) [and static pool information regarding mortgage loans
originated or acquired by the Seller [and included in the Prospectus Supplement,
the Offering Circular, ABS Informational and Computational Material or the Free
Writing Prospectus] [incorporated by reference from the website located at
______________].
Offering Circular: The offering circular, dated [_______], 200___,
relating to the private offering of the Privately Offered Certificates.
Person: Any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Pooling and Servicing Agreement: The Pooling and Servicing
Agreement, dated as of [_______], 200___, among the Depositor, the Indemnifying
Party, [Servicer], as servicer, and [Trustee], as trustee.
Privately Offered Certificates: [__________________], issued
pursuant to the Pooling and Servicing Agreement.
Prospectus Supplement: The prospectus supplement, dated [______],
200___, relating to the public offering of the Publicly Offered Certificates.
Publicly Offered Certificates: [______________________________],
issued pursuant to the Pooling and Servicing Agreement.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or
by the staff of the Commission, or as may be provided by the Commission or its
staff from time to time.
Underwriters: Xxxxxxx, Xxxxx & Co., a New York limited partnership[,
and [____________], a [___________] corporation], and their successors and
assigns.
Underwriting Agreement: The Underwriting Agreement, dated as of
[________], 200__, [among] the Depositor and the Underwriter[s], relating to the
Publicly Offered Certificates.
Other Terms. Capitalized terms used but not defined herein shall
have the meanings assigned to such terms in the Pooling and Servicing Agreement.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
(a) Each party hereto represents and warrants that it has all
requisite corporate power and authority to execute, deliver and perform its
obligations under this Agreement;
(b) Each party hereto represents and warrants that this Agreement
has been duly authorized, executed and delivered by such party;
(c) Each party hereto represents and warrants that assuming the due
authorization, execution and delivery by each other party hereto, this Agreement
constitutes the legal, valid and binding obligation of such party; and
(d) The Indemnifying Party hereto represents that the Indemnifying
Party Information satisfies the requirements of the applicable provisions of
Regulation AB.
SECTION 3. INDEMNIFICATION
Subsection 3.01 Indemnification by the Indemnifying Party of the
Depositor and the Underwriters.
(a) The Indemnifying Party shall indemnify and hold harmless the
Depositor, GSMC, [each of] the Underwriter[s], the Initial Purchaser[s], and
their respective Affiliates and their respective present and former directors,
officers, partners and each Person, if any, that controls the Depositor, GSMC,
such Underwriter, such Initial Purchaser, or such Affiliate, within the meaning
of either the 1933 Act or the 1934 Act (collectively, the "Indemnified Parties")
against any and all losses, claims, damages, penalties, fines, forfeitures, or
liabilities, joint or several, to which each such Indemnified Party may become
subject, under the 1933 Act, the 1934 Act or otherwise, to the extent that such
losses, claims, damages, penalties, fines, forfeitures, or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any breach of the
representation and warranty set forth in Section 2(d) above or (ii) any untrue
statement or alleged untrue statement of any material fact contained in the
Prospectus Supplement, the Offering Circular, the ABS Informational and
Computational Material, any Free Writing Prospectus or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading, to the extent that such untrue statement or
alleged untrue statement or omission or alleged omission relates to information
set forth in the Indemnifying Party Information, and the Indemnifying Party
shall in each case reimburse each Indemnified Party for any legal or other
expenses reasonably incurred by such Indemnified Party in connection with
investigating or defending any such loss, claim, damage, liability, penalties,
fines, forfeitures, or action. The Indemnifying Party's liability under this
Section 3.01 shall be in addition to any other liability that the Indemnifying
Party may otherwise have.
(b) If the indemnification provided for in this Section 3.01 shall
for any reason be unavailable to an Indemnified Party under this Section 3.01,
then the party which would otherwise be obligated to indemnify with respect
thereto, on the one hand, and the parties which would otherwise be entitled to
be indemnified, on the other hand, shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated herein and
incurred by the parties hereto in such proportions that are appropriate to
reflect the relative fault of the Depositor, GSMC, the Underwriter[s], and the
Initial Purchaser[s], on one hand, and the Indemnifying Party, on the other
hand, in connection with the applicable misstatements or omissions as well as
any other relevant equitable considerations. Notwithstanding the foregoing, no
Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any Person that
was not guilty of such fraudulent misrepresentation. For purposes of this
Section 3.01, each director, officer, partner and controlling Person, of the
Depositor, GSMC, the Underwriter[s] and the Initial Purchaser[s] and their
respective Affiliates shall have the same rights to contribution as such Person.
Subsection 3.02 Notification; Procedural Matters. Promptly after
receipt by an Indemnified Party under Section 3.01 of notice of any claim or the
commencement of any action, such Indemnified Party shall, if a claim in respect
thereof is to be made against the Indemnifying Party under Section 3.01, notify
the Indemnifying Party (or other contributing party) in writing of the claim or
the commencement of such action; provided, however, that the failure to notify
the Indemnifying Party (or other contributing party) shall not relieve it from
any liability which it may have under Section 3.01 except to the extent it has
been materially prejudiced by such failure; and provided further, however, that
the failure to notify the Indemnifying Party shall not relieve it from any
liability which it may have to any Indemnified Party otherwise than under
Section 3.01. In case any such action is brought against any Indemnified Party
and it notifies the Indemnifying Party of the commencement thereof, the
Indemnifying Party shall be entitled to participate therein and, to the extent
that, by written notice delivered to the Indemnified Party promptly after
receiving the aforesaid notice from such Indemnified Party, the Indemnifying
Party elects to assume the defense thereof, it may participate with counsel
reasonably satisfactory to such Indemnified Party; provided, however, that if
the defendants in any such action include both the Indemnified Party and the
Indemnifying Party and the Indemnified Party or parties shall reasonably have
concluded that there may be legal defenses available to it or them and/or other
Indemnified Parties that are different from or additional to those available to
the Indemnifying Party, the Indemnified Party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such Indemnified Party or
parties. Upon receipt of notice from the Indemnifying Party to such Indemnified
Party of its election so to assume the defense of such action and approval by
the Indemnified Party of such counsel, the Indemnifying Party shall not be
liable to such Indemnified Party under this paragraph for any legal or other
expenses subsequently incurred by such Indemnified Party in connection with the
defense thereof, unless (i) the Indemnified Party shall have employed separate
counsel (plus any local counsel) in connection with the assertion of legal
defenses in accordance with the proviso to the immediately preceding sentence,
(ii) the Indemnifying Party shall not have employed counsel reasonably
satisfactory to the Indemnified Party to represent the Indemnified Party within
a reasonable time after notice of commencement of the action or (iii) the
Indemnifying Party shall have authorized the employment of counsel for the
Indemnified Party at the expense of the Indemnifying Party. No party shall be
liable for contribution with respect to any action or claim settled without its
consent, which consent shall not be unreasonably withheld. In no event shall the
Indemnifying Party be liable for the fees and expenses of more than one counsel
representing the Indemnified Parties (in addition to any local counsel) separate
from its own counsel for all Indemnified Parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances.
SECTION 4. GENERAL.
Subsection 4.01 Survival. This Agreement and the obligations of the
parties hereunder shall survive the purchase and sale of the Publicly Offered
Certificates and the Privately Offered Certificates.
Subsection 4.02 Successors. This Agreement shall inure to the
benefit of and be binding upon the parties hereto, each Indemnified Party and
their respective successors and assigns, and no other Person shall have any
right or obligation hereunder.
Subsection 4.03 Applicable Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York without
giving effect to principles of conflict of laws.
Subsection 4.04 Miscellaneous. Neither this Agreement nor any term
hereof may be changed, waived, discharged or terminated except by a writing
signed by the party against which enforcement of such change, waiver, discharge
or termination is sought. This Agreement may be signed in any number of
counterparts, each of which shall be deemed an original, which taken together
shall constitute one and the same instrument.
Subsection 4.05 Notices. All communications hereunder shall be in
writing and shall be deemed to have been duly given when delivered to (a) in the
case of the Depositor, GSMC, the Underwriter[s], or the Initial Purchaser[s], GS
Mortgage Securities Corp., Xxxxxxx Xxxxx Mortgage Company or Xxxxxxx, Xxxxx &
Co. c/o Goldman, Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Principal Finance Group/Xxxxxxxxxxx X. Xxxxxxx, and (b) in the case
of the Indemnifying Party: [______________], [Address], Attention:
[____________].
Subsection 4.06 Submission To Jurisdiction; Waivers. The
Indemnifying Party hereby irrevocably and unconditionally:
(A) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY
JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK, THE FEDERAL COURTS OF THE UNITED STATES OF
AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY
THEREOF;
(B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN
SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY
SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT
COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR
ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET
FORTH HEREIN OR AT SUCH OTHER ADDRESS OF WHICH THE DEPOSITOR SHALL HAVE BEEN
NOTIFIED; AND
(D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT
TO SUE IN ANY OTHER JURISDICTION.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have executed this Agreement by
their duly authorized officers as of the date first above written.
GS MORTGAGE SECURITIES CORP.
By:____________________________________
Name:
Title:
[INDEMNIFYING PARTY]
By:____________________________________
Name:
Title:
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT, dated May 26,
2006 ("Agreement"), is among Xxxxxxx Xxxxx Mortgage Company ("Assignor"), GS
Mortgage Securities Corp. ("Assignee"), and Aames Capital Corporation (the
"Company").
For and in consideration of good and valuable consideration the
receipt and sufficiency of which hereby are acknowledged, and of the mutual
covenants herein contained, the parties hereto hereby agree as follows:
Assignment, Assumption and Conveyance
1. The Assignor hereby conveys, sells, grants, transfers and assigns
to the Assignee all of the right, title and interest (other than those rights
specifically retained by the Assignor pursuant to this Agreement) of the
Assignor, as purchaser, in, to and under (a) those certain mortgage loans listed
on the schedule (the "Mortgage Loan Schedule") attached hereto as Exhibit A (the
"Mortgage Loans"), (b) solely insofar as it relates to the Mortgage Loans, that
certain Flow Mortgage Loan Purchase and Warranties Agreement, dated as of April
1, 2006 (the "Purchase Agreement"), between the Assignor, as purchaser (in such
capacity, the "Purchaser"), and the Company, as seller. The Assignor hereby
agrees that it will (i) deliver possession of the notes evidencing the Mortgage
Loans to, or at the direction of, the Assignee or its designee and (ii) take in
a timely manner all necessary steps under all applicable laws to convey and to
perfect the conveyance of the Mortgage Loans as required under the Pooling
Agreement (as defined below).
The Assignor specifically reserves and does not assign to the
Assignee hereunder (i) any and all right, title and interest in, to and under
and any obligations of the Assignor with respect to any mortgage loans subject
to the Purchase Agreement that are not the Mortgage Loans set forth on the
Mortgage Loan Schedule and are not the subject of this Agreement or (ii) the
rights of the Purchaser under Section 13 and Subsection 14.01 of the Purchase
Agreement.
The Assignee hereby assumes all of the Assignor's obligations from
and after the date hereof under the Mortgage Loans and the Purchase Agreement
solely insofar as such obligations relate to the Mortgage Loans. The Assignee
does not assume hereby such obligations of Assignor prior to the date hereof.
Recognition of the Company
2. From and after the date hereof (the "Securitization Closing
Date"), the Company shall and does hereby recognize that the Assignee will
transfer the Mortgage Loans and assign its rights under the Purchase Agreement
(solely to the extent set forth herein) and this Agreement to LaSalle Bank
National Association, as trustee (including its successors in interest and any
successor trustees under the Pooling Agreement (as defined below), the
"Trustee"), of the GSAMP Trust 2006-HE3 (the "Trust") created pursuant to a
Pooling and Servicing Agreement, dated as of May 1, 2006 (the "Pooling
Agreement"), among the Assignee, the Trustee, Xxxxxx Loan Servicing LP, as a
servicer of certain Mortgage Loans ("Xxxxxx"), Select Portfolio Servicing, Inc.,
as a servicer of certain Mortgage Loans ("SPS"), Avelo Mortgage, L.L.C., as a
servicer of certain Mortgage Loans (together with Xxxxxx and SPS, including
their successors in interest and any successor servicers of the Mortgage Loans
under the Pooling Agreement, the "Servicers"), Deutsche Bank National Trust
Company, as a custodian ("Deutsche Bank"), X.X. Xxxxxx Trust Company, National
Association, as a custodian ("X.X. Xxxxxx"), U.S. Bank National Association, as
a custodian (together with Deutsche Bank and X.X. Xxxxxx, including their
successors in interest and any successor custodians of the Mortgage Loans under
the Pooling Agreement, the "Custodians") and Xxxxx Fargo Bank, N.A., as master
servicer (including its successors in interest and any successor master servicer
of the Mortgage Loans under the Pooling Agreement, the "Master Servicer") and as
securities administrator (including its successors in interest and any successor
securities administrator of the Mortgage Loans under the Pooling Agreement, the
"Securities Administrator"). The Company hereby acknowledges and agrees that
from and after the date hereof (i) the Trust will be the owner of the Mortgage
Loans and the Servicers will be the servicers of the Mortgage Loans on or after
the Transfer Date pursuant to the terms set forth in the Pooling Agreement, (ii)
the Company shall look solely to the Trust (including the Trustee, the
Securities Administrator, the Master Servicer and the Servicers acting on the
Trust's behalf) for performance of any obligations of the Assignor under the
Mortgage Loans and the Purchase Agreement (solely insofar as they relate to the
Mortgage Loans), (iii) the Trust (including the Trustee, the Securities
Administrator, the Master Servicer and the Servicers acting on the Trust's
behalf) shall have all the rights and remedies available to the Assignor,
insofar as they relate to the Mortgage Loans, under the Purchase Agreement,
including, without limitation, the enforcement of the document delivery
requirements set forth in Subsection 6.03 of the Purchase Agreement, and shall
be entitled to enforce all of the obligations of the Company thereunder insofar
as they relate to the Mortgage Loans, including without limitation, the remedies
for breaches of representations and warranties set forth in Subsection 9.03 of
the Purchase Agreement, (iv) all references to the Purchaser or the Custodian
under the Purchase Agreement as they relate to the Mortgage Loans shall be
deemed to refer to the Trust (including the Trustee, the Securities
Administrator, the Master Servicer and the Servicers acting on the Trust's
behalf) and (v) the Mortgage Loans will be part of a REMIC, and the Company
shall service the Mortgage Loans and any real property acquired upon default
thereof (including, without limitation, making or permitting any modification,
waiver or amendment of any term of any Mortgage Loan) prior to the applicable
Transfer Date in accordance with the Flow Interim Servicing Agreement, dated as
of April 1, 2006 (the "Servicing Agreement"), by and between the Assignor and
Aames Funding Corporation ("AFC") but in no event in a manner that would (A)
cause the REMIC to fail to qualify as a REMIC or (B) result in the imposition of
a tax upon the REMIC (including but not limited to the tax on prohibited
transactions as defined in Section 860F(a)(2) of the Code, the tax on
contributions to a REMIC set forth in Section 860G(d) of the Code, and the tax
on "net income from foreclosure property" as set forth in Section 860G(c) of the
Code). Neither the Company or AFC, on the one hand, nor the Assignor, on the
other, shall amend or agree to amend, modify, waive, or otherwise alter any of
the terms or provisions of the Purchase Agreement or the Servicing Agreement
which amendment, modification, waiver or other alteration would in any way
affect the Mortgage Loans, the Company's performance under the Purchase
Agreement or AFC's Performance under the Servicing Agreement with respect to the
Mortgage Loans without the prior written consent of the Trustee.
Representations and Warranties of the Company
3. The Company warrants and represents to and covenants with, the
Assignor, the Assignee and the Trust as of the date hereof that:
(a) The Company is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its formation;
(b) The Company has full power and authority to execute, deliver and
perform its obligations under this Agreement, and has full power and
authority to perform its obligations under this Agreement and the Purchase
Agreement. The execution by the Company of this Agreement is in the
ordinary course of the Company's business and will not conflict with, or
result in a breach of, any of the terms, conditions or provisions of the
Company's charter or bylaws or any legal restriction, or any material
agreement or instrument to which the Company is now a party or by which it
is bound, or result in the violation of any law, rule, regulation, order,
judgment or decree to which the Company or its property is subject. The
execution, delivery and performance by the Company of this Agreement have
been duly authorized by all necessary corporate actions on the part of the
Company. This Agreement has been duly executed and delivered by the
Company, and, upon the due authorization, execution and delivery by the
Assignor and the Assignee, will constitute the valid and legally binding
obligation of the Company, enforceable against the Company in accordance
with its terms except as enforceability may be limited by bankruptcy,
reorganization, insolvency, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally, and by
general principles of equity regardless of whether enforceability is
considered in a proceeding in equity or at law;
(c) No consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required to be
obtained or made by the Company in connection with the execution, delivery
or performance by the Company of this Agreement or the consummation by it
of the transaction contemplated hereby;
(d) Except as set forth on Exhibit B hereto, there is no action,
suit, proceeding or investigation pending or threatened against the
Company, before any court, administrative agency or other tribunal, which
would draw into question the validity of this Agreement, the Purchase
Agreement or the Servicing Agreement, or which, either in any one instance
or in the aggregate, is likely to result in any material adverse change in
the ability of the Company to perform its obligations under this Agreement
or the Purchase Agreement, and the Company is solvent;
(e) No Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable, and no Mortgage Loan originated on or after October 1, 2002
through March 6, 2003 is governed by the Georgia Fair Lending Act. No
Mortgage Loan is covered by the Home Ownership and Equity Protection Act
of 1994 and no Mortgage Loan is in violation of any comparable state or
local law. The Mortgaged Property is not located in a jurisdiction where a
breach of this representation with respect to the related Mortgage Loan
may result in additional assignee liability to the Purchaser, as
determined by Purchaser in its reasonable discretion. No predatory or
deceptive lending practices, including, without limitation, the extension
of credit without regard to the ability of the Mortgagor to repay and the
extension of credit which has no apparent benefit to the Mortgagor, were
employed in the origination of the Mortgage Loan; and
(f) In connection with the origination of any Mortgage Loan, no
proceeds from any Mortgage Loan were used to finance or acquire a
single-premium credit life insurance policy. No Mortgagor was required to
purchase any single-premium credit insurance policy (e.g., life,
disability, accident, unemployment or property insurance product) or debt
cancellation agreement as a condition of obtaining the extension of
credit. No Mortgagor obtained a prepaid single-premium credit insurance
policy (e.g., life, disability, accident, unemployment or property
insurance policy) in connection with the origination of the Mortgage Loan;
no proceeds from any Mortgage Loan were used to purchase single-premium
credit insurance policies or debt cancellation agreements as part of the
origination of, or as a condition to closing, such Mortgage Loan.
4. Pursuant to Section 13 of the Purchase Agreement, the Company
hereby represents and warrants, for the benefit of the Assignor, the Assignee
and the Trust, that (x) the representations and warranties set forth in
Subsections 9.01 and 9.02 of the Purchase Agreement other than those set forth
in clauses (b), (c), (d), (f), (h), (n), (q), (hh), (ll), (mm), (qq), (rr),
(tt), (fff), (nnn), (ppp)(iii) and (ppp)(v) of Subsection 9.02 of the Purchase
Agreement are true and correct on the date hereof as if such representations and
warranties were made on the date hereof and (y) the representations and
warranties set forth in clauses (b), (c), (d), (f), (h), (n), (q), (hh), (ll),
(mm), (qq), (rr), (tt), (fff), (nnn), (ppp)(iii) and (ppp)(v) of Subsection 9.02
of the Purchase Agreement are true and correct as of April 27, 2006.
Remedies for Breach of Representations and Warranties of the Company
5. (a) The Company hereby acknowledges and agrees that the remedies
available to the Assignor, the Assignee and the Trust (including the Trustee,
the Securities Administrator, the Master Servicer and the Servicers acting on
the Trust's behalf) in connection with any breach of the representations and
warranties made by the Company set forth in Sections 3 and 4 hereof shall be as
set forth in Subsection 9.03 of the Purchase Agreement as if they were set forth
herein (including without limitation the repurchase and indemnity obligations
set forth therein, including its obligation to repurchase any Mortgage Loan in
breach of the representations in clauses (g), (uu), (ww), (xx), (yy), (iii),
(jjj), (lll), (mmm) and (ppp) of Subsection 9.02 of the Purchase Agreement
within not more than 60 days of such discovery or receipt of notice of such
breach).
(b) Notwithstanding anything to the contrary contained herein or
in the Purchase Agreement, solely for the purposes of this Agreement the second
sentence of the second full paragraph of Subsection 9.03 of the Purchase
Agreement is hereby deleted and replaced in its entirety with the following
sentence:
"Notwithstanding the above sentence, (i) within sixty (60) days of
the earlier of either discovery by, or notice to, the Seller of any breach of
the representation and warranty set forth in clause (aaa) of Subsection 9.02,
the Seller shall repurchase such Mortgage Loan at the Repurchase Price, together
with all expenses incurred by the Purchaser as a result of such repurchase and
(ii) any breach of a representation and warranty set forth in clause (g), (uu),
(ww), (xx), (yy), (iii), (jjj), (lll), (mmm) or (ppp) of Subsection 9.02 shall
automatically be deemed to materially and adversely affect the value of the
Mortgage Loan and the interest of the Purchaser therein."
(c) Notwithstanding anything to the contrary contained herein or
in the Purchase Agreement, and solely with respect to the GSAMP 2006-HE3
transaction, the fourth sentence of the second full paragraph of Subsection 9.03
of the Purchase Agreement is hereby deleted and replaced in its entirety with
the following sentence:
"However, if the breach shall involve a representation or warranty
set forth in Subsection 9.02 (other than the representations and warranties set
forth in clauses (aaa), (g), (uu), (ww), (xx), (yy), (iii), (jjj), (lll), (mmm)
and (ppp) of Subsection 9.02) and the Seller discovers or receives notice of any
such breach within 120 days of the related Closing Date, the Seller shall, at
the Purchaser's option and provided that the Seller has a Qualified Substitute
Mortgage Loan, rather than repurchase the Mortgage Loan as provided above,
remove such Mortgage Loan (a "Deleted Mortgage Loan") and substitute in its
place a Qualified Substitute Mortgage Loan or Loans, provided that any such
substitution shall be effected not later than 120 days after the related Closing
Date."
(d) Notwithstanding anything to the contrary contained herein or
in the Purchase Agreement, and solely with respect to the GSAMP 2006-HE3
transaction, the last sentence in the fourth full paragraph of Subsection 9.03
of the Purchase Agreement is deleted in its entirety and replaced with the
following:
"Accordingly, on the date of such substitution, the Seller will
remit to the Purchaser from its own funds an amount equal to the amount of such
shortfall plus one month's interest thereon at the Mortgage Interest Rate on the
Deleted Mortgage Loan."
6. The Company, the Assignor and the Assignee hereby acknowledge and
agree that the remedies available to the Assignor, the Assignee and the Trust
(including the Trustee, the Master Servicer, the Securities Administrator and
the Servicers acting on the Trust's behalf) in connection with any breach of the
representations and warranties made by the Company set forth in Sections 3 and 4
hereof shall be as set forth in Subsection 9.03 of the Purchase Agreement as if
they were set forth herein (including without limitation the repurchase and
indemnity obligations set forth therein).
7. In the event a Mortgage Loan is required to be repurchased
pursuant to Subsection 9.03 of the Purchase Agreement, the Company shall pay to
the Trust the Repurchase Price (as defined in the Purchase Agreement), and the
Company shall pay to the Assignor the amount by which the repurchase price set
forth in Section 5 of the Purchase Price and Terms Agreement, dated March 30,
2006, between the Company and the Assignor, exceeds such Repurchase Price.
8. The Company shall indemnify and hold harmless the Assignee, the
Servicers, the Master Servicer, the Securities Administrator and the Trustee and
their respective officers, directors and affiliates from and against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments and other costs and expenses arising out of or based
upon a breach of the Company's obligations under this Section 8, or the
Company's negligence, bad faith, willful misconduct or material misstatements or
omissions in connection therewith. If the indemnification provided for herein is
unavailable or insufficient to hold harmless the indemnified party, then the
Company agrees that it shall contribute to the amount paid or payable by the
Assignee, the Servicers, the Master Servicer, the Securities Administrator
and/or the Trustee (and their respective officers, directors and affiliates) as
a result of the losses, claims, damage or liabilities of the Assignee, the
Servicers, the Master Servicer, the Securities Administrator and/or the Trustee
in such proportion as is appropriate to reflect the relative fault of the
Assignee, the Servicers, the Master Servicer, the Securities Administrator or
the Trustee, as the case may be, on the one hand, and the Company on the other
in connection with a breach of the Company's obligation under this Section 8 or
the Company's negligence, bad faith, willful misconduct or material
misstatements or omissions in connection therewith.
Representations and Warranties of the Assignor
9. The Assignor warrants and represents to the Assignee and the
Trust as of the date hereof that, with respect to each Mortgage Loan:
(a) The Assignor is the sole owner of record and holder of the
Mortgage Loan and the indebtedness evidenced by each Mortgage Note. The
Mortgage Loan is not assigned or pledged, and the Assignor has good,
indefeasible and marketable title thereto, and has full right to transfer
and sell the Mortgage Loan to the Assignee free and clear of any
encumbrance, equity, participation interest, lien, pledge, charge, claim
or security interest, and has full right and authority subject to no
interest or participation of, or agreement with, any other party, to sell
and assign each Mortgage Loan pursuant to this Agreement and following the
sale of each Mortgage Loan, the Assignee will own such Mortgage Loan free
and clear of any encumbrance, equity, participation interest, lien,
pledge, charge, claim or security interest. The Assignor intends to
relinquish all rights to possess, control and monitor the Mortgage Loan;
(b) The Assignor has not waived the performance by the Mortgagor of
any action, if the Mortgagor's failure to perform such action would cause
the Mortgage Loan to be in default, nor has the Company waived any default
resulting from any action or inaction by the Mortgagor;
(c) Any and all requirements of any federal, state or local law
including, without limitation, usury, truth-in-lending, real estate
settlement procedures, consumer credit protection, equal credit
opportunity and disclosure laws applicable to the Mortgage Loans have been
complied with, including, but not limited to, all applicable
anti-predatory and abusive lending laws; and
(d) No Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable. No Mortgage Loan is covered by the Home Ownership and Equity
Protection Act of 1994 and no Mortgage Loan is in violation of any
comparable state or local law. No Mortgage Loan originated on or after
October 1, 2002 through March 6, 2003 is governed by the Georgia Fair
Lending Act.
For the purposes of this Section 9(d) the following definitions
shall apply:
Covered Loan: A Mortgage Loan categorized as Covered pursuant to
Appendix E of Standard & Poor's Glossary.
Home Loan: A Mortgage Loan categorized as Home Loan pursuant to
Appendix E of Standard & Poor's Glossary.
Standard & Poor's Glossary: Version 5.6(d) of the Standard & Poor's
LEVELS(R) Glossary, or such version as may be in effect from time to
time.
High Cost Loan: A Mortgage Loan (a) covered by the Home Ownership
and Equity Protection Act of 1994, (b) a "high cost home,"
"threshold," "covered," (excluding New Jersey "Covered Home Loans"
as that term is defined in clause (1) of the definition of that term
in the New Jersey Home Ownership Security Act of 2002), "high risk
home," "predatory" or similar loan under any other applicable state,
federal or local law (or a similarly classified loan using different
terminology under a law imposing heightened regulatory scrutiny or
additional legal liability for residential mortgage loans having
high interest rates, points and/or fees) or (c) categorized as High
Cost pursuant to Appendix E of Standard & Poor's Glossary. For
avoidance of doubt, the parties agree that this definition shall
apply to any law regardless of whether such law is presently, or in
the future becomes, the subject of judicial review or litigation.
Remedies for Breach of Representations and Warranties of the Assignor
10. The Assignor hereby acknowledges and agrees that in the event of
any breach of the representations and warranties made by the Assignor set forth
in Section 9 hereof that materially and adversely affects the value of the
Mortgage Loans or the interest of the Assignee or the Trust therein within 60
days of the earlier of either discovery by or notice to the Assignor of such
breach of a representation or warranty, it shall cure, purchase or cause the
purchase of the applicable Mortgage Loan at the Repurchase Price set forth in
the Pooling Agreement.
Enforcement of Representations and Warranties of the Company
11. The Assignor hereby agrees to use its best efforts to enforce
the remedies for a breach of the representations and warranties of the Company
set forth in Section 5 herein.
12. Any notice hereunder to the Company or the Assignor hereunder
shall be given in accordance with the Purchase Agreement. Any notice hereunder
to the Assignee or any other party in interest in the GSAMP 2006-HE3 transaction
other than the Company shall be given to the Assignor in accordance with the
Purchase Agreement.
Miscellaneous
13. This Agreement shall be construed in accordance with the laws of
the State of New York, without regard to conflicts of law principles, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws, except to the extent preempted by federal law.
14. No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced, with the prior
written consent of the Trustee.
15. This Agreement shall inure to the benefit of (i) the successors
and assigns of the parties hereto and (ii) the Trust (including the Trustee, the
Securities Administrator, the Master Servicer, and the Servicer acting on the
Trust's behalf). Any entity into which the Assignor, Assignee or Company may be
merged or consolidated shall, without the requirement for any further writing,
be deemed Assignor, Assignee or Company, respectively, hereunder.
16. Each of this Agreement, the Purchase Agreement and the Servicing
Agreement shall survive the conveyance of the Mortgage Loans and the assignment
of the Purchase Agreement and the Servicing Agreement (to the extent assigned
hereunder) by the Assignor to the Assignee and by the Assignee to the Trust and,
except as expressly set forth herein, nothing contained herein shall supersede
or amend the terms of the Purchase Agreement and the Servicing Agreement.
17. This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original and all such
counterparts shall constitute one and the same instrument.
18. In the event that any provision of this Agreement conflicts with
any provision of any of the Purchase Agreement or the Servicing Agreement with
respect to the Mortgage Loans, the terms of this Agreement shall control.
19. Capitalized terms used in this Agreement (including the exhibits
hereto) but not defined in this Agreement shall have the meanings given to such
terms in the Purchase Agreement or the Servicing Agreement, as applicable.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
GS MORTGAGE SECURITIES CORP.
By: /s/ Xxxxxxxx Xxxx
------------------------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
XXXXXXX XXXXX MORTGAGE COMPANY,
a New York limited partnership
By: XXXXXXX XXXXX REAL ESTATE FUNDING
CORP., a New York corporation, as
general partner
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
AAMES CAPITAL CORPORATION
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: EVP
EXHIBIT A TO ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
Mortgage Loan Schedule
EXHIBIT B TO ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
Material Litigation
In July 2005, Aames Investment Corporation was served with a putative
class action complaint entitled Xxxx x. Xxxxx Investment Corporation, et. al.
brought in the United States District Court, Central District of California. In
December 2005, Aames Investment Corporation was served with a putative class
action complaint entitled Xxxxxx x. Xxxxx Investment Corporation, et. al.
brought in the United States District Court, Eastern District of Wisconsin.
These complaints allege violations of the Fair Credit Reporting Act (the "FCRA")
in connection with prescreened offers of credit, which Aames Investment
Corporation made to plaintiffs. Xxxx also alleges that Aames Investment
Corporation's direct mail pieces failed to comply with the requirements of the
FCRA that the required notice be clear and conspicuous. The plaintiffs seek to
recover on behalf of themselves and others similarly situated compensatory and
punitive damages and attorneys' fees. Aames Investment filed a motion to dismiss
the clear and conspicuous claims in connection with Xxxx, which was granted in
May 2006, although the court has requested further briefing to determine whether
it will grant leave for the plaintiffs to amend. Aames Investment Corporation
also filed a motion to transfer Xxxxxx to the Central District of California
where Xxxx is pending, which was granted in March 2006, and the case was
ultimately transferred on April 13, 2006. There have been no rulings on the
merits of the plaintiffs' claims or the claims of the putative class in either
matter and no class has been certified. Aames Investment Corporation intends to
vigorously defend these matters but if a class is certified and prevails on the
merits, the potential liability could have a material adverse affect on the
business of Aames Investment Corporation, Aames Financial Corporation and Aames
Capital Corporation. The outcome of these cases and the amount of liability, if
any, cannot be determined at this time.
On April 27, 2004, Aames Financial Corporation, a wholly-owned subsidiary
of Aames Investment Corporation, and the parent of Aames Capital Corporation and
Aames Funding Corporation, received a Civil Investigative Demand ("CID") from
the Federal Trade Commission (the "FTC") that, although not alleging any
wrongdoing, sought documents and data relating to Aames Financial Corporation's
business and lending practices. The CID was issued pursuant to an April 8, 2004
resolution of the FTC authorizing non-public investigations of various unnamed
subprime lenders and loan brokers to determine whether there have been
violations of certain consumer protection laws. Aames Financial Corporation has
cooperated and intends to continue to cooperate fully with the FTC in this
investigation. Because the investigation is at an early stage, Aames Investment
Corporation cannot predict the outcome of the investigation and its effect, if
any, on Aames Investment Corporation, Aames Financial Corporation or Aames
Capital Corporation.
On September 7, 2004, Aames Financial Corporation received a Civil
Investigative Demand and Notice to Proceed from the Office of the Attorney
General of Iowa that, although not alleging any wrongdoing, sought documents and
data relating to Aames Financial Corporation's business and lending practices in
Iowa. Aames Financial Corporation has cooperated and intends to continue to
cooperate fully with the Office of the Attorney General of Iowa in this
investigation. Because the investigation is at an early stage, Aames Investment
Corporation cannot predict the outcome of the investigation and its effect, if
any on Aames Financial Corporation's business in Iowa or on Aames Investment
Corporation or Aames Capital Corporation. None of the Mortgage Loans are secured
by mortgaged properties located in Iowa.
In the ordinary course of their business, Aames Investment Corporation and
its subsidiaries are subject to various claims made against them arising from,
among other things, their loan origination and collection efforts, trade
practices and alleged violations of the various federal and state laws and
regulations applicable to their business, such as consumer protection laws and
employment laws. Aames Investment Corporation believes that the resolution of
any of these pending incidental claims is not likely to have a material adverse
effect on its consolidated financial position and results of operations.
EXHIBIT Z
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT, dated May 26,
2006 ("Agreement"), is among Xxxxxxx Xxxxx Mortgage Company ("Assignor"), GS
Mortgage Securities Corp. ("Assignee"), and Fremont Investment & Loan (the
"Company").
For and in consideration of good and valuable consideration the
receipt and sufficiency of which hereby are acknowledged, and of the mutual
covenants herein contained, the parties hereto hereby agree as follows:
Assignment, Assumption and Conveyance
1. The Assignor hereby conveys, sells, grants, transfers and assigns
to the Assignee all of the right, title and interest (other than those rights
specifically retained by the Assignor pursuant to this Agreement) of the
Assignor, as purchaser, in, to and under (a) those certain mortgage loans listed
on the schedule (the "Mortgage Loan Schedule") attached hereto as Exhibit A (the
"Mortgage Loans"), (b) solely insofar as it relates to the Mortgage Loans, that
certain Amended and Restated Flow Mortgage Loan Purchase and Warranties
Agreement, dated as of January 1, 2006 (the "Purchase Agreement"), between the
Assignor, as purchaser (in such capacity, the "Purchaser"), and the Company, as
seller, and (c) solely insofar as it relates to the Mortgage Loans, that certain
Amended and Restated Flow Interim Servicing Agreement, dated as of January 1,
2006 (the "Servicing Agreement"), by and between the Assignor and the Company.
The Assignor hereby agrees that it will (i) deliver possession of the notes
evidencing the Mortgage Loans to, or at the direction of, the Assignee or its
designee and (ii) take in a timely manner all necessary steps under all
applicable laws to convey and to perfect the conveyance of the Mortgage Loans as
required under the Pooling Agreement (as defined below).
The Assignor specifically reserves and does not assign to the
Assignee hereunder (i) any and all right, title and interest in, to and under
and any obligations of the Assignor with respect to any mortgage loans subject
to the Purchase Agreement or the Servicing Agreement that are not the Mortgage
Loans set forth on the Mortgage Loan Schedule and are not the subject of this
Agreement or (ii) the rights of the Purchaser under Section 13 and Subsection
14.01 of the Purchase Agreement.
The Assignee hereby assumes all of the Assignor's obligations from
and after the date hereof under the Mortgage Loans and the Purchase Agreement
and the Servicing Agreement solely insofar as such obligations relate to the
Mortgage Loans. The Assignee does not assume hereby such obligations of Assignor
prior to the date hereof.
Recognition of the Company
2. From and after the date hereof (the "Securitization Closing
Date"), the Company shall and does hereby recognize that the Assignee will
transfer the Mortgage Loans and assign its rights under the Purchase Agreement
and the Servicing Agreement (in each case, solely to the extent set forth
herein) and this Agreement to LaSalle Bank National Association, as trustee
(including its successors in interest and any successor trustees under the
Pooling Agreement (as defined below), the "Trustee"), of the GSAMP Trust
2006-HE3 (the "Trust") created pursuant to a Pooling and Servicing Agreement,
dated as of May 1, 2006 (the "Pooling Agreement"), among the Assignee, the
Trustee, Xxxxxx Loan Servicing LP, as a servicer of certain Mortgage Loans
("Xxxxxx"), Select Portfolio Servicing, Inc., as a servicer of certain Mortgage
Loans ("SPS"), Avelo Mortgage, L.L.C., as a servicer of certain Mortgage Loans
(together with Xxxxxx and SPS, including their successors in interest and any
successor servicers of the Mortgage Loans under the Pooling Agreement, the
"Servicers"), Deutsche Bank National Trust Company, as a custodian ("Deutsche
Bank"), X.X. Xxxxxx Trust Company, National Association, as a custodian ("X.X.
Xxxxxx"), U.S. Bank National Association, as a custodian (together with Deutsche
Bank and X.X. Xxxxxx, including their successors in interest and any successor
custodians of the Mortgage Loans under the Pooling Agreement, the "Custodians")
and Xxxxx Fargo Bank, N.A., as master servicer (including its successors in
interest and any successor master servicer of the Mortgage Loans under the
Pooling Agreement, the "Master Servicer") and as securities administrator
(including its successors in interest and any successor securities administrator
of the Mortgage Loans under the Pooling Agreement, the "Securities
Administrator"). The Company hereby acknowledges and agrees that from and after
the date hereof (i) the Trust will be the owner of the Mortgage Loans and SPS
will be the servicer of the Mortgage Loans on or after the Transfer Date
pursuant to the terms set forth in the Servicing Agreement, (ii) the Company
shall look solely to the Trust (including the Trustee, the Securities
Administrator, the Master Servicer and SPS acting on the Trust's behalf) for
performance of any obligations of the Assignor under the Mortgage Loans and the
Purchase Agreement and the Servicing Agreement (solely insofar as they relate to
the Mortgage Loans), (iii) the Trust (including the Trustee, the Securities
Administrator, the Master Servicer and SPS acting on the Trust's behalf) shall
have all the rights and remedies available to the Assignor, insofar as they
relate to the Mortgage Loans, under the Purchase Agreement and the Servicing
Agreement, including, without limitation, the enforcement of the document
delivery requirements set forth in Subsection 6.03 of the Purchase Agreement,
and shall be entitled to enforce all of the obligations of the Company
thereunder insofar as they relate to the Mortgage Loans, including without
limitation, the remedies for breaches of representations and warranties set
forth in Subsection 9.03 of the Purchase Agreement, (iv) all references to the
Purchaser under the Purchase Agreement and the Servicing Agreement insofar as
they relate to the Mortgage Loans shall be deemed to refer to the Trust
(including the Trustee, the Securities Administrator, the Master Servicer and
SPS acting on the Trust's behalf) and (v) the Mortgage Loans will be part of a
REMIC, and the Company shall service the Mortgage Loans and any real property
acquired upon default thereof (including, without limitation, making or
permitting any modification, waiver or amendment of any term of any Mortgage
Loan) prior to the applicable Transfer Date in accordance with the Servicing
Agreement, by and between the Assignor and the Company but in no event in a
manner that would (A) cause the REMIC to fail to qualify as a REMIC or (B)
result in the imposition of a tax upon the REMIC (including but not limited to
the tax on prohibited transactions as defined in Section 860F(a)(2) of the Code,
the tax on contributions to a REMIC set forth in Section 860G(d) of the Code,
and the tax on "net income from foreclosure property" as set forth in Section
860G(c) of the Code). Neither the Company nor the Assignor shall amend or agree
to amend, modify, waive, or otherwise alter any of the terms or provisions of
the Purchase Agreement or the Servicing Agreement which amendment, modification,
waiver or other alteration would in any way affect the Mortgage Loans or the
Company's performance under the Purchase Agreement or the Servicing Agreement
with respect to the Mortgage Loans without the prior written consent of the
Assignee.
Representations and Warranties of the Company
3. The Company warrants and represents to and covenants with, the
Assignor, the Assignee and the Trust as of the date hereof that:
(a) The Company is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its formation;
(b) The Company has full power and authority to execute, deliver and
perform its obligations under this Agreement, and has full power and authority
to perform its obligations under this Agreement, the Purchase Agreement and the
Servicing Agreement. The execution by the Company of this Agreement is in the
ordinary course of the Company's business and will not conflict with, or result
in a breach of, any of the terms, conditions or provisions of the Company's
charter or bylaws or any legal restriction, or any material agreement or
instrument to which the Company is now a party or by which it is bound, or
result in the violation of any law, rule, regulation, order, judgment or decree
to which the Company or its property is subject. The execution, delivery and
performance by the Company of this Agreement have been duly authorized by all
necessary corporate actions on the part of the Company. This Agreement has been
duly executed and delivered by the Company, and, upon the due authorization,
execution and delivery by the Assignor and the Assignee, will constitute the
valid and legally binding obligation of the Company, enforceable against the
Company in accordance with its terms except as enforceability may be limited by
bankruptcy, reorganization, insolvency, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally, and by general
principles of equity regardless of whether enforceability is considered in a
proceeding in equity or at law;
(c) The Company shall establish a Custodial Account and an Escrow
Account under the Servicing Agreement in favor of the Trust with respect to the
Mortgage Loans separate from the Custodial Account and Escrow Account previously
established under the Servicing Agreement in favor of the Assignor;
(d) No consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required to be obtained
or made by the Company in connection with the execution, delivery or performance
by the Company of this Agreement or the consummation by it of the transaction
contemplated hereby;
(e) There is no action, suit, proceeding or investigation pending or
threatened against the Company, before any court, administrative agency or other
tribunal, which would draw into question the validity of this Agreement, the
Purchase Agreement or the Servicing Agreement, or which, either in any one
instance or in the aggregate, is likely to result in any material adverse change
in the ability of the Company to perform its obligations under this Agreement or
the Purchase Agreement or the Servicing Agreement, and the Company is solvent;
(f) No Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable, and no Mortgage Loan originated on or after October 1, 2002 through
March 6, 2003 is governed by the Georgia Fair Lending Act. No Mortgage Loan is
covered by the Home Ownership and Equity Protection Act of 1994 and no Mortgage
Loan is in violation of any comparable state or local law. The Mortgaged
Property is not located in a jurisdiction where a breach of this representation
with respect to the related Mortgage Loan may result in additional assignee
liability to the Purchaser, as determined by Purchaser in its reasonable
discretion. No predatory or deceptive lending practices, including, without
limitation, the extension of credit without regard to the ability of the
Mortgagor to repay and the extension of credit which has no apparent benefit to
the Mortgagor, were employed in the origination of the Mortgage Loan; and
(g) In connection with the origination of any Mortgage Loan, no
proceeds from any Mortgage Loan were used to finance or acquire a single-premium
credit life insurance policy. No Mortgagor was required to purchase any single
premium credit insurance policy (e.g., life, mortgage, disability, accident,
unemployment, or health insurance product) or debt cancellation agreement as a
condition of obtaining the extension of credit. No Mortgagor obtained a prepaid
single premium credit insurance policy (e.g., life, mortgage, disability,
accident, unemployment, mortgage, or health insurance) in connection with the
origination of the Mortgage Loan; no proceeds from any Mortgage Loan were used
to purchase single premium credit insurance policies or debt cancellation
agreements as part of the origination of, or as a condition to closing, such
Mortgage Loan.
4. Pursuant to Section 13 of the Purchase Agreement, the Company
hereby represents and warrants, for the benefit of the Assignor, the Assignee
and the Trust, that, except as set forth on Exhibit C hereto, the
representations and warranties set forth in Subsections 9.01 and 9.02 of the
Purchase Agreement are true and correct (with respect to the representations and
warranties set forth in Section 9.02 (gg) and (jj), to the Company's knowledge)
on the date hereof as if such representations and warranties were made on the
date hereof.
Remedies for Breach of Representations and Warranties of the Company
5. (a) The Company hereby acknowledges and agrees that the remedies
available to the Assignor, the Assignee and the Trust (including the Trustee,
the Securities Administrator, the Master Servicer and SPS acting on the Trust's
behalf) in connection with any breach of the representations and warranties made
by the Company set forth in Sections 3 and 4 hereof shall be as set forth in
Subsection 9.03 of the Purchase Agreement as if they were set forth herein
(including without limitation the repurchase and indemnity obligations set forth
therein, including its obligation to repurchase any Mortgage Loan in breach of
the representations in clauses (g), (i), (ss), (tt), (uu), (bbb), (ccc), (ddd),
(eee), (mmm), (ooo) and (qqq) of Subsection 9.02 of the Purchase Agreement
within not more than 60 days of such discovery or receipt of notice of such
breach).
(b) Notwithstanding anything to the contrary contained herein or in
the Purchase Agreement, the first sentence of the third full paragraph of
Subsection 9.03 of the Purchase Agreement is hereby deleted and replaced in its
entirety with the following sentence:
"However, if the breach shall involve a representation or warranty
set forth in Subsection 9.02 (other than the representations and warranties set
forth in clauses (g), (i), (ss), (tt), (uu), (bbb), (ccc), (ddd), (eee), (mmm),
(ooo) and (qqq) of Subsection 9.02) and the Seller discovers or receives notice
of any such breach within 120 days of the related Closing Date, the Seller
shall, at the Purchaser's option and provided that the Seller has a Qualified
Substitute Mortgage Loan, rather than repurchase the Mortgage Loan as provided
above, remove such Mortgage Loan (a "Deleted Mortgage Loan") and substitute in
its place a Qualified Substitute Mortgage Loan or Loans, provided that any such
substitution shall be effected not later than 120 days after the related Closing
Date."
(c) Notwithstanding anything to the contrary contained herein or in
the Purchase Agreement, the following language should be added as the last
sentence in the fourth full paragraph of Subsection 9.03 of the Purchase
Agreement:
"Accordingly, on the date of such substitution, the Seller will
remit to the Purchaser from its own funds an amount equal to the amount of such
shortfall plus one month's interest thereon at the Mortgage Interest Rate on the
Deleted Mortgage Loan."
6. The Company hereby acknowledges and agrees that the remedies
available to the Assignor, the Assignee and the Trust (including the Trustee,
the Master Servicer, the Securities Administrator and SPS acting on the Trust's
behalf) in connection with any breach of the representations and warranties made
by the Company set forth in Sections 3 and 4 hereof shall be as set forth in
Subsection 9.03 of the Purchase Agreement as if they were set forth herein
(including without limitation the repurchase and indemnity obligations set forth
therein).
7. In the event a Mortgage Loan is required to be repurchased
pursuant to Subsection 9.04 of the Purchase Agreement, the Company shall pay to
the Trust the Repurchase Price (as defined in the Purchase Agreement), and the
Company shall pay to the Assignor the amount by which the repurchase price set
forth in Section P of the Purchase Price and Terms Agreement, dated March 23,
2006, between the Company and the Assignor, exceeds such Repurchase Price.
8. Pursuant to Section 13 of the Purchase Agreement and Section 4.04
of the Servicing Agreement, the Company agrees to deliver a Xxxxxxxx-Xxxxx
certification in the form attached hereto as Exhibit B for the benefit of the
Assignee, SPS, the Master Servicer, the Securities Administrator and the Trustee
and their respective officers, directors and affiliates. Such certification
shall be delivered by March 1, 2007 to the Assignee, SPS, the Master Servicer,
the Securities Administrator and the Trustee. The Company shall indemnify and
hold harmless the Assignee, the Servicers, the Master Servicer, the Securities
Administrator and the Trustee and their respective officers, directors and
affiliates from and against any losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments and other costs
and expenses arising out of or based upon a breach of the Company's obligations
under this Section 8, or the Company's negligence, bad faith, willful misconduct
or material misstatements or omissions in connection therewith. If the
indemnification provided for herein is unavailable or insufficient to hold
harmless the indemnified party, then the Company agrees that it shall contribute
to the amount paid or payable by the Assignee, SPS, the Master Servicer, the
Securities Administrator and/or the Trustee (and their respective officers,
directors and affiliates) as a result of the losses, claims, damage or
liabilities of the Assignee, SPS, the Master Servicer, the Securities
Administrator and/or the Trustee in such proportion as is appropriate to reflect
the relative fault of the Assignee, SPS, the Master Servicer, the Securities
Administrator or the Trustee, as the case may be, on the one hand, and the
Company on the other in connection with a breach of the Company's obligation
under this Section 8 or the Company's negligence, bad faith, willful misconduct
or material misstatements or omissions in connection therewith.
Representations and Warranties of the Assignor
9. The Assignor warrants and represents to the Assignee and the
Trust as of the date hereof that, with respect to each Mortgage Loan:
(a) The Assignor is the sole owner of record and holder of the
Mortgage Loan and the indebtedness evidenced by each Mortgage Note. The Mortgage
Loan is not assigned or pledged, and the Assignor has good, indefeasible and
marketable title thereto, and has full right to transfer and sell the Mortgage
Loan to the Assignee free and clear of any encumbrance, equity, participation
interest, lien, pledge, charge, claim or security interest, and has full right
and authority subject to no interest or participation of, or agreement with, any
other party, to sell and assign each Mortgage Loan pursuant to this Agreement
and following the sale of each Mortgage Loan, the Assignee will own such
Mortgage Loan free and clear of any encumbrance, equity, participation interest,
lien, pledge, charge, claim or security interest. The Assignor intends to
relinquish all rights to possess, control and monitor the Mortgage Loan;
(b) The Assignor has not waived the performance by the Mortgagor of
any action, if the Mortgagor's failure to perform such action would cause the
Mortgage Loan to be in default, nor has the Company waived any default resulting
from any action or inaction by the Mortgagor;
(c) Any and all requirements of any federal, state or local law
including, without limitation, usury, truth-in-lending, real estate settlement
procedures, consumer credit protection, equal credit opportunity and disclosure
laws applicable to the Mortgage Loans have been complied with, including, but
not limited to, all applicable anti-predatory and abusive lending laws; and
(d) No Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable. No Mortgage Loan is covered by the Home Ownership and Equity
Protection Act of 1994 and no Mortgage Loan is in violation of any comparable
state or local law. No Mortgage Loan originated on or after October 1, 2002
through March 6, 2003 is governed by the Georgia Fair Lending Act.
For the purposes of this Section 9(d) the following definitions shall apply:
Covered Loan: A Mortgage Loan categorized as Covered pursuant to
Appendix E of Standard & Poor's Glossary.
Home Loan: A Mortgage Loan categorized as Home Loan pursuant to
Appendix E of Standard & Poor's Glossary.
Standard & Poor's Glossary: Version 5.6(d) of the Standard & Poor's
LEVELS(R) Glossary, or such version as may be in effect from time to
time.
High Cost Loan: A Mortgage Loan (a) covered by the Home Ownership
and Equity Protection Act of 1994, (b) a "high cost home,"
"threshold," "covered," (excluding New Jersey "Covered Home Loans"
as that term is defined in clause (1) of the definition of that term
in the New Jersey Home Ownership Security Act of 2002), "high risk
home," "predatory" or similar loan under any other applicable state,
federal or local law (or a similarly classified loan using different
terminology under a law imposing heightened regulatory scrutiny or
additional legal liability for residential mortgage loans having
high interest rates, points and/or fees) or (c) categorized as High
Cost pursuant to Appendix E of Standard & Poor's Glossary. For
avoidance of doubt, the parties agree that this definition shall
apply to any law regardless of whether such law is presently, or in
the future becomes, the subject of judicial review or litigation.
Remedies for Breach of Representations and Warranties of the Assignor
10. The Assignor hereby acknowledges and agrees that in the event of
any breach of the representations and warranties made by the Assignor set forth
in Section 9 hereof that materially and adversely affects the value of the
Mortgage Loans or the interest of the Assignee or the Trust therein within 60
days of the earlier of either discovery by or notice to the Assignor of such
breach of a representation or warranty, it shall cure, purchase or cause the
purchase of the applicable Mortgage Loan at the Repurchase Price set forth in
the Pooling Agreement.
Enforcement of Representations and Warranties of the Company
11. The Assignor hereby agrees to use its best efforts to enforce
the remedies for a breach of the representations and warranties of the Company
set forth in Section 5 herein.
Amendment
12. Notwithstanding anything to the contrary in the Servicing
Agreement, and solely with respect to the GSAMP 2006-HE3 transaction, the
definition of "Remittance Date" in Section 1.01 of the Servicing Agreement is
hereby deleted in its entirety and replaced with the following:
"Remittance Date: The 12th Business Day of each month."
13. Each of the Assignor, the Assignee and the Company acknowledge
and agree that the Company will not be responsible for paying Compensating
Interest (as defined in the Pooling Agreement) with respect to any prepayment
interest shortfalls on the Mortgage Loans.
Regulation AB Provisions
14. To the extent a Form 10-D, Form 10-K, Form 8-K filing or any
other applicable filing is being prepared by the Securities Administrator, the
Company, as long as it is interim servicing the Mortgage Loans, shall cooperate
with the Securities Administrator in preparing the information necessary to
effectuate any such filings and shall indemnify the Securities Administrator as
a "party participating in a securitization transaction" pursuant to Section
12.07 of the Servicing Agreement.
15. Notwithstanding anything to the contrary in the Servicing
Agreement, the Company, as long as it is interim servicing the Mortgage Loans,
shall be responsible for providing to the Securities Administrator for inclusion
in the applicable Form 10-D any information regarding material breaches of
Mortgage Loan representations and warranties or material breaches of any
covenants under the Servicing Agreement.
16. Notwithstanding anything to the contrary in the Servicing
Agreement, the Company, as long as it is interim servicing the Mortgage Loans,
shall cooperate in good faith with the Securities Administrator to reconcile any
discrepancies in the statements to certificateholders prepared by the Securities
Administrator pursuant to the Pooling Agreement.
17. In the event that prior to the filing date of the Form 10-K in
March of each year, the Company, as long as it is interim servicing the Mortgage
Loans, has actual knowledge of information material to the Sarbanes
Certification, the Company shall promptly notify the Assignee, the Securities
Administrator or any other party signing such certifications.
18. To the extent the Company, as long as it is interim servicing
the Mortgage Loans, prepares any information for inclusion on a Form 10-D, Form
10-K, Form 8-K filing or any other applicable filing it must provide such
information to the Securities Administrator in XXXXX-compatible form at the
following e-mail address: XXXxx.Xxxxxxxxxxxxx@xx.xxx.
17. In the event that the Company, as long as it is interim
servicing the Mortgage Loans, has knowledge that the GSAMP Trust 2006-HE3 (the
"Trust") has entered into bankruptcy or receivership (as required under Item
1.03 on Form 8-K) or there has been a change in servicer (as required under Item
6.02 on Form 8-K) it will notify each of the Securities Administrators and the
Assignee of such information within a reasonable amount of time after learning
about such information.
Miscellaneous
18. This Agreement shall be construed in accordance with the laws of
the State of New York, without regard to conflicts of law principles, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
19. No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced, with the prior
written consent of the Trustee.
20. This Agreement shall inure to the benefit of (i) the successors
and assigns of the parties hereto and (ii) the Trust (including the Trustee, the
Securities Administrator, the Master Servicer, and SPS acting on the Trust's
behalf). Any entity into which the Assignor, Assignee or Company may be merged
or consolidated shall, without the requirement for any further writing, be
deemed Assignor, Assignee or Company, respectively, hereunder.
21. Each of this Agreement, the Purchase Agreement and the Servicing
Agreement shall survive the conveyance of the Mortgage Loans and the assignment
of the Purchase Agreement and the Servicing Agreement (to the extent assigned
hereunder) by the Assignor to the Assignee and by the Assignee to the Trust and,
except as expressly set forth herein, nothing contained herein shall supersede
or amend the terms of the Purchase Agreement and the Servicing Agreement.
22. This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original and all such
counterparts shall constitute one and the same instrument.
23. In the event that any provision of this Agreement conflicts with
any provision of any of the Purchase Agreement or the Servicing Agreement with
respect to the Mortgage Loans, the terms of this Agreement shall control.
24. Capitalized terms used in this Agreement (including the exhibits
hereto) but not defined in this Agreement shall have the meanings given to such
terms in the Purchase Agreement or the Servicing Agreement, as applicable.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
GS MORTGAGE SECURITIES CORP.
By: /s/ Xxxxxxxx Xxxx
------------------------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
XXXXXXX XXXXX MORTGAGE COMPANY,
a New York limited partnership
By: XXXXXXX XXXXX REAL ESTATE FUNDING
CORP., a New York corporation, as
general partner
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
FREMONT INVESTMENT & LOAN
By: /s/ Xxxx Xxxxxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: SVP
EXHIBIT A TO ASSIGNMENT AND RECOGNITION AGREEMENT
Mortgage Loan Schedule
EXHIBIT B
FORM OF COMPANY CERTIFICATION TO BE PROVIDED TO ASSIGNEE, THE SERVICER AND
TRUSTEE
I, [identify the certifying individual], certify to GS Mortgage Securities Corp.
(the "Assignee"), Xxxxxx Loan Servicing LP ("Xxxxxx"), Select Portfolio
Servicing, Inc. ("SPS"), Avelo Mortgage, L.L.C. (together with Xxxxxx and SPS,
the "Servicers"), Xxxxx Fargo Bank, N.A. (the "Securities Administrator" and the
"Master Servicer") and LaSalle Bank National Association (the "Trustee"), and
their respective officers, directors and affiliates, and with the knowledge and
intent that they will rely upon this certification, that:
1. The servicing information required to be provided to the Servicers, the
Master Servicer, the Securities Administrator or the Trustee by Fremont
Investment & Loan (the "Company") under the Amended and Restated Flow Interim
Servicing Agreement, dated as of January 1, 2006 (the "Servicing Agreement"), by
and between Xxxxxxx Xxxxx Mortgage Company (the "Assignor") and the Company, for
the period from [ ] [ ] to the Transfer Date (as defined in the Servicing
Agreement) has been so provided;
2. I am responsible for reviewing the activities performed by the Company under
the Servicing Agreement and based upon my knowledge and the annual compliance
review required under the Servicing Agreement, and except as disclosed in the
annual compliance statement required to be delivered to the Assignee, SPS, the
Master Servicer, the Securities Administrator and Trustee in accordance with the
terms of the Servicing Agreement (which has been so delivered to the Servicer or
the Trustee), the Company has fulfilled its obligations under the Servicing
Agreement; and
3. All significant deficiencies relating to the Company's compliance with the
minimum servicing standards for purposes of the report provided by an
independent public accountant, after conducting a review in compliance with the
Uniform Single Attestation Program for Mortgage Bankers or similar procedure, as
set forth in the Servicing Agreement, have been disclosed to such accountant and
are included in such report.
FREMONT INVESTMENT & LOAN
Date: _________________________
_______________________________
[Signature]
[Title]
EXHIBIT C
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
Investor Next
Code Pool Loan Number ARM Name Note Date Maturity Loan Balance
------------------------------------------------------------------------------------------------------------------------------------
11 32 1000308459 Y FOSU YAA M 6/1/2006 3/1/2036 $299,600.14 Risk Management
11 32 1000312283 Y XXXXX XXXX 6/1/2006 3/1/2036 $116,000.00 Delinquent Insurance
11 32 3000012754 Y XXXXX XXXXXXX 6/1/2006 3/1/2046 $606,981.04 Delinquent Insurance
11 32 7000185039 Y XXXXX XXXXX X 6/1/2006 3/1/2036 $239,699.08 Delinquent Insurance
11 32 7000188606 Y XXXXX XXXXXXXX S 6/1/2006 3/1/2036 $83,097.21 Delinquent Taxes
================================================================================
AMENDED AND RESTATED
FLOW MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT
-----------------------
XXXXXXX XXXXX MORTGAGE COMPANY,
Purchaser
and
FREMONT INVESTMENT & LOAN
Seller
Dated as of January 1, 2006
Conventional Fixed and Adjustable Rate Residential Mortgage Loans
================================================================================
TABLE OF CONTENTS
SECTION 1. DEFINITIONS..................................................
SECTION 2. AGREEMENT TO PURCHASE........................................
SECTION 3. MORTGAGE SCHEDULES...........................................
SECTION 4. PURCHASE PRICE...............................................
SECTION 5. EXAMINATION OF MORTGAGE FILES................................
SECTION 6. CONVEYANCE FROM SELLER TO PURCHASER..........................
Subsection 6.01 Conveyance of Mortgage Loans...........................
Subsection 6.02 Books and Records......................................
Subsection 6.03 Delivery of Mortgage Loan Documents....................
Subsection 6.04 Quality Control Procedures.............................
SECTION 7. SERVICING OF THE MORTGAGE LOANS..............................
SECTION 8. TRANSFER OF SERVICING........................................
SECTION 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLER;
REMEDIES FOR BREACH..........................................
Subsection 9.01 Representations and Warranties Regarding the Seller....
Subsection 9.02 Representations and Warranties Regarding Individual
Mortgage Loans.........................................
Subsection 9.03 Remedies for Breach of Representations and Warranties..
Subsection 9.04 Repurchase of Mortgage Loans With First Payment
Defaults...............................................
Subsection 9.05 Purchaser's Right to Review............................
SECTION 10. CLOSING......................................................
SECTION 11. CLOSING DOCUMENTS............................................
SECTION 12. COSTS........................................................
SECTION 13. COOPERATION OF SELLER WITH A RECONSTITUTION..................
SECTION 14. THE SELLER...................................................
Subsection 14.01 Additional Indemnification by the Seller; Third Party
Claims.................................................
Subsection 14.02 Purchaser Indemnification..............................
Subsection 14.03 Merger or Consolidation of the Seller..................
SECTION 15. FINANCIAL STATEMENTS.........................................
SECTION 16. NOTICES......................................................
SECTION 17. SEVERABILITY CLAUSE..........................................
SECTION 18. COUNTERPARTS.................................................
SECTION 19. GOVERNING LAW................................................
SECTION 20. INTENTION OF THE PARTIES.....................................
SECTION 21. SUCCESSORS AND ASSIGNS; ASSIGNMENT OF PURCHASE AGREEMENT.....
SECTION 22. WAIVERS......................................................
SECTION 23. EXHIBITS.....................................................
SECTION 24. GENERAL INTERPRETIVE PRINCIPLES..............................
SECTION 25. REPRODUCTION OF DOCUMENTS....................................
SECTION 26. FURTHER AGREEMENTS...........................................
SECTION 27. RECORDATION OF ASSIGNMENTS OF MORTGAGE.......................
SECTION 28. NO SOLICITATION..............................................
SECTION 29. WAIVER OF TRIAL BY JURY......................................
SECTION 30. SUBMISSION TO JURISDICTION; WAIVERS..........................
SECTION 31. CONFIDENTIAL INFORMATION.....................................
SECTION 32. COMPLIANCE WITH REGULATION AB................................
Subsection 32.01 Intent of the Parties; Reasonableness..................
Subsection 32.02 Additional Representations and Warranties of the Seller
Subsection 32.03 Information to Be Provided by the Seller...............
Subsection 32.04 Indemnification; Remedies..............................
EXHIBITS
EXHIBIT A CONTENTS OF EACH MORTGAGE FILE
EXHIBIT B CONTENTS OF EACH CREDIT FILE
EXHIBIT C MORTGAGE LOAN SCHEDULE FIELDS
EXHIBIT D RESERVED
EXHIBIT E FORM OF SELLER'S OFFICER'S CERTIFICATE
EXHIBIT F FORM OF OPINION OF COUNSEL TO THE SELLER
EXHIBIT G FORM OF SECURITY RELEASE CERTIFICATION
EXHIBIT H FORM OF SECURITY RELEASE CERTIFICATION
EXHIBIT I UNDERWRITING GUIDELINES
EXHIBIT J RESERVED
EXHIBIT K SERVICER ACKNOWLEDGMENT
EXHIBIT L NEW JERSEY MORTGAGE LOAN STIPULATIONS
EXHIBIT M XXXXXX XXX ANTI-PREDATORY LENDING REPRESENTATIONS
FLOW MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT
This AMENDED AND RESTATED FLOW MORTGAGE LOAN PURCHASE AND WARRANTIES
AGREEMENT, dated as of January 1, 2006 ("Agreement"), by and between Xxxxxxx
Xxxxx Mortgage Company, a New York limited partnership, having an office at 00
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Purchaser"), and Fremont Investment
& Loan having an office at 0000 Xxxx Xxxxxxxx Xxxxxxx, Xxxx XX 00000 (the
"Seller").
W I T N E S S E T H:
WHEREAS, the Purchaser and Seller are parties to that certain Flow
Mortgage Loan and Purchase Warranties Agreement, dated as of October 1, 2004, as
amended (the "Original Purchase Agreement"), pursuant to which the Seller
desires to sell to the Purchaser, and, from time to time, the Purchaser desires
to purchase from the Seller, certain fixed and adjustable rate first and second
lien residential mortgage loans (the "Mortgage Loans") on a servicing released
basis as described herein, and which shall be delivered as a pool of whole loans
on the dates as provided herein (each, a "Closing Date");
WHEREAS, at the present time, the Purchaser and the Seller desire to
amend the Original Purchase Agreement to make certain modifications as set forth
herein with respect to all Mortgage Loans acquired pursuant to this Agreement or
the Original Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and mutual
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Purchaser and the
Seller agree as follows:
SECTION 1. Definitions.
For purposes of this Agreement the following capitalized terms shall
have the respective meanings set forth below.
Accepted Servicing Practices: With respect to any Mortgage Loan
those mortgage servicing practices of prudent mortgage lending institutions
which service mortgage loans of the same type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located.
Act: The National Housing Act, as amended from time to time.
Adjustable Rate Mortgage Loan: A Mortgage Loan purchased pursuant to
this Agreement the Mortgage Interest Rate of which is adjusted from time to time
in accordance with the terms of the related Mortgage Note.
Affiliate: With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Agreement: This Amended and Restated Flow Mortgage Loan Purchase and
Warranties Agreement and all amendments hereof and supplements hereto.
ALTA: The American Land Title Association, or any successor thereto.
Appraised Value: the value of the related Mortgaged Property based
upon the appraisal made for the originator at the time of origination of the
Mortgage Loan or the sales price of the Mortgaged Property at such time of
origination, whichever is less; provided, however, that in the case of a
refinanced Mortgage Loan, such value is based solely upon the appraisal made at
the time of origination of such refinanced Mortgage Loan.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
the sale of the Mortgage to the Purchaser.
Business Day: Any day other than (i) a Saturday or Sunday or (ii) a
day on which banking and savings and loan institutions in (a) the State of New
York, (b) the state in which the Servicer's servicing operations are located or
(c) the State in which the Custodian's operations are located, are authorized or
obligated by law or executive order to be closed.
Closing Date: The date or dates set forth on the related Purchase
Price and Terms Agreement on which the Purchaser from time to time shall
purchase and the Seller from time to time shall sell, the Mortgage Loans listed
on the related Mortgage Loan Schedule.
Code: Internal Revenue Code of 1986, as amended.
Combined Loan-to-Value Ratio or CLTV: With respect to any Mortgage
Loan, the sum of the original principal balance of such Mortgage Loan and the
outstanding principal balance of any related senior or subordinate lien as of
the date of origination of the Mortgage Loan, divided by the lesser of the
Appraised Value and the purchase price of the Mortgaged Property as of the
origination date.
Commission: The United States Securities and Exchange Commission.
Condemnation Proceeds: All awards or settlements in respect of a
Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan Documents.
Convertible Mortgage Loan: Any individual Adjustable Rate Mortgage
Loan purchased pursuant to this Agreement which contains a provision whereby the
Mortgagor is permitted to convert the Adjustable Rate Mortgage Loan to a Fixed
Rate Mortgage Loan in accordance with the terms of the related Mortgage Note.
Covered Loan: A Mortgage Loan categorized as Covered pursuant to
Appendix E of Standard & Poor's Glossary.
Credit File: The items pertaining to a particular Mortgage Loan
referred to in Exhibit B annexed hereto, and any additional documents required
to be added to the Credit File pursuant to this Agreement.
Custodial Account: The separate account or accounts created and
maintained pursuant to the Interim Servicing Agreement (with respect to each
Mortgage Loan, for an interim period, as specified therein).
Custodial Agreement: That certain Custodial Agreement, by and
between the Purchaser and the Custodian, dated as of the date hereof, governing
the retention of the originals of each Mortgage Note, Mortgage, Assignment of
Mortgage (if required) and other Mortgage Loan Documents.
Custodian: The Custodian designated by the Purchaser or any
successor thereto under the Custodial Agreement.
Cut-off Date: With respect to each Mortgage Loan in a Mortgage Loan
Package, the date set forth on the related Purchase Price and Terms Agreement.
Deemed Material Breach Representation: Each representation and
warranty identified as such in Subsection 9.02.
Deleted Mortgage Loan: A Mortgage Loan that is repurchased or
replaced or to be replaced with a Qualified Substitute Mortgage Loan by the
Seller in accordance with the terms of this Agreement.
Depositor: The depositor, as such term is defined in Regulation AB,
with respect to any Securitization Transaction.
Determination Date: The date specified in the Interim Servicing
Agreement (with respect to each Mortgage Loan, for an interim period, as
specified therein).
Due Date: The day of the month on which the Monthly Payment is due
on a Mortgage Loan, exclusive of any days of grace.
Escrow Account: The separate account or accounts created and
maintained pursuant to the Interim Servicing Agreement (with respect to each
Mortgage Loan, for an interim period, as specified therein).
Escrow Payments: With respect to any Mortgage Loan with an Escrow
Account, the amounts constituting ground rents, taxes, assessments, water rates,
sewer rents, municipal charges, mortgage insurance premiums, fire and hazard
insurance premiums, condominium charges, and any other payments required to be
escrowed by the Mortgagor with the mortgagee pursuant to the Mortgage or any
other document.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Xxxxxx Xxx: The Federal National Mortgage Association, or any
successor thereto.
First Lien Mortgage Loans: A Mortgage Loan secured by a first lien
on the related Mortgaged Property.
Fixed Rate Mortgage Loan: A fixed rate mortgage loan purchased
pursuant to this Agreement.
Freddie Mac: The Federal Home Loan Mortgage Corporation, or any
successor thereto.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan,
the fixed percentage amount set forth in the related Mortgage Note which amount
is added to the Index in accordance with the terms of the related Mortgage Note
to determine on each Interest Rate Adjustment Date the Mortgage Interest Rate
for such Mortgage Loan.
High Cost Loan: A Mortgage Loan classified as (a) a "high cost" loan
under the Home Ownership and Equity Protection Act of 1994, (b) a "high cost,"
"threshold," "covered" (other than New Jersey "covered" loans), "predatory" or
similar loan under any other applicable state, federal or local law (or a
similarly classified loan using different terminology under a law imposing
heightened regulatory scrutiny or additional legal liability for residential
mortgage loans having high interest rates, points and/or fees) or (c)
categorized as High Cost pursuant to Appendix E of Standard & Poor's Glossary.
For avoidance of doubt, the parties agree that this definition shall apply to
any law regardless of whether such law is presently, or in the future becomes,
the subject of judicial review or litigation.
Home Loan: A Mortgage Loan categorized as Home Loan pursuant to
Appendix E of Standard & Poor's Glossary.
Index: With respect to each Adjustable Rate Mortgage Loan, a rate
per annum set forth on the related Mortgage Loan Schedule.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property.
Insured Depository Institution: As defined in Section 1813(c)(2) of
Title 12 of the United States Code, as amended from time to time.
Interest Rate Adjustment Date: With respect to each Adjustable Rate
Mortgage Loan, the date, specified in the related Mortgage Note and the related
Mortgage Loan Schedule, on which the Mortgage Interest Rate is adjusted.
Interim Funder: With respect to each MERS Designated Mortgage Loan,
the Person named on the MERS(R) System as the interim funder pursuant to the
MERS Procedures Manual.
Interim Servicer: Fremont Investment & Loan and its successors in
interest.
Interim Servicing Agreement: That certain Xxxxxxx and Restated Flow
Interim Servicing Agreement, dated as of January 1, 2006, by and between the
Purchaser and the Seller.
Investor: With respect to each MERS Designated Mortgage Loan, the
Person named on the MERS(R) System as the investor pursuant to the MERS
Procedures Manual.
Lifetime Rate Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute maximum Mortgage
Interest Rate thereunder. The Mortgage Interest Rate during the terms of each
Adjustable Rate Mortgage Loan shall not at any time exceed the Mortgage Interest
Rate at the time of origination of such Adjustable Rate Mortgage Loan by more
than the amount per annum set forth on the related Mortgage Loan Schedule.
Limited Documentation Program: The guidelines under which the Seller
generally originates Mortgage Loans principally on the basis of the
Loan-to-Value Ratio of the related Mortgage Loan and the creditworthiness of the
Mortgagor.
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or assignment
of such Mortgage Loan, trustee's sale, foreclosure sale or otherwise or the sale
of the related Mortgaged Property if the Mortgaged Property is acquired in
satisfaction of the Mortgage Loan.
Loan in Breach: Shall have the meaning set forth in Section 9.04
hereof.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan, the
ratio (expressed as a percentage) of the outstanding principal amount of the
Mortgage Loan as of the related date of origination (unless otherwise
indicated), to the Appraised Value of the Mortgaged Property.
MERS: MERSCORP, Inc., its successors and assigns.
MERS Designated Mortgage Loan: Mortgage Loans for which (a) the
Seller has designated or will designate MERS as, and has taken or will take such
action as is necessary to cause MERS to be, the mortgagee of record, as nominee
for the Seller, in accordance with MERS Procedure Manual and (b) the Seller has
designated or will designate the Custodian as the Investor on the MERS(R)
System.
MERS Procedure Manual: The MERS Procedures Manual, as it may be
amended, supplemented or otherwise modified from time to time.
MERS Report: The report from the MERS System listing MERS Designated
Mortgage Loans and other information.
MERS(R) System: MERS mortgage electronic registry system, as more
particularly described in the MERS Procedures Manual.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Mortgage: The mortgage, deed of trust or other instrument securing a
Mortgage Note, which creates a first or second lien, as applicable, on an
unsubordinated estate in fee simple in real property securing the Mortgage Note;
except that with respect to real property located in jurisdictions in which the
use of leasehold estates for residential properties is a widely-accepted
practice, the mortgage, deed of trust or other instrument securing the Mortgage
Note may secure and create a first lien upon a leasehold estate of the
Mortgagor.
Mortgage File: The items pertaining to a particular Mortgage Loan
referred to in Exhibit A annexed hereto, and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: The annual rate of interest borne on a
Mortgage Note with respect to each Mortgage Loan.
Mortgage Loan: An individual Mortgage Loan which is the subject of
this Agreement, each Mortgage Loan originally sold and subject to this Agreement
being identified on the related Mortgage Loan Schedule, which Mortgage Loan
includes without limitation the Mortgage File, the Credit File, the Servicing
File, the Monthly Payments, Principal Prepayments, Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds, Servicing Rights, Prepayment
Penalties, and all other rights, benefits, proceeds and obligations arising from
or in connection with such Mortgage Loan, excluding replaced or repurchased
mortgage loans.
Mortgage Loan Documents: The documents required to be delivered to
the Custodian pursuant to Section 6.03 hereof with respect to any Mortgage Loan.
Mortgage Loan Package: A pool of Mortgage Loans sold to the
Purchaser by the Seller on a Closing Date.
Mortgage Loan Schedule: With respect to each Mortgage Loan Package,
the schedule of Mortgage Loans, attached to the related Assignment and
Conveyance as Schedule 1, setting forth the information attached hereto as
Exhibit C.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgaged Property: The real property (or leasehold estate, if
applicable) securing repayment of the debt evidenced by a Mortgage Note.
Mortgagor: The obligor on a Mortgage Note.
Officer's Certificate: A certificate signed by the Chairman of the
Board or the Vice Chairman of the Board or a President or a Vice President and
by the Treasurer or the Secretary or one of the Assistant Treasurers or
Assistant Secretaries of the Seller, and delivered to the Purchaser as required
by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be counsel
for the Seller, reasonably acceptable to the Purchaser.
Periodic Rate Cap: With respect to each Adjustable Rate Mortgage
Loan, the provision of each Mortgage Note which provides for an absolute maximum
amount by which the Mortgage Interest Rate therein may increase or decrease on
an Interest Rate Adjustment Date above or below the Mortgage Interest Rate
previously in effect.
Person: Any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization, government or any agency or political subdivision thereof.
Preliminary Mortgage Schedule: As defined in Section 3.
Prepayment Penalty: With respect to each Mortgage Loan, the fee, if
any, payable upon the prepayment, in whole or in part, of such Mortgage Loan, as
set forth in the related Mortgage Note.
Principal Prepayment: Any payment or other recovery of principal on
a Mortgage Loan which is received in advance of its scheduled Due Date,
including any Prepayment Penalty or premium thereon and which is not accompanied
by an amount of interest representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment.
Purchase Price: The price paid on the related Closing Date by the
Purchaser to the Seller in exchange for the Mortgage Loans in the related
Mortgage Loan Package as calculated in Section 4 of this Agreement.
Purchase Price and Terms Agreement: With respect to each purchase of
a Mortgage Loan Package hereunder, that certain letter agreement setting forth
the general terms and conditions of such transaction consummated herein and
identifying the Mortgage Loans to be purchased hereunder, by and between the
Seller and the Purchaser.
Purchaser: Xxxxxxx Xxxxx Mortgage Company, a New York limited
partnership, and its successors in interest and assigns, and any successor to
the Purchaser under this Agreement as herein provided.
Qualified Correspondent: Any Person from which the Seller purchased
Mortgage Loans, provided that the following conditions are satisfied: (i) such
Mortgage Loans were originated pursuant to an agreement between the Seller and
such Person that contemplated that such Person would underwrite mortgage loans
from time to time, for sale to the Seller, in accordance with underwriting
guidelines designated by the Seller ("Designated Guidelines") or guidelines that
do not vary materially from such Designated Guidelines; (ii) such Mortgage Loans
were in fact underwritten as described in clause (i) above and were acquired by
the Seller within one hundred eighty (180) days after origination; (iii) either
(x) the Designated Guidelines were, at the time such Mortgage Loans were
originated, used by the Seller in origination of mortgage loans of the same type
as the Mortgage Loans for the Seller's own account or (y) the Designated
Guidelines were, at the time such Mortgage Loans were underwritten, designated
by the Seller on a consistent basis for use by lenders in originating mortgage
loans to be purchased by the Seller; and (iv) the Seller employed, at the time
such Mortgage Loans were acquired by the Seller, pre-purchase or post-purchase
quality assurance procedures (which may involve, among other things, review of a
sample of mortgage loans purchased during a particular time period or through
particular channels) designed to ensure that Persons from which it purchased
mortgage loans properly applied the underwriting criteria designated by the
Seller.
Qualified Substitute Mortgage Loan: A mortgage loan eligible to be
substituted by the Seller for a Deleted Mortgage Loan which must, on the date of
such substitution, (i) have an outstanding principal balance, after deduction of
all scheduled payments due in the month of substitution (or in the case of a
substitution of more than one mortgage loan for a Deleted Mortgage Loan, an
aggregate principal balance), not in excess of the outstanding principal balance
of the Deleted Mortgage Loan (the amount of any shortfall will be deposited in
the Custodial Account by the Seller in the month of substitution); (ii) have a
Mortgage Interest Rate not less than, and not more than 1% greater than, the
Mortgage Interest Rate of the Deleted Mortgage Loan; (iii) have a remaining term
to maturity not greater than, and not more than one year less than, that of the
Deleted Mortgage Loan; (iv) be of the same type as the Deleted Mortgage Loan
(i.e., fixed rate or adjustable rate with same Periodic Rate Cap, and Index);
and (v) comply with each representation and warranty (respecting individual
Mortgage Loans) set forth in Section 9 hereof.
Reconstitution: Any Securitization Transaction or Whole Loan
Transfer.
Reconstitution Date: As defined in Section 13.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or
by the staff of the Commission, or as may be provided by the Commission or its
staff from time to time.
Remittance Date: The date specified in the Interim Servicing
Agreement (with respect to each Mortgage Loan, as specified therein).
Repurchase Price: With respect to any Mortgage Loan, a price equal
to the then Stated Principal Balance of the Mortgage Loan to be repurchased,
plus accrued interest thereon at the Mortgage Interest Rate from the date on
which interest had last been paid or advanced through the date of such
repurchase, plus the amount of any outstanding advances owed to any servicer,
plus all costs and expenses incurred by the Purchaser or any servicer arising
out of or based upon such breach, including without limitation costs and
expenses incurred in the enforcement of the Seller's repurchase obligation
hereunder, plus any costs and damages incurred by the related trust with respect
to any securitization of the Mortgage Loan in connection with any violation by
such Mortgage Loan of any predatory- or abusive-lending law.
RESPA: Real Estate Settlement Procedures Act, as amended from time
to time.
Second Lien Mortgage Loans: A Mortgage Loan secured by a second lien
on the related Mortgaged Property.
Securities Act: The Securities Act of 1933, as amended.
Securitization Transaction: Any transaction involving either (1) a
sale or other transfer of some or all of the Mortgage Loans directly or
indirectly to an issuing entity in connection with an issuance of publicly
offered or privately placed, rated or unrated mortgage-backed securities or (2)
an issuance of publicly offered or privately placed, rated or unrated
securities, the payments on which are determined primarily by reference to one
or more portfolios of residential mortgage loans consisting, in whole or in
part, of some or all of the Mortgage Loans.
Seller: Fremont Investment & Loan and its successors in interest.
Seller Information: As defined in Subsection 30.04(a).
Servicing Agreement: The agreement to be entered into by the
Purchaser and the Successor Servicer, providing for such successor servicer to
service the Mortgage Loans.
Servicing Fee: With respect to each Mortgage Loan subject to the
Interim Servicing Agreement, a fee payable monthly equal to one-twelfth of the
product of (a) the Servicing Fee Rate and (b) the outstanding principal balance
as of the beginning of the month of such Mortgage Loan. Such fee shall be
payable monthly and shall be pro-rated for any portion of a month during which
the Mortgage Loan is serviced by the Seller under the Interim Servicing
Agreement. The obligation of the Purchaser to pay the Servicing Fee is limited
to, and the Servicing Fee is payable solely from, the interest portion
(including recoveries with respect to interest from Liquidation Proceeds,
Condemnation Proceeds and Insurance Proceeds, to the extent permitted by this
Agreement) of such Monthly Payment collected by the Seller, or as otherwise
provided under this Agreement.
Servicing Fee Rate: An amount per annum as set forth in the Interim
Servicing Agreement.
Servicing File: With respect to each Mortgage Loan, the file
retained by the Seller consisting of originals of all documents in the Mortgage
File which are not delivered to the Purchaser or the Custodian and copies of the
Mortgage Loan Documents set forth in Section 2 of the Custodial Agreement.
Servicing Rights: Any and all of the following: (a) any and all
rights to service the Mortgage Loans; (b) any payments to or monies received by
the Seller for servicing the Mortgage Loans; (c) any late fees, penalties or
similar payments with respect to the Mortgage Loans but not including any
Prepayment Penalties; (d) all agreements or documents creating, defining or
evidencing any such servicing rights to the extent they relate to such servicing
rights and all rights of the Seller thereunder; (e) Escrow Payments or other
similar payments with respect to the Mortgage Loans and any amounts actually
collected by the Seller with respect thereto; (f) all accounts and other rights
to payment related to any of the property described in this paragraph; and (g)
any and all documents, files, records, servicing files, servicing documents,
servicing records, data tapes, computer records, or other information pertaining
to the Mortgage Loans or pertaining to the past, present or prospective
servicing of the Mortgage Loans.
Sponsor: The sponsor, as such term is defined in Regulation AB, with
respect to any Securitization Transaction.
Stated Principal Balance: As to each Mortgage Loan, (i) the
principal balance of the Mortgage Loan at the related Cut-off Date after giving
effect to payments of principal due on or before such date, whether or not
received, minus (ii) all amounts previously distributed to the Purchaser with
respect to the related Mortgage Loan representing payments or recoveries of
principal or advances in lieu thereof.
Static Pool Information: Static pool information as described in
Item 1105(a)(1)-(3) and 1105(c) of Regulation AB.
Successor Servicer: A servicer designated by the Purchaser pursuant
to Sections 8 and 9.03 which is entitled to the benefits of the indemnifications
set forth in Sections 9.03 and 14.01.
Third-Party Originator: Each Person, other than a Qualified
Correspondent, that originated Mortgage Loans acquired by the Seller.
Transaction Agreement: Shall have the meaning set forth in Section
13 hereof.
Transfer Date: The date set forth in the related Purchase Price and
Terms Agreement. If no date is set forth therein, the Transfer Date shall be (a)
the earlier of (i) the date on which a Successor Servicer assumes the servicing
of the Mortgage Loans pursuant to the Servicing Agreement pursuant to which the
Successor Servicer shall service the Mortgage Loans on behalf of the Purchaser
and its assignees and (ii) the 1st Business Day of the month following the date
which is 90 days after the Closing Date or (b) such other date as mutually
agreed by the Seller and the Purchaser.
Underwriting Guidelines: With respect to each Mortgage Loan Package,
the related underwriting guidelines of the Seller, as delivered to the Purchaser
prior to the related Closing Date.
Whole Loan Agreement: Any Transaction Agreement in respect of a
Whole Loan Transfer.
Whole Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans, other than a Securitization Transaction.
SECTION 2. Agreement to Purchase.
The Seller, on each Closing Date, agrees to sell, and the Purchaser
agrees to purchase, Mortgage Loans having an aggregate principal balance on the
related Cut-off Date in an amount as set forth in the related Purchase Price and
Terms Agreement, or in such other amount as agreed by the Purchaser and the
Seller as evidenced by the aggregate scheduled principal balance of the Mortgage
Loans accepted by the Purchaser on the related Closing Date.
SECTION 3. Mortgage Schedules.
The Seller shall provide the Purchaser with certain information
constituting a preliminary listing of the Mortgage Loans in a Mortgage Loan
Package to be purchased on the related Closing Date in accordance with the
related Purchase Price and Terms Agreement and this Agreement (a "Preliminary
Mortgage Schedule").
The Seller shall deliver the related Mortgage Loan Schedule for the
Mortgage Loans in the related Mortgage Loan Package to be purchased on the
related Closing Date to the Purchaser at least two (2) Business Days prior to
the related Closing Date. The Mortgage Loan Schedule shall be the Preliminary
Mortgage Schedule with those Mortgage Loans which have not been funded prior to
the Closing Date deleted. The related Mortgage Loan Schedule shall be attached
to the related Purchase Price and Terms Agreement.
SECTION 4. Purchase Price.
The Purchase Price for each Mortgage Loan in a Mortgage Loan Package
shall be the percentage of par as stated in the related Purchase Price and Terms
Agreement (subject to adjustment as provided therein), multiplied by the Stated
Principal Balance, as of the related Cut-off Date, of the Mortgage Loans listed
on the related Mortgage Loan Schedule, after giving effect to payments of
principal due on or before the related Cut-off Date, whether or not received.
In addition to the Purchase Price as described above, the Purchaser
shall pay to the Seller, on the related Closing Date accrued interest on the
Stated Principal Balance of the related Mortgage Loans as of the related Cut-off
Date at the weighted average Mortgage Interest Rate of those Mortgage Loans from
the Cut-off Date through the day prior to the related Closing Date, inclusive.
The Purchase Price plus accrued interest as set forth in the preceding paragraph
shall be paid to the Seller by wire transfer of immediately available funds to
an account designated by the Seller in writing.
The Purchaser shall be entitled to (1) all principal due after the
related Cut-off Date, (2) all other recoveries of late charges, prepayment
penalties, assumption fees or other charges collected after the related Cut-off
Date, and (3) all payments of interest on the Mortgage Loans at the Mortgage
Interest Rate due after the related Cut-off Date.
SECTION 5. Examination of Mortgage Files.
Prior to the related Closing Date, the Purchaser shall have the
right to perform on-site due diligence at the premises of the Seller with
respect to the Mortgage Loans. The Seller will provide information and otherwise
cooperate with the due diligence reviews of the Purchaser, its co-investors, its
financial partners, its designees and the rating agencies. The Seller shall make
the legal files and the credit files, together with any payment histories,
collection histories, bankruptcy histories, broker's price opinions, and any
other information with respect to the Mortgage Loans requested by the Purchaser,
available at the Seller's offices for review by Purchaser, its designee or its
agents during normal business hours before the related Closing Date. At the
Purchaser's expense, the Purchaser shall have the right to order additional
broker's price opinions in its sole discretion.
Prior to the related Cut-off Date, the Purchaser shall have the
right to reject any Mortgage Loan (a) for which the documentation listed in
Credit File is missing or defective in whole or in part, (b) for which the
related broker's price opinion varies substantially below the appraisal provided
in connection with the origination of the related Mortgage Loan or poses other
marketing issues, (c) which does not generally conform to the Seller's
underwriting or compliance guidelines, (d) which does not conform to the terms
of this letter agreement or is in breach of the representations and warranties
set forth in Section 9.02, or (e) for which the credit or compliance
characteristics do not comply with federal, state or local requirements.
Purchaser shall notify the Seller of any such rejected Mortgage Loan no later
than three business days prior to the related Closing Date.
Notwithstanding the foregoing, the Purchaser may purchase all or
part of the Mortgage Loans without conducting any partial or complete due
diligence examination. The fact that the Purchaser or its designee has conducted
or failed to conduct any partial or complete examination of the files shall not
affect the Purchaser's (or any of its successor's) rights to demand repurchase
or other relief for breach of Mortgage Loan representations and warranties,
missing or defective documents or as otherwise provided in the Purchase
Agreement.
In the event that the Seller fails to deliver the Credit Files with
respect to any Mortgage Loan, the Seller shall, upon the request of the
Purchaser, repurchase or substitute for such Mortgage Loan at the price and in
the manner specified in Subsection 9.04.
SECTION 6. Conveyance from Seller to Purchaser.
Subsection 6.01. Conveyance of Mortgage Loans.
The Seller, by execution and delivery of the related Assignment and
Conveyance on each related Closing Date, does hereby sell, transfer, assign, set
over and convey to the Purchaser, without recourse, but subject to the terms of
this Agreement, all right, title and interest of the Seller in and to the
Mortgage Loans in the related Mortgage Loan Package and the related Mortgage
Files and all rights and obligations arising under the documents contained
therein. The Seller shall cause the Servicing File retained by the Seller
pursuant to this Agreement to be appropriately identified in the Seller's
computer system and/or books and records, as appropriate, to clearly reflect the
sale of the related Mortgage Loan to the Purchaser. The Seller shall release
from its custody the contents of any Servicing File retained by it only in
accordance with this Agreement or the Interim Servicing Agreement, except when
such release is required in connection with a repurchase of any such Mortgage
Loan pursuant to Subsection 9.04.
Subsection 6.02. Books and Records.
Record title to each Mortgage as of the related Closing Date shall
be in the name of the Seller, an Affiliate of the Seller, the Purchaser or one
or more designees of the Purchaser, as the Purchaser shall select.
Notwithstanding the foregoing, each Mortgage and related Mortgage Note shall be
possessed solely by the Purchaser or the appropriate designee of the Purchaser,
as the case may be. All rights arising out of the Mortgage Loans including, but
not limited to, all funds received by the Seller after the related Cut-off Date
on or in connection with a Mortgage Loan shall be vested in the Purchaser or one
or more designees of the Purchaser; provided, however, that all funds received
on or in connection with a Mortgage Loan shall be received and held by the
Seller in trust for the benefit of the Purchaser or the appropriate designee of
the Purchaser, as the case may be, as the owner of the Mortgage Loans pursuant
to the terms of this Agreement.
The sale of each Mortgage Loan shall be reflected on the Seller's
balance sheet and other financial statements as a sale of assets by the Seller.
The Seller shall be responsible for maintaining, and shall maintain,
a complete set of books and records for each Mortgage Loan which shall be marked
clearly to reflect the ownership of each Mortgage Loan by the Purchaser, which
marking may be evidenced by a designation of electronic files or records
maintained by the Seller in connection with each Mortgage Loan. In particular,
to the extent required by applicable law, the Seller shall maintain in its
possession, available for inspection by the Purchaser, and shall deliver to the
Purchaser upon demand, evidence of compliance with all federal, state and local
laws, rules and regulations. To the extent that original documents are not
required for purposes of realization of Liquidation Proceeds or Insurance
Proceeds, documents maintained by the Seller may be in the form of microfilm or
microfiche.
Subsection 6.03. Delivery of Mortgage Loan Documents.
The Seller shall deliver and release to the Custodian no later than
three (3) Business Days prior to the related Closing Date the documents and
instruments in the Mortgage File for each Mortgage Loan.
The Custodian shall certify its receipt of all such Mortgage Loan
Documents required to be delivered pursuant to the Custodial Agreement for the
related Closing Date, as evidenced by the certification and trust receipt of the
Custodian in the form annexed to the Custodial Agreement. The Seller shall
comply with the terms of the Custodial Agreement and the Purchaser shall pay all
fees and expenses charged by the Custodian associated with the initial inventory
and maintenance of the Mortgage Loan Documents.
The Seller shall forward to the Custodian, or to such other Person
as the Purchaser shall designate in writing, original documents evidencing an
assumption, modification, consolidation or extension of any Mortgage Loan
entered into in accordance with this Agreement within two weeks of their
execution, provided, however, that the Seller shall provide the Custodian, or to
such other Person as the Purchaser shall designate in writing, with a certified
true copy of any such document submitted for recordation within two weeks of its
execution, and shall promptly provide the original of any document submitted for
recordation or a copy of such document certified by the appropriate public
recording office to be a true and complete copy of the original within 180 days
of the related Closing Date.
In the event any document required to be delivered to the Custodian
pursuant to the preceding paragraph, including an original or copy of any
document submitted for recordation to the appropriate public recording office,
is not so delivered to the Custodian, or to such other Person as the Purchaser
shall designate in writing, within 180 days following the related Closing Date
(other than with respect to the Assignments of Mortgage which shall be delivered
to the Custodian in blank on or prior to the related Closing Date and recorded
subsequently by the Purchaser or its designee), and in the event that the Seller
does not cure such failure within 30 days of discovery or receipt of written
notification of such failure from the Purchaser, the related Mortgage Loan
shall, upon the request of the Purchaser, be repurchased by the Seller at the
price and in the manner specified in Subsection 9.04. The foregoing repurchase
obligation shall not apply in the event that the Seller cannot deliver such
original or copy of any document submitted for recordation to the appropriate
public recording office within the specified period due to a delay caused by the
recording office in the applicable jurisdiction, provided that (i) the Seller
shall deliver a recording receipt of such recording office or, if such recording
receipt is not available, an Officer's Certificate of a servicing officer of the
Seller, confirming that such documents have been accepted for recording (upon
request of the Purchaser and delivery by the Purchaser to the Seller of a
schedule of the related Mortgage Loans, the Seller shall reissue and deliver to
the Purchaser or its designee said Officer's Certificate relating to the related
Mortgage Loans), and (ii) such document is delivered within twelve (12) months
of the related Closing Date.
The Seller shall pay all initial recording, registration or transfer
fees, if any, for the assignments of mortgage and any other fees or costs in
transferring all original documents to the Custodian or, upon written request of
the Purchaser, to the Purchaser or the Purchaser's designee. The Purchaser or
the Purchaser's designee shall be responsible for recording the Assignments of
Mortgage and shall be reimbursed by the Seller for the costs associated
therewith pursuant to the preceding sentence.
Subsection 6.04. Quality Control Procedures.
The Seller shall maintain an internal quality control program that
verifies in a manner consistent with accepted industry procedures, on a regular
basis, the existence and accuracy of the legal documents, credit documents,
property appraisals, and underwriting decisions that the Seller maintain for
other mortgage loans purchased, originated and serviced by the Seller. The
program includes evaluating and monitoring the overall quality of the Seller's
loan production and the servicing activities of the Seller. The program ensures
that the Mortgage Loans are originated and serviced in accordance with Accepted
Servicing Practices and the Underwriting Guidelines, guards against dishonest,
fraudulent, or negligent acts; and guards against errors and omissions by
officers, employees, or other authorized persons.
SECTION 7. Servicing of the Mortgage Loans.
The Mortgage Loans shall be sold by the Seller to the Purchaser on a
servicing released basis. Subject to, and upon the terms and conditions of this
Agreement, with respect to the Mortgage Loans, the Seller hereby sells,
transfers, assigns and delivers to the Purchaser, on the related Closing Date,
the Servicing Rights with respect to the Mortgage Loans in the related Mortgage
Loan Package.
The Purchaser shall retain the Seller as contract servicer of the
Mortgage Loans for an interim period pursuant to and in accordance with the
terms and conditions contained in the Interim Servicing Agreement (with respect
to each Mortgage Loan, for an interim period, as specified therein). Pursuant to
the Interim Servicing Agreement, the Seller shall begin servicing the Mortgage
Loans on behalf of the Purchaser and shall be entitled to the Servicing Fee with
respect to such Mortgage Loans from the related Closing Date until the
termination of the Interim Servicing Agreement with respect to the related
Mortgage Loans as set forth therein, but in no event shall the Seller receive
less than 90 days of such compensation.
SECTION 8. Transfer of Servicing.
On the related Transfer Date, the Seller shall cease all servicing
responsibilities under the Interim Servicing Agreement related to the related
Mortgage Loans and the Successor Servicer shall service such Mortgage Loans for
the benefit of the Purchaser pursuant to the Servicing Agreement.
On or prior to the related Transfer Date, the Seller shall, at its
sole cost and expense, take such steps as may be necessary or appropriate to
effectuate and evidence the transfer of the servicing of the related Mortgage
Loans to the Purchaser, or its designee, including but not limited to the
following:
(a) Notice to Mortgagors. The Seller shall mail to the Mortgagor of
each related Mortgage Loan a letter advising such Mortgagor of the transfer of
the servicing of the related Mortgage Loan to the Purchaser, or its designee, in
accordance with the Xxxxxxxx Xxxxxxxx National Affordable Housing Act of 1990 at
least 15 days prior to the related Transfer Date; provided, however, the content
and format of the letter shall have the prior approval of the Purchaser. The
Seller shall provide the Purchaser with copies of all such related notices no
later than the related Transfer Date.
(b) Notice to Taxing Authorities and Insurance Companies. The Seller
shall transmit to the applicable taxing authorities and insurance companies
(including primary mortgage insurance policy insurers, if applicable) and/or
agents, notification of the transfer of the servicing to the Purchaser, or its
designee, and instructions to deliver all notices, tax bills and insurance
statements, as the case may be, to the Purchaser or its designee from and after
the related Transfer Date. The Seller shall provide the Purchaser and its
designee with copies of all such notices no later than 30 days following the
related Transfer Date.
(c) Delivery of Servicing Records. The Seller shall forward to the
Purchaser, or its designee, all servicing records and the Servicing File in the
Seller's possession relating to each related Mortgage Loan including the
information enumerated in the Interim Servicing Agreement (with respect to each
such Mortgage Loan, for an interim period, as specified therein).
(d) Escrow Payments. The Seller shall provide the Purchaser, or its
designee, with immediately available funds by wire transfer in the amount of the
net Escrow Payments and suspense balances and all loss draft balances associated
with the related Mortgage Loans. The Seller shall provide the Purchaser with an
accounting statement of Escrow Payments and suspense balances and loss draft
balances sufficient to enable the Purchaser to reconcile the amount of such
payment with the accounts of the Mortgage Loans. Additionally, the Seller shall
wire transfer to the Purchaser the amount of any agency, trustee or prepaid
Mortgage Loan payments and all other similar amounts held by the Seller.
(e) Payoffs and Assumptions. The Seller shall provide to the
Purchaser, or its designee, copies of all assumption and payoff statements
generated by the Seller on the related Mortgage Loans from the related Cut-off
Date to the related Transfer Date.
(f) Mortgage Payments Received Prior to Transfer Date. Prior to the
related Transfer Date all payments received by the Seller on each related
Mortgage Loan shall be properly applied by the Seller to the account of the
particular Mortgagor.
(g) Mortgage Payments Received After Transfer Date. The amount of
any related Monthly Payments received by the Seller (a) during the first 30 days
after the related Transfer Date shall be forwarded to the Purchaser by overnight
mail on the date of receipt and (b) after the date which is 30 days after the
related Transfer Date shall be forwarded to the Purchaser by overnight mail
twice weekly. The Seller shall notify the Purchaser of the particulars of the
payment, which notification requirement shall be satisfied if the Seller
forwards with their payment sufficient information to permit appropriate
processing of the payment by the Purchaser. The Seller shall assume full
responsibility for the necessary and appropriate legal application of such
Monthly Payments received by the Seller after the related Transfer Date with
respect to related Mortgage Loans then in foreclosure or bankruptcy; provided,
for purposes of this Agreement, necessary and appropriate legal application of
such Monthly Payments shall include, but not be limited to, endorsement of a
Monthly Payment to the Purchaser with the particulars of the payment such as the
account number, dollar amount, date received and any special Mortgagor
application instructions and the Seller shall comply with the foregoing
requirements with respect to all Monthly Payments received by it after the
related Transfer Date.
(h) Misapplied Payments. Misapplied payments shall be processed as
follows:
(1) All parties shall cooperate in correcting misapplication
errors;
(2) The party receiving notice of a misapplied payment
occurring prior to the related Transfer Date and discovered after
the related Transfer Date shall immediately notify the other party;
(3) If a misapplied payment which occurred prior to the
related Transfer Date cannot be identified and said misapplied
payment has resulted in a shortage in a Custodial Account or Escrow
Account, the Seller shall be liable for the amount of such shortage.
The Seller shall reimburse the Purchaser for the amount of such
shortage within thirty (30) days after receipt of written demand
therefor from the Purchaser;
(4) If a misapplied payment which occurred prior to the
related Transfer Date has created an improper Purchase Price as the
result of an inaccurate outstanding principal balance, a check shall
be issued to the party shorted by the improper payment application
within five (5) Business Days after notice thereof by the other
party; and
(5) Any check issued under the provisions of this Section 8(h)
shall be accompanied by a statement indicating the Seller and/or the
Purchaser Mortgage Loan identification number and an explanation of
the allocation of any such payments.
(i) Reconciliation. The Seller shall, on or before the related
Transfer Date, reconcile principal balances and make any monetary adjustments
required by the Purchaser. Any such monetary adjustments will be transferred
between the Seller and the Purchaser as appropriate.
(j) IRS Forms. The Seller shall file all IRS Forms 1099, 1099A, 1098
or 1041 and K-1 which are required to be filed on or before the related Transfer
Date in relation to the servicing and ownership of the related Mortgage Loans.
The Seller shall provide copies of such forms to the Purchaser upon request and
shall reimburse the Purchaser for any costs or penalties incurred by the
Purchaser due to the Seller's failure to comply with this paragraph.
SECTION 9. Representations, Warranties and Covenants of the Seller;
Remedies for Breach.
Subsection 9.01. Representations and Warranties Regarding the
Seller.
The Seller represents, warrants and covenants to the Purchaser, its
successors and assigns and the Successor Servicer that as of the date hereof and
as of each Closing Date:
(a) Due Organization and Authority. The Seller is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation or formation and has all licenses necessary to
carry on its business as now being conducted and is licensed, qualified and in
good standing in each state wherein it owns or leases any material properties or
where a Mortgaged Property is located, if the laws of such state require
licensing or qualification in order to conduct business of the type conducted by
the Seller, and in any event the Seller is in compliance with the laws of any
such state to the extent necessary to ensure the enforceability of the related
Mortgage Loan in accordance with the terms of this Agreement; the Seller has the
full corporate power, authority and legal right to hold, transfer and convey the
Mortgage Loans and to execute and deliver this Agreement and to perform its
obligations hereunder; the execution, delivery and performance of this Agreement
(including all instruments of transfer to be delivered pursuant to this
Agreement) by the Seller and the consummation of the transactions contemplated
hereby have been duly and validly authorized; this Agreement and all agreements
contemplated hereby have been duly executed and delivered and constitute the
valid, legal, binding and enforceable obligations of the Seller, regardless of
whether such enforcement is sought in a proceeding in equity or at law; and all
requisite corporate action has been taken by the Seller to make this Agreement
and all agreements contemplated hereby valid and binding upon the Seller in
accordance with their terms;
(b) Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in the ordinary course of
business of the Seller, and the transfer, assignment and conveyance of the
Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are
not subject to the bulk transfer or any similar statutory provisions in effect
in any applicable jurisdiction;
(c) No Conflicts. Neither the execution and delivery of this
Agreement, the acquisition or origination of the Mortgage Loans by the Seller,
the sale of the Mortgage Loans to the Purchaser, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with the
terms and conditions of this Agreement, will conflict with or result in a breach
of any of the terms, conditions or provisions of the Seller's charter, by-laws
or other organizational documents or any legal restriction or any agreement or
instrument to which the Seller is now a party or by which it is bound, or
constitute a default or result in an acceleration under any of the foregoing, or
result in the violation of any law, rule, regulation, order, judgment or decree
to which the Seller or its property is subject, or result in the creation or
imposition of any lien, charge or encumbrance that would have an adverse effect
upon any of its properties pursuant to the terms of any mortgage, contract, deed
of trust or other instrument, or impair the ability of the Purchaser to realize
on the Mortgage Loans, impair the value of the Mortgage Loans, or impair the
ability of the Purchaser to realize the full amount of any insurance benefits
accruing pursuant to this Agreement;
(d) Ability to Perform; Solvency. The Seller does not believe, nor
does it have any reason or cause to believe, that it cannot perform each and
every covenant contained in this Agreement. The Seller is solvent and the sale
of the Mortgage Loans will not cause the Seller to become insolvent. The sale of
the Mortgage Loans is not undertaken with the intent to hinder, delay or defraud
any of Seller's creditors;
(e) No Litigation Pending. There is no action, suit, proceeding or
investigation pending or, to the best of the Seller's knowledge, threatened
against the Seller, before any court, administrative agency or other tribunal
(i) asserting the invalidity of this Agreement, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement, (iii)
which, either in any one instance or in the aggregate, is likely to result in
any material adverse change in the business, operations, financial condition,
properties or assets of the Seller, or in any material impairment of the right
or ability of the Seller to carry on its business substantially as now
conducted, or in any material liability on the part of the Seller, or which
would draw into question the validity of this Agreement or the Mortgage Loans or
of any action taken or to be taken in connection with the obligations of the
Seller contemplated herein, or which would be likely to impair materially the
ability of the Seller to perform under the terms of this Agreement, (iv)
relating to fraud, or (v) relating to predatory lending, or the Seller's
origination, servicing or closing practices which is likely to result in any
material adverse change in the business, operations, financial condition,
properties or assets of the Seller.
(f) No Consent Required. No consent, approval, authorization or
order of, or registration or filing with, or notice to any court or governmental
agency is required for the execution, delivery and performance by the Seller of
or compliance by the Seller with this Agreement or the Mortgage Loans, the
delivery of a portion of the Mortgage Files to the Custodian or the sale of the
Mortgage Loans or the consummation of the transactions contemplated by this
Agreement, or if required, such approval has been obtained prior to the related
Closing Date;
(g) Selection Process. The Mortgage Loans were not intentionally
selected from among the outstanding one- to four-family mortgage loans in the
Seller's portfolio at the related Closing Date as to which the representations
and warranties set forth in Subsection 9.02 could not be made;
(h) No Untrue Information. Neither this Agreement nor any
information, statement, tape, diskette, report, form, or other document
furnished or to be furnished by the Seller pursuant to this Agreement or any
Transaction Agreement or in connection with the transactions contemplated hereby
contains or will contain any material untrue statement of fact;
(i) Financial Statements. The Seller has delivered to the Purchaser
financial statements as to its last three complete fiscal years and any later
quarter ended more than 60 days prior to the execution of this Agreement. All
such financial statements fairly present the pertinent results of operations and
changes in financial position for each of such periods and the financial
position at the end of each such period of the Seller and its subsidiaries and
have been prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as set forth in the
notes thereto or as required by the Seller's regulator. There has been no change
in the business, operations, financial condition, properties or assets of the
Seller since the date of the Seller's financial statements that would have a
material adverse effect on its ability to perform its obligations under this
Agreement;
(j) Loan Experience. The Seller has delivered information as to its
loan charge-off or loan loss experience, its loan delinquency experience for the
immediately preceding three-year period, prepayment speed and delinquency
histories for at least the immediately preceding year, and all such information
so delivered shall be true and correct in all material respects;
(k) No Brokers. The Seller has not dealt with any broker, investment
banker, agent or other person that may be entitled to any commission or
compensation in connection with the sale of the Mortgage Loans;
(l) Sale Treatment. The Seller has been advised by its independent
certified public accountants that under generally accepted accounting principles
the transfer of the Mortgage Loans may be treated as a sale on the books and
records of the Seller and the Seller has determined that the disposition of the
Mortgage Loans pursuant to this Agreement will be afforded sale treatment for
tax and accounting purposes;
(m) Reasonable Purchase Price. The consideration received by the
Seller upon the sale of the Mortgage Loans under this Agreement constitutes fair
consideration and reasonably equivalent value for the Mortgage Loans;
(n) Seller's Purchase or Origination. The Seller's decision to
purchase or originate any mortgage loan or to deny any mortgage loan application
is an independent decision based upon Xxxxxx's underwriting guidelines, and is
in no way made as a result of Purchaser's decision to purchase, or not to
purchase, or the price Purchaser may offer to pay for, any such mortgage loan,
if originated;
(o) Ability to Service. The Seller has the facilities, procedures,
and experienced personnel necessary for the sound servicing of mortgage loans of
the same type as the Mortgage Loans. The Seller is duly qualified, licensed,
registered and otherwise authorized under all applicable federal, state and
local laws, and regulations, and is in good standing to enforce, originate, sell
mortgage loans to, and service mortgage loans in each jurisdiction wherein the
Mortgaged Properties are located;
(p) Insured Depository Institution Representations. The Seller makes
the following additional representations and warranties:
(i) This Agreement conforms to all statutory and regulatory
requirements applicable to the Seller. This Agreement is (a)
executed contemporaneously with the agreement reached by the Seller
and the Purchaser, (b) approved by a specific corporate or banking
association resolution by the board of directors of the Seller,
which approval shall be reflected in the minutes of said board, and
(c) continuously, from the time of its execution, an official record
of the Seller;
(ii) This Agreement has been duly and validly authorized by a
specific corporate or banking association resolution by the board of
directors of the Seller. A copy of such resolution, certified by the
corporate secretary of the Seller or attested to by a vice president
or higher officer of the Seller has been provided to the Purchaser;
and
(iii) The Seller will maintain a copy of this Agreement in its
official books and records.
Subsection 9.02. Representations and Warranties Regarding Individual
Mortgage Loans.
The Seller hereby represents and warrants to the Purchaser, its
successors and assigns and the Successor Servicer that, as to each Mortgage
Loan, as of the related Closing Date for such Mortgage Loan:
(a) Mortgage Loans as Described. The information set forth in the
related Mortgage Loan Schedule is complete, true and correct;
(b) Payments Current. All payments required to be made up to the
related Closing Date for the Mortgage Loan under the terms of the Mortgage Note,
other than payments not yet one month delinquent, have been made and credited.
No payment required under the Mortgage Loan is one month or more delinquent nor
has any payment under the Mortgage Loan been one month or more delinquent at any
time since the origination of the Mortgage Loan;
(c) No Outstanding Charges. Except for payment defaults of less than
one month, there are no defaults in complying with the terms of the Mortgage,
and all taxes, governmental assessments, insurance premiums, water, sewer and
municipal charges, leasehold payments or ground rents which previously became
due and owing have been paid, or an escrow of funds has been established in an
amount sufficient to pay for every such item which remains unpaid and which has
been assessed but is not yet due and payable. The Seller has not advanced funds,
or induced, solicited or knowingly received any advance of funds by a party
other than the Mortgagor, directly or indirectly, for the payment of any amount
required under the Mortgage Loan, except for interest accruing from the date of
the Mortgage Note or date of disbursement of the Mortgage Loan proceeds,
whichever is earlier, to the date which precedes by one (1) month the Due Date
of the first installment of principal and interest;
(d) Original Terms Unmodified. The terms of the Mortgage Note and
Mortgage have not been impaired, waived, altered or modified in any respect,
from the date of origination except by a written instrument which has been
recorded, if necessary to protect the interests of the Purchaser, and which has
been delivered to the Custodian or to such other Person as the Purchaser shall
designate in writing, and the terms of which are reflected in the related
Mortgage Loan Schedule. No Mortgage Loan has been modified so as to restructure
the payment obligations or re-age the Mortgage Loan. The substance of any such
waiver, alteration or modification has been approved by the title insurer, if
any, to the extent required by the policy, and its terms are reflected on the
related Mortgage Loan Schedule, if applicable. No Mortgagor has been released,
in whole or in part, except in connection with an assumption agreement, approved
by the issuer of the title insurer, to the extent required by the policy, and
which assumption agreement is part of the Mortgage Loan File delivered to the
Custodian or to such other Person as the Purchaser shall designate in writing
and the terms of which are reflected in the related Mortgage Loan Schedule;
(e) No Defenses. The Mortgage Loan is not subject to any right of
rescission, set-off, counterclaim or defense, including without limitation the
defense of usury, nor will the operation of any of the terms of the Mortgage
Note or the Mortgage, or the exercise of any right thereunder, render either the
Mortgage Note or the Mortgage unenforceable, in whole or in part, or subject to
any right of rescission, set-off, counterclaim or defense, including without
limitation the defense of usury, and no such right of rescission, set-off,
counterclaim or defense has been asserted with respect thereto, and no Mortgagor
was a debtor in any state or federal bankruptcy or insolvency proceeding at, or
subsequent to, the time the Mortgage Loan was originated;
(f) Hazard Insurance. Pursuant to the terms of the Mortgage, all
buildings or other improvements upon the Mortgaged Property are insured by a
generally acceptable insurer against loss by fire, hazards of extended coverage,
as well as all additional requirements set forth in the Interim Servicing
Agreement. If required by the National Flood Insurance Act of 1968, as amended,
each Mortgage Loan is covered by a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
as in effect, as well as all additional requirements set forth in the Interim
Servicing Agreement. All individual insurance policies contain a standard
mortgagee clause naming the Seller and its successors and assigns as mortgagee,
and all premiums thereon have been paid and such policies may not be reduced,
terminated or cancelled without 30 days' prior written notice to the mortgagee.
The Mortgage obligates the Mortgagor thereunder to maintain the hazard insurance
policy at the Mortgagor's cost and expense, and on the Mortgagor's failure to do
so, authorizes the holder of the Mortgage to obtain and maintain such insurance
at such Xxxxxxxxx's cost and expense, and to seek reimbursement therefor from
the Mortgagor. Where required by state law or regulation, the Mortgagor has been
given an opportunity to choose the carrier of the required hazard insurance,
provided the policy is not a "master" or "blanket" hazard insurance policy
covering a condominium, or any hazard insurance policy covering the common
facilities of a planned unit development. The hazard insurance policy is the
valid and binding obligation of the insurer, is in full force and effect, and
will be in full force and effect and inure to the benefit of the Purchaser upon
the consummation of the transactions contemplated by this Agreement. The Seller
has not engaged in, and has no knowledge of the Mortgagor's or any servicer's
having engaged in, any act or omission which would impair the coverage of any
such policy, the benefits of the endorsement provided for herein, or the
validity and binding effect of such policy, including, without limitation, no
unlawful fee, commission, kickback or other unlawful compensation or value of
any kind has been or will be received, retained or realized by any attorney,
firm or other person or entity, and no such unlawful items have been received,
retained or realized by the Seller;
(g) Compliance with Applicable Laws. Any and all requirements of any
federal, state or local law including, without limitation, usury,
truth-in-lending, real estate settlement procedures, consumer credit protection,
predatory and abusive lending laws, equal credit opportunity and disclosure laws
or unfair and deceptive practices laws applicable to the Mortgage Loan
including, without limitation, any provisions relating to prepayment penalties,
have been complied with, the consummation of the transactions contemplated
hereby will not involve the violation of any such laws or regulations, and the
Seller shall maintain in its possession, available for the Purchaser's
inspection, and shall deliver to the Purchaser upon demand, evidence of
compliance with all such requirements. This representation and warranty is a
Deemed Material Breach Representation;
(h) No Satisfaction of Mortgage. The Mortgage has not been
satisfied, canceled, subordinated or rescinded, in whole or in part, and the
Mortgaged Property has not been released from the lien of the Mortgage, in whole
or in part, nor has any instrument been executed that would effect any such
release, cancellation, subordination or rescission. The Seller has not waived
the performance by the Mortgagor of any action, if the Mortgagor's failure to
perform such action would cause the Mortgage Loan to be in default, nor has the
Seller waived any default resulting from any action or inaction by the
Mortgagor;
(i) Location and Type of Mortgaged Property. The Mortgaged Property
is a fee simple property located in the state identified in the related Mortgage
Loan Schedule except that with respect to real property located in jurisdictions
in which the use of leasehold estates for residential properties is a
widely-accepted practice, the Mortgaged Property may be a leasehold estate and
consists of a single parcel real property with a detached single family
residence erected thereon, or a two- to four-family dwelling, or an individual
condominium unit in a low-rise condominium project, or an individual unit in a
planned unit development or a de minimis planned unit development which is in
each case four stories or less, provided, however, that any mobile home (double
wide only) or manufactured dwelling shall conform with the applicable Xxxxxx Xxx
(with respect to each Mortgage Loan which the Seller indicates is a Xxxxxx Xxx
eligible mortgage loan) and Freddie Mac requirements regarding such dwellings
and that no Mortgage Loan is secured by a single parcel of real property with a
cooperative housing corporation, a log home or a mobile home erected thereon or
by a mixed-use property, a property in excess of 10 acres, or other unique
property types. As of the date of origination, no portion of the Mortgaged
Property was used for commercial purposes, and since the date of origination, no
portion of the Mortgaged Property has been used for commercial purposes;
provided, that Mortgaged Properties which contain a home office shall not be
considered as being used for commercial purposes as long as the Mortgaged
Property has not been altered for commercial purposes and is not storing any
chemicals or raw materials other than those commonly used for homeowner repair,
maintenance and/or household purposes. With respect to any Mortgage Loan secured
by a Mortgaged Property improved by manufactured housing, (i) the related
manufactured housing unit is permanently affixed to the land, (ii) the related
manufactured housing unit and the related land are subject to a Mortgage
properly filed in the appropriate public recording office and naming the Seller
as mortgagee, (iii) the related Mortgaged Property is not located in the state
of New Jersey and (iv) as of the origination date of the related Mortgage Loan,
the related Mortgagor occupied the related manufactured home as its primary
residence. This representation and warranty is a Deemed Material Breach
Representation;
(j) Valid First or Second Lien. Each Mortgage is a valid and
subsisting first or second lien (as applicable) of record on a single parcel of
real estate constituting the Mortgaged Property, including all buildings and
improvements on the Mortgaged Property and all installations and mechanical,
electrical, plumbing, heating and air conditioning systems located in or annexed
to such buildings, and all additions, alterations and replacements made at any
time, with respect to the related Mortgage Loan, which exceptions are generally
acceptable to prudent mortgage lending companies, and such other exceptions to
which similar properties are commonly subject and which do not individually, or
in the aggregate, materially and adversely affect the benefits of the security
intended to be provided by such Mortgage. The lien of the Mortgage is subject
only to:
(1) the lien of current real property taxes and assessments
not yet due and payable;
(2) covenants, conditions and restrictions, rights of way,
easements and other matters of the public record as of the date of
recording acceptable to prudent mortgage lending institutions
generally and specifically referred to in the lender's title
insurance policy delivered to the originator of the Mortgage Loan
and (a) specifically referred to or otherwise considered in the
appraisal made for the originator of the Mortgage Loan or (b) which
do not adversely affect the Appraised Value of the Mortgaged
Property set forth in such appraisal; and
(3) other matters to which like properties are commonly
subject which do not materially interfere with the benefits of the
security intended to be provided by the Mortgage or the use,
enjoyment, value or marketability of the related Mortgaged Property;
and
(4) with respect to each Second Lien Mortgage a prior mortgage
lien on the Mortgaged Property.
Any security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a valid,
subsisting, enforceable and perfected (A) first lien and first priority security
interest with respect to each First Lien Mortgage Loan, or (B) second lien and
second priority security interest with respect to each Second Lien Mortgage
Loan, in either case, on the property described therein and the Seller has full
right to sell and assign the same to Purchaser;
(k) Validity of Mortgage Documents. The Mortgage Note and the
Mortgage and any other agreement executed and delivered by a Mortgagor in
connection with a Mortgage Loan are genuine, and each is the legal, valid and
binding obligation of the maker thereof enforceable in accordance with its terms
(including, without limitation, any provisions therein relating to Prepayment
Penalties), except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium or other similar laws relating to or
affecting the rights of creditors generally, and by general equity principles
(regardless of whether such enforcement is considered a proceeding in equity or
a law). All parties to the Mortgage Note, the Mortgage and any other such
related agreement had legal capacity to enter into the Mortgage Loan and to
execute and deliver the Mortgage Note, the Mortgage and any such agreement, and
the Mortgage Note, the Mortgage and any other such related agreement have been
duly and properly executed by other such related parties. The documents,
instruments and agreements submitted for loan underwriting were not falsified
and contain no untrue statement of material fact or omit to state a material
fact required to be stated therein or necessary to make the information and
statements therein not misleading. No fraud, error, omission, misrepresentation,
gross negligence or similar occurrence with respect to a Mortgage Loan has taken
place on the part of any Person, including without limitation, the Mortgagor,
any appraiser, any builder or developer, or any other party involved in the
origination or servicing of the Mortgage Loan. The Seller has reviewed all of
the documents constituting the Servicing File;
(l) Full Disbursement of Proceeds. The Mortgage Loan has been closed
and the proceeds of the Mortgage Loan have been fully disbursed and there is no
requirement for future advances thereunder, and any and all requirements as to
completion of any on-site or off-site improvement and as to disbursements of any
escrow funds therefor have been complied with. All costs, fees and expenses
incurred in making or closing the Mortgage Loan and the recording of the
Mortgage were paid, and the Mortgagor is not entitled to any refund of any
amounts paid or due under the Mortgage Note or Mortgage;
(m) Ownership. The Seller is the sole owner of record and holder of
the Mortgage Loan and the indebtedness evidenced by each Mortgage Note and upon
the sale of the Mortgage Loans to the Purchaser, the Seller will retain the
Mortgage Files or any part thereof not delivered to the Custodian, the Purchaser
or the Purchaser's designee, in trust only for the purpose of servicing and
supervising the servicing of each Mortgage Loan. The Mortgage Loan is not
assigned or pledged, and the Seller has good, indefeasible and marketable title
thereto, and has full right to transfer and sell the Mortgage Loan to the
Purchaser free and clear of any encumbrance, equity, participation interest,
lien, pledge, charge, claim or security interest, and has full right and
authority subject to no interest or participation of, or agreement with, any
other party, to sell and assign each Mortgage Loan pursuant to this Agreement
and following the sale of each Mortgage Loan, the Purchaser will own such
Mortgage Loan free and clear of any encumbrance, equity, participation interest,
lien, pledge, charge, claim or security interest. The Seller intends to
relinquish all rights to possess, control and monitor the Mortgage Loan. After
the related Closing Date, the Seller will have no right to modify or alter the
terms of the sale of the Mortgage Loan and the Seller will have no obligation or
right to repurchase the Mortgage Loan or substitute another Mortgage Loan,
except as provided in this Agreement;
(n) Doing Business. All parties which have had any interest in the
Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or,
during the period in which they held and disposed of such interest, were) (1) in
compliance with any and all applicable licensing requirements of the laws of the
state wherein the Mortgaged Property is located, and (2) either (i) organized
under the laws of such state, or (ii) qualified to do business in such state, or
(iii) a federal savings and loan association, a savings bank or a national bank
having a principal office in such state, or (3) not doing business in such
state;
(o) LTV. No Mortgage Loan has an LTV greater than 100%;
(p) Title Insurance. The Mortgage Loan is covered by an ALTA
lender's title insurance policy, or with respect to any Mortgage Loan for which
the related Mortgaged Property is located in California a CLTA lender's title
insurance policy, and each such title insurance policy is issued by a title
insurer and qualified to do business in the jurisdiction where the Mortgaged
Property is located, insuring the Seller, its successors and assigns, as to the
first or second priority lien, as applicable, of the Mortgage in the original
principal amount of the Mortgage Loan, subject only to the exceptions contained
in clauses (1), (2), (3) and (4) of paragraph (j) of this Subsection 9.02 and in
the case of Adjustable Rate Mortgage Loans, against any loss by reason of the
invalidity or unenforceability of the lien resulting from the provisions of the
Mortgage providing for adjustment to the Mortgage Interest Rate and Monthly
Payment. Where required by state law or regulation, the Mortgagor has been given
the opportunity to choose the carrier of the required mortgage title insurance.
Additionally, such lender's title insurance policy affirmatively insures ingress
and egress, and against encroachments by or upon the Mortgaged Property or any
interest therein. The title policy does not contain any special exceptions
(other than the standard exclusions) for zoning and uses and has been marked to
delete the standard survey exception or to replace the standard survey exception
with a specific survey reading. The Seller, its successor and assigns, are the
sole insureds of such lender's title insurance policy, and such lender's title
insurance policy is valid and remains in full force and effect and will be in
force and effect upon the consummation of the transactions contemplated by this
Agreement. No claims are pending under such lender's title insurance policy, and
no prior holder of the related Mortgage, including the Seller, has done, by act
or omission, anything which would impair the coverage of such lender's title
insurance policy, including without limitation, no unlawful fee, commission,
kickback or other unlawful compensation or value of any kind has been or will be
received, retained or realized by any attorney, firm or other person or entity,
and no such unlawful items have been received, retained or realized by the
Seller;
(q) No Defaults. Other than payment delinquencies of less than one
month, there is no default, breach, violation or event which would permit
acceleration existing under the Mortgage or the Mortgage Note and no event
which, with the passage of time or with notice and the expiration of any grace
or cure period, would constitute a default, breach, violation or event which
would permit acceleration, and neither the Seller nor any of its affiliates nor
any of their respective predecessors, have waived any default, breach, violation
or event which would permit acceleration. With respect to each Second Lien
Mortgage Loan, (i) the prior mortgage is in full force and effect, (ii) there is
no default, breach, violation or event of acceleration existing under such prior
mortgage or the related mortgage note, (iii) no event which, with the passage of
time or with notice and the expiration of any grace or cure period, would
constitute a default, breach, violation or event of acceleration thereunder, and
either (A) the prior mortgage contains a provision which allows or (B)
applicable law requires, the mortgagee under the Second Lien Mortgage Loan to
receive notice of, and affords such mortgagee an opportunity to cure any default
by payment in full or otherwise under the prior mortgage;
(r) No Mechanics' Liens. There are no mechanics' or similar liens or
claims which have been filed for work, labor or material (and no rights are
outstanding that under law could give rise to such liens) affecting the related
Mortgaged Property which are or may be liens prior to, or equal or coordinate
with, the lien of the related Mortgage;
(s) Location of Improvements; No Encroachments. All improvements
which were considered in determining the Appraised Value of the Mortgaged
Property lay wholly within the boundaries and building restriction lines of the
Mortgaged Property, and no improvements on adjoining properties encroach upon
the Mortgaged Property. No improvement located on or being part of the Mortgaged
Property is in violation of any applicable zoning law or regulation;
(t) Origination; Payment Terms. The Mortgage Loan was originated by
a mortgagee approved by the Secretary of Housing and Urban Development pursuant
to Sections 203 and 211 of the National Housing Act, savings and loan
association, a savings bank, a commercial bank, credit union, insurance company
or other similar institution which is supervised and examined by a federal or
state authority. The documents, instruments and agreements submitted for loan
underwriting were not falsified and contain no untrue statement of material fact
or omit to state a material fact required to be stated therein or necessary to
make the information and statements therein not misleading. No Mortgage Loan
contains terms or provisions which would result in negative amortization.
Principal payments on the Mortgage Loan commenced no more than sixty days after
funds were disbursed in connection with the Mortgage Loan. The Mortgage Interest
Rate as well as, in the case of Adjustable Rate Mortgage Loans, the Lifetime
Rate Cap and the Periodic Cap, are as set forth on the related Mortgage Loan
Schedule. Except with respect to interest-only mortgage loans set forth on the
related Mortgage Loan Schedule, the Mortgage Note is payable in equal monthly
installments of principal and interest, which installments of interest, with
respect to Adjustable Rate Mortgage Loans, are subject to change due to the
adjustments to the Mortgage Interest Rate on each Interest Rate Adjustment Date,
with interest calculated and payable in arrears, sufficient to amortize the
Mortgage Loan fully by the stated maturity date, over an original term of not
more than thirty years from commencement of amortization. There are no
Convertible Mortgage Loans which contain a provision allowing the Mortgagor to
convert the Mortgage Note from an adjustable interest rate Mortgage Note to a
fixed interest rate Mortgage Note. No Mortgage Loan is a simple interest
mortgage loan;
(u) Customary Provisions. The Mortgage contains customary and
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for the realization against the Mortgaged Property of the
benefits of the security provided thereby, including, (i) in the case of a
Mortgage designated as a deed of trust, by trustee's sale, and (ii) otherwise by
judicial foreclosure. Upon default by a Mortgagor on a Mortgage Loan and
foreclosure on, or trustee's sale of, the Mortgaged Property pursuant to the
proper procedures, the holder of the Mortgage Loan will be able to deliver good
and merchantable title to the Mortgaged Property. There is no homestead or other
exemption available to a Mortgagor which would interfere with the right to sell
the Mortgaged Property at a trustee's sale or the right to foreclose the
Mortgage, subject to applicable federal and state laws and judicial precedent
with respect to bankruptcy and right of redemption or similar law;
(v) Conformance with Underwriting Guidelines. The Mortgage Loan was
underwritten in accordance with the Underwriting Guidelines in effect as of the
date of origination of such Mortgage Loan (a copy of which is attached hereto as
Exhibit I). The Mortgage Note and Mortgage are on forms generally acceptable to
Freddie Mac or Xxxxxx Xxx and the Seller has not made any representations to a
Mortgagor that are inconsistent with the mortgage instruments used;
(w) Occupancy of the Mortgaged Property. As of the related Closing
Date the Mortgaged Property is lawfully occupied under applicable law. All
inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of the Mortgaged Property and, with respect to
the use and occupancy of the same, including but not limited to certificates of
occupancy and fire underwriting certificates, have been made or obtained from
the appropriate authorities;
(x) No Additional Collateral. The Mortgage Note is not and has not
been secured by any collateral except the lien of the corresponding Mortgage and
the security interest of any applicable security agreement or chattel mortgage
referred to in clause (j) above;
(y) Deeds of Trust. In the event the Mortgage constitutes a deed of
trust, a trustee, authorized and duly qualified under applicable law to serve as
such, has been properly designated and currently so serves and is named in the
Mortgage, and no fees or expenses are or will become payable by the Purchaser to
the trustee under the deed of trust, except in connection with a reconveyance of
the deed of trust or a trustee's sale after default by the Mortgagor;
(z) Delivery of Mortgage Documents. The Mortgage Note, the Mortgage,
the Assignment of Mortgage and any other documents required to be delivered
under the Custodial Agreement for each Mortgage Loan have been delivered to the
Custodian. The Seller is in possession of a complete, true and accurate Mortgage
File in compliance with Exhibit A hereto, except for such documents the
originals of which have been delivered to the Custodian;
(aa) Condominiums/Planned Unit Developments. If the Mortgaged
Property is a condominium unit or a planned unit development (other than a de
minimis planned unit development) such condominium or planned unit development
project is acceptable to Seller and underwritten in accordance with the
Underwriting Guidelines;
(bb) Transfer of Mortgage Loans. The Assignment of Mortgage with
respect to each Mortgage Loan is in recordable form and is acceptable for
recording under the laws of the jurisdiction in which the Mortgaged Property is
located. The transfer, assignment and conveyance of the Mortgage Notes and the
Mortgages by the Seller is not subject to the bulk transfer or similar statutory
provisions in effect in any applicable jurisdiction;
(cc) Due-On-Sale. The Mortgage contains an enforceable provision
(except as such enforcement may be effected by bankruptcy and insolvency laws or
by general principals of equity) for the acceleration of the payment of the
unpaid principal balance of the Mortgage Loan in the event that the Mortgaged
Property is sold or transferred without the prior written consent of the
mortgagee thereunder, and to the best of the Seller's knowledge, such provision
is enforceable;
(dd) Assumability. None of the Mortgage Loans are, by their terms,
assumable;
(ee) No Buydown Provisions; No Graduated Payments or Contingent
Interests. The Mortgage Loan does not contain provisions pursuant to which
Monthly Payments are paid or partially paid with funds deposited in any separate
account established by the Seller, the Mortgagor, or anyone on behalf of the
Mortgagor, or paid by any source other than the Mortgagor nor does it contain
any other similar provisions which may constitute a "buydown" provision. The
Mortgage Loan is not a graduated payment mortgage loan and the Mortgage Loan
does not have a shared appreciation or other contingent interest feature;
(ff) Consolidation of Future Advances. Any future advances made to
the Mortgagor prior to the related Cut-off Date have been consolidated with the
outstanding principal amount secured by the Mortgage, and the secured principal
amount, as consolidated, bears a single interest rate and single repayment term.
The lien of the Mortgage securing the consolidated principal amount is expressly
insured as having first or second lien priority, as applicable, by a title
insurance policy, an endorsement to the policy insuring the mortgagee's
consolidated interest or by other title evidence. The consolidated principal
amount does not exceed the original principal amount of the Mortgage Loan;
(gg) Mortgaged Property Undamaged; No Condemnation Proceedings.
There is no proceeding pending or threatened for the total or partial
condemnation of the Mortgaged Property. As of the related Closing Date, the
Mortgaged Property is undamaged by waste, fire, earthquake or earth movement,
windstorm, flood, tornado, hurricane or other casualty so as to affect adversely
the value of the Mortgaged Property as security for the Mortgage Loan or the use
for which the premises were intended and each Mortgaged Property is inhabitable
under applicable state and local laws;
(hh) Collection Practices; Escrow Deposits. The origination,
servicing and collection practices used by the Seller with respect to the
Mortgage Loan have been in all respects in compliance with Accepted Servicing
Practices, applicable laws and regulations, and have been in all respects legal
and proper and prudent in the mortgage origination and servicing business. With
respect to escrow deposits and Escrow Payments (other than with respect to
Second Lien Mortgage Loans for which the mortgagee under the prior mortgage lien
is collecting Escrow Payments), all such payments are in the possession of, or
under the control of, the Seller and there exist no deficiencies in connection
therewith for which customary arrangements for repayment thereof have not been
made. All Escrow Payments have been collected in full compliance with state and
federal law and the provisions of the related Mortgage Note and Mortgage. An
escrow of funds is not prohibited by applicable law and has been established in
an amount sufficient to pay for every item that remains unpaid and has been
assessed but is not yet due and payable. No escrow deposits or Escrow Payments
or other charges or payments due the Seller have been capitalized under the
Mortgage or the Mortgage Note. All Mortgage Interest Rate adjustments have been
made in strict compliance with state and federal law and the terms of the
related Mortgage and Mortgage Note on the related Interest Rate Adjustment Date.
If, pursuant to the terms of the Mortgage Note, another index was selected for
determining the Mortgage Interest Rate, the same index was used with respect to
each Mortgage Note which required a new index to be selected, and such selection
did not conflict with the terms of the related Mortgage Note. The Seller
executed and delivered any and all notices required under applicable law and the
terms of the related Mortgage Note and Mortgage regarding the Mortgage Interest
Rate and the Monthly Payment adjustments. Any interest required to be paid
pursuant to state, federal and local law has been properly paid and credited;
(ii) No Violation of Environmental Laws. To the best of the Seller's
knowledge, the Mortgaged Property is free from any and all toxic or hazardous
substances and there exists no violation of any local, state or federal
environmental law, rule or regulation. To the best of the Seller's knowledge,
there is no pending action or proceeding directly involving the Mortgaged
Property in which compliance with any environmental law, rule or regulation is
an issue; there is no violation of any environmental law, rule or regulation
with respect to the Mortgage Property; and nothing further remains to be done to
satisfy in full all requirements of each such law, rule or regulation
constituting a prerequisite to use and enjoyment of said property;
(jj) Servicemembers' Civil Relief Act. Except as disclosed to the
Purchaser on the related Mortgage Loan Schedule, the Mortgagor has not notified
the Seller, and the Seller has no knowledge of any relief requested or allowed
to the Mortgagor under the Servicemembers' Civil Relief Act;
(kk) Appraisal. The Mortgage File contains an appraisal of the
related Mortgaged Property signed prior to the approval of the Mortgage Loan
application by a qualified appraiser, duly appointed by the related originator,
who had no interest, direct or indirect in the Mortgaged Property or in any loan
made on the security thereof, and whose compensation is not affected by the
approval or disapproval of the Mortgage Loan, and the appraisal and appraiser
both satisfy the requirements of the Financial Institutions Reform, Recovery,
and Enforcement Act of 1989 and the regulations promulgated thereunder, all as
in effect on the date the Mortgage Loan was originated;
(ll) Disclosure Materials. The Mortgagor has received all disclosure
materials required by, and the Seller has complied with, all applicable law with
respect to the making of the Mortgage Loans;
(mm) Construction or Rehabilitation of Mortgaged Property. No
Mortgage Loan was made in connection with the construction or rehabilitation of
a Mortgaged Property or facilitating the trade-in or exchange of a Mortgaged
Property;
(nn) Value of Mortgaged Property. The Seller has no knowledge of any
circumstances existing that could reasonably be expected to adversely affect the
value or the marketability of any Mortgaged Property or Mortgage Loan or to
cause the Mortgage Loans to prepay during any period materially faster or slower
than similar mortgage loans originated to the same Underwriting Guidelines held
by the Seller generally secured by properties in the same geographic area as the
related Mortgaged Property;
(oo) No Defense to Insurance Coverage. The Seller has caused or will
cause to be performed any and all acts required to preserve the rights and
remedies of the Purchaser in any insurance policies applicable to the Mortgage
Loans including, without limitation, any necessary notifications of insurers,
assignments of policies or interests therein, and establishments of coinsured,
joint loss payee and mortgagee rights in favor of the Purchaser. No action has
been taken or failed to be taken, no event has occurred and no state of facts
exists or has existed on or prior to the related Closing Date (whether or not
known to the Seller on or prior to such date) which has resulted or will result
in an exclusion from, denial of, or defense to coverage under any applicable,
special hazard insurance policy, or bankruptcy bond (including, without
limitation, any exclusions, denials or defenses which would limit or reduce the
availability of the timely payment of the full amount of the loss otherwise due
thereunder to the insured) whether arising out of actions, representations,
errors, omissions, negligence, or fraud of the Seller, the related Mortgagor or
any party involved in the application for such coverage, including the
appraisal, plans and specifications and other exhibits or documents submitted
therewith to the insurer under such insurance policy, or for any other reason
under such coverage, but not including the failure of such insurer to pay by
reason of such insurer's breach of such insurance policy or such insurer's
financial inability to pay;
(pp) Escrow Analysis. With respect to each Mortgage with an Escrow
Account, the Seller has within the last twelve months (unless such Mortgage was
originated within such twelve month period) analyzed the required Escrow
Payments for each Mortgage and adjusted the amount of such payments so that,
assuming all required payments are timely made, any deficiency will be
eliminated on or before the first anniversary of such analysis, or any overage
will be refunded to the Mortgagor, in accordance with RESPA and any other
applicable law;
(qq) Prior Servicing. Each Mortgage Loan has been serviced in all
material respects in strict compliance with Accepted Servicing Practices and the
Seller has reported or caused to be reported, the Mortgagor credit files to each
of the three primary credit repositories monthly in a timely manner;
(rr) Leaseholds. If the Mortgage Loan is secured by a long-term
residential lease, (1) the lessor under the lease holds a fee simple interest in
the land; (2) the terms of such lease expressly permit the mortgaging of the
leasehold estate, the assignment of the lease without the lessor's consent and
the acquisition by the holder of the Mortgage of the rights of the lessee upon
foreclosure or assignment in lieu of foreclosure or provide the holder of the
Mortgage with substantially similar protections; (3) the terms of such lease do
not (a) allow the termination thereof upon the lessee's default without the
holder of the Mortgage being entitled to receive written notice of, and
opportunity to cure, such default, (b) allow the termination of the lease in the
event of damage or destruction as long as the Mortgage is in existence, (c)
prohibit the holder of the Mortgage from being insured (or receiving proceeds of
insurance) under the hazard insurance policy or policies relating to the
Mortgaged Property or (d) permit any increase in rent other than pre-established
increases set forth in the lease; (4) the original term of such lease is not
less than 15 years; (5) the term of such lease does not terminate earlier than
five years after the maturity date of the Mortgage Note; and (6) the Mortgaged
Property is located in a jurisdiction in which the use of leasehold estates in
transferring ownership in residential properties is a widely accepted practice;
(ss) Prepayment Penalty. The Mortgage Loan is subject to a
prepayment penalty as provided in the related Mortgage Note except as set forth
on the related Mortgage Loan Schedule. With respect to each Mortgage Loan that
has a prepayment penalty feature, each such prepayment penalty is enforceable
and will be enforced by the Interim Servicer for the benefit of the Purchaser,
and each prepayment penalty is permitted pursuant to federal, state and local
law. Each such prepayment penalty is in an amount not more than the maximum
amount permitted under applicable law and no such prepayment penalty may be
imposed for a term in excess of five (5) years with respect to Mortgage Loans
originated prior to October, 1, 2002. With respect to Mortgage Loans originated
on or after October 1, 2002, the duration of the prepayment period shall not
exceed three (3) years from the date of the Mortgage Note unless the Mortgage
Loan was modified to reduce the prepayment period to no more than three (3)
years from the date of such Mortgage Loan and the Mortgagor was notified in
writing of such reduction in prepayment period. With respect to any Mortgage
Loan that contains a provision permitting imposition of a premium upon a
prepayment prior to maturity: (i) prior to the Mortgage Loan's origination, the
Mortgagor agreed to such premium in exchange for a monetary benefit, including
but not limited to a rate or fee reduction, (ii) prior to the Mortgage Loan's
origination, the Mortgagor was offered the option of obtaining a mortgage loan
that did not require payment of such a premium and (iii) the prepayment premium
is disclosed to the Mortgagor in the loan documents pursuant to applicable
state, local and federal law. This representation and warranty is a Deemed
Material Breach Representation;
(tt) Predatory Lending Regulations. No Mortgage Loan is a High Cost
Loan or Covered Loan, as applicable, and no Mortgage Loan originated on or after
October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending
Act. No Mortgage Loan is covered by the Home Ownership and Equity Protection Act
of 1994 and no Mortgage Loan is in violation of any comparable state or local
law. The Mortgaged Property is not located in a jurisdiction where a breach of
this representation with respect to the related Mortgage Loan may result in
additional assignee liability to the Purchaser, as determined by Purchaser in
its reasonable discretion. No predatory or deceptive lending practices,
including, without limitation, the extension of credit without regard to the
ability of the Mortgagor to repay and the extension of credit which has no
apparent benefit to the Mortgagor, were employed in the origination of the
Mortgage Loan. Each Mortgage Loan is in compliance with the anti-predatory
lending eligibility for purchase requirements of Fannie Mae's Selling Guide.
This representation and warranty is a Deemed Material Breach Representation;
(uu) Single-premium Credit Life Insurance Policy. In connection with
the origination of any Mortgage Loan, no proceeds from any Mortgage Loan were
used to finance or acquire a single-premium credit life insurance policy. No
Mortgagor was required to purchase any single-premium credit insurance policy
(e.g., life, mortgage, disability, accident, unemployment, or health insurance
product) or debt cancellation agreement as a condition of obtaining the
extension of credit. No Mortgagor obtained a prepaid single-premium credit
insurance policy (e.g., life, mortgage, disability, accident, unemployment,
mortgage, or health insurance) in connection with the origination of the
Mortgage Loan; no proceeds from any Mortgage Loan were used to purchase
single-premium credit insurance policies or debt cancellation agreements as part
of the origination of, or as a condition to closing, such Mortgage Loan. This
representation and warranty is a Deemed Material Breach Representation;
(vv) Tax Service Contract; Flood Certification Contract. Each First
Lien Mortgage Loan is covered by a paid in full, life of loan, tax service
contract and a paid in full, life of loan, flood certification contract and each
of these contracts is assignable to the Purchaser;
(ww) Qualified Mortgage. The Mortgage Loan is an obligation
(including any participation or certificate of beneficial ownership therein)
which is principally secured by an interest in real property;
(xx) Regarding the Mortgagor. The Mortgagor is one or more natural
persons and/or trustees for an Illinois land trust;
(yy) Recordation. Each original Mortgage was recorded and, except
for those Mortgage Loans subject to the MERS identification system, all
subsequent assignments of the original Mortgage (other than the assignment to
the Purchaser) have been recorded in the appropriate jurisdictions wherein such
recordation is necessary to perfect the lien thereof as against creditors of the
Seller, or is in the process of being recorded;
(zz) Credit Scores. Unless set forth in the related Purchase Price
and Terms Agreement, each Mortgage Loan has a non-zero credit score. No Mortgage
Loan has a Mortgagor with a credit score of less than 500 as of the related
origination date;
(aaa) Compliance with Anti-Money Laundering Laws. The Seller has
complied with all applicable anti-money laundering laws and regulations,
including without limitation the USA Patriot Act of 2001 (collectively, the
"Anti-Money Laundering Laws"); to the extent applicable to the Seller as of the
related Closing Date, the Seller has established an anti-money laundering
compliance program as required by the Anti-Money Laundering Laws, has conducted
the requisite due diligence in connection with the origination of each Mortgage
Loan for purposes of the Anti-Money Laundering Laws, including with respect to
the legitimacy of the applicable Mortgagor and the origin of the assets used by
the said Mortgagor to purchase the property in question, and maintains, and will
maintain, sufficient information to identify the applicable Mortgagor for
purposes of the Anti-Money Laundering Laws;
(bbb) Origination Practices. No Mortgagor was encouraged or required
to select a Mortgage Loan product offered by the Mortgage Loan's originator
which is a higher cost product designed for less creditworthy borrowers, unless
at the time of the Mortgage Loan's origination, such Xxxxxxxxx did not qualify
taking into account credit history and debt-to-income ratios for a lower-cost
credit product then offered by the Mortgage Loan's originator or any affiliate
of the Mortgage Loan's originator. If, at the time of loan application, the
Mortgagor may have qualified for a lower-cost credit product then offered by any
mortgage lending affiliate of the Mortgage Loan's originator, the Mortgage
Loan's originator referred the Mortgagor's application to such affiliate for
underwriting consideration. This representation and warranty is a Deemed
Material Breach Representation;
(ccc) Underwriting Methodology. The methodology used in underwriting
the extension of credit for each Mortgage Loan employs, in part, objective
mathematical principles which relate the Mortgagor's income, assets and
liabilities to the proposed payment and such underwriting methodology does not
rely on the extent of the Mortgagor's equity in the collateral as the principal
determining factor in approving such credit extension. Such underwriting
methodology confirmed that at the time of origination (application/approval) the
Mortgagor had a reasonable ability to make timely payments on the Mortgage Loan.
This representation and warranty is a Deemed Material Breach Representation;
(ddd) Points and Fees. No Mortgagor was charged "points and fees"
(whether or not financed) in an amount greater than (i) $1,000, or (ii) 5% of
the principal amount of such Mortgage Loan, whichever is greater. For purposes
of this representation, such 5% limitation is calculated in accordance with
Fannie Mae's anti-predatory lending requirements as set forth in the Xxxxxx Xxx
Guides and "points and fees" (x) include origination, underwriting, broker and
finder fees and charges that the mortgagee imposed as a condition of making the
Mortgage Loan, whether they are paid to the mortgagee or a third party, and (y)
exclude bona fide discount points, fees paid for actual services rendered in
connection with the origination of the Mortgage Loan (such as attorneys' fees,
notaries fees and fees paid for property appraisals, credit reports, surveys,
title examinations and extracts, flood and tax certifications, and home
inspections), the cost of mortgage insurance or credit-risk price adjustments,
the costs of title, hazard, and flood insurance policies, state and local
transfer taxes or fees, escrow deposits for the future payment of taxes and
insurance premiums, and other miscellaneous fees and charges that, in total, do
not exceed 0.25% of the principal amount of such Mortgage Loan. This
representation and warranty is a Deemed Material Breach Representation;
(eee) Fees Charges. All fees and charges (including finance charges)
and whether or not financed, assessed, collected or to be collected in
connection with the origination and servicing of each Mortgage Loan has been
disclosed in writing to the Mortgagor in accordance with applicable state and
federal law and regulation. This representation and warranty is a Deemed
Material Breach Representation;
(fff) [Reserved]
(ggg) Xxxxxx Xxx Mortgage Loans. With respect to each Mortgage Loan
which the Seller indicates is a Xxxxxx Xxx eligible mortgage loan, the
representations set forth on Exhibit M are true and correct.
(hhh) Litigation. As of the related Closing Date, the Mortgage Loan
is not subject to any outstanding litigation for fraud, origination, predatory
lending, servicing or closing practices;
(iii) MERS Designations. With respect to each MERS Designated
Mortgage Loan, the Seller has designated the Custodian as the Investor and no
Person is listed as Interim Funder on the MERS(R) System;
(jjj) Owner of Record. The Seller is the owner of record of each
Mortgage and the indebtedness evidenced by each Mortgage Note, except for the
Assignments of Mortgage which have been sent for recording, and upon recordation
the Seller will be the owner of record of each Mortgage and the indebtedness
evidenced by each Mortgage Note, and upon the sale of the Mortgage Loans to the
Purchaser, the Seller will retain the Mortgage Files with respect thereto in
trust only for the purpose of servicing and supervising the servicing of each
Mortgage Loan.
(kkk) Reports. On or prior to the related Closing Date, the Seller
has provided the Custodian and the Purchaser with a MERS Report listing the
Custodian as the Investor with respect to each MERS Designated Mortgage Loan.
(lll) Payoffs. No Mortgage Loans prepaid in full prior to the
related Closing Date.
(mmm) Credit Information. As to each consumer report (as defined in
the Fair Credit Reporting Act, Public Law 91-508) or other credit information
furnished by the Seller to the Purchaser, that Seller has full right and
authority and is not precluded by law or contract from furnishing such
information to the Purchaser and the Purchaser is not precluded by the terms of
the Mortgage Loan Documents from furnishing the same to any subsequent or
prospective purchaser of such Mortgage. The Seller shall hold the Purchaser
harmless from any and all damages, losses, costs and expenses (including
attorney's fees) arising from disclosure of credit information in connection
with the Purchaser's secondary marketing operations and the purchase and sale of
mortgages. The Seller has in its capacity as servicer, for each Mortgage Loan,
fully furnished, in accordance with the Fair Credit Reporting Act and its
implementing regulations, accurate and complete information (e.g., favorable and
unfavorable) on its borrower credit files to Equifax, Experian and Trans Union
Credit Information Company (three of the credit repositories), on a monthly
basis. This representation and warranty is a Deemed Material Breach
Representation;
(nnn) Origination Practices. Each Mortgagor was assigned the highest
credit grade available with respect to a mortgage loan product offered by such
Mortgage Loan's originator, taking into account the credit history, debt to
income ratio and loan requirement of such Mortgagor;
(ooo) Arbitration. With respect to any Mortgage Loan originated on
or after August 1, 2004, neither the related Mortgage nor the related Mortgage
Note requires the Mortgagor to submit to arbitration to resolve any dispute
arising out of or relating in any way to the Mortgage Loan transaction. This
representation and warranty is a Deemed Material Breach Representation;
(ppp) Consent. Either (a) no consent for the Second Lien Mortgage
Loan is required by the holder of the related first lien or (b) such consent has
been obtained and is contained in the Mortgage File; and
(qqq) Second Lien Mortgage Loans. With respect to each Second Lien
Mortgage Loan: (1) the related first lien Mortgage Loan does not permit negative
amortization; (2) where required or customary in the jurisdiction in which the
Mortgaged Property is located, the original lender has filed for record a
request for notice of any action by the related senior lienholder, and the
Seller has notified such second lienholder in writing of the existence of the
Second Lien Mortgage Loan and requested notification of any action to be taken
against the Mortgagor by such senior lienholder; either (a) no consent for the
Second Lien Mortgage Loan is required by the holder of the related first lien
Mortgage Loan or (b) such consent has been obtained and is contained in the
related Mortgage File; (3) to the best of Seller's knowledge, the related first
lien Mortgage Loan is in full force and effect, and there is no default, lien,
breach, violation or event which would permit acceleration existing under such
first lien Mortgage Loan or Mortgage Note, and no event which, with the passage
of time or with notice and the expiration of any grace or cure period, would
constitute a default, breach, violation or event which would permit acceleration
under such first lien Mortgage Loan; (4) the related first lien Mortgage
contains a provision which provide for giving notice of default or breach to the
mortgagee under the Mortgage Loan and allows such mortgagee to cure any default
under the related first lien Mortgage; and (5) the related Mortgaged Property
was the Mortgagor's principal residence at the time of the origination of the
such Second Lien Mortgage Loan. This representation and warranty is a Deemed
Material Breach Representation.
Subsection 9.03. Remedies for Breach of Representations and
Warranties.
It is understood and agreed that the representations and warranties
set forth in Subsections 9.01 and 9.02 shall survive the sale of the Mortgage
Loans to the Purchaser and shall inure to the benefit of the Purchaser, its
successors and assigns and the Successor Servicer, notwithstanding any
restrictive or qualified endorsement on any Mortgage Note or Assignment of
Mortgage or the examination or failure to examine any Mortgage File. Upon
discovery by the Seller or the Purchaser of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the other.
Within 60 days of the earlier of either discovery by or notice to
the Seller of any breach of a representation or warranty which materially and
adversely affects the value of the Mortgage Loans or the interest of the
Purchaser therein (or which materially and adversely affects the value of the
applicable Mortgage Loan or the interest of the Purchaser therein in the case of
a representation and warranty relating to a particular Mortgage Loan);
(provided, with respect to any representations and warranties which are made to
the best of the Seller's knowledge, if it is discovered by the Seller or the
Purchaser that the substance of such representation and warranty is inaccurate
and such inaccuracy materially and adversely affects the value of the related
Mortgage Loan or the interest of the Purchaser or which materially and adversely
affects the value of a Mortgage Loan or the interests of the Purchaser in the
related Mortgage Loan in the case of a representation and warranty relating to a
particular Mortgage Loan), notwithstanding the Seller's lack of knowledge with
respect to the substance of such representation and warranty, such inaccuracy
shall be deemed a breach of the applicable representation and warranty) (a "Loan
In Breach"), the Seller shall use its best efforts promptly to cure such breach
in all material respects and, if such breach cannot be cured, the Seller shall,
at the Purchaser's option, repurchase such Mortgage Loan at the Repurchase
Price, together with all expenses incurred by the Purchaser as a result of such
repurchase. Notwithstanding the above sentence, (i) within sixty (60) days of
the earlier of either discovery by, or notice to, the Seller of any breach of
the representation and warranty set forth in clause (ww) of Subsection 9.02, the
Seller shall repurchase such Mortgage Loan at the Repurchase Price, together
with all expenses incurred by the Purchaser as a result of such repurchase and
(ii) any breach of a Deemed Material Breach Representation shall automatically
be deemed to materially and adversely affect the value of the Mortgage Loan and
the interest of the Purchaser therein. In the event that a Loan in Breach shall
involve any representation or warranty set forth in Subsection 9.01, and such
breach cannot be cured within 60 days of the earlier of either discovery by or
notice to the Seller of such breach, all of the Mortgage Loans shall, at the
Purchaser's option, be repurchased by the Seller at the Repurchase Price.
However, if the breach shall involve a representation or warranty
set forth in Subsections 9.02 or 9.08 (other than the representations and
warranties set forth in clauses (ww) of Subsection 9.02 or any Deemed Material
Breach Representation) and the Seller discovers or receives notice of any such
breach within one hundred twenty (120) days of the related Closing Date, the
Seller shall, at the Purchaser's option and provided that the Seller has a
Qualified Substitute Mortgage Loan, rather than repurchase the Mortgage Loan as
provided above, remove such Mortgage Loan (a "Deleted Mortgage Loan") and
substitute in its place a Qualified Substitute Mortgage Loan or Loans, provided
that any such substitution shall be effected not later than one hundred twenty
(120) days after the related Closing Date. If the Seller has no Qualified
Substitute Mortgage Loan, the Seller shall repurchase the deficient Mortgage
Loan. Any repurchase of a Mortgage Loan or Loans pursuant to the foregoing
provisions of this Subsection 9.04 shall be accomplished by either (a) if the
Interim Servicing Agreement has been entered into and is in effect, deposit in
the Custodial Account of the amount of the Repurchase Price for distribution to
the Purchaser on the next scheduled Remittance Date, after deducting therefrom
any amount received in respect of such repurchased Mortgage Loan or Loans and
being held in the Custodial Account for future distribution or (b) if the
Interim Servicing Agreement is no longer in effect, by direct remittance of the
Repurchase Price to the Purchaser or its designee in accordance with the
Purchaser's instructions.
At the time of repurchase or substitution, the Purchaser and the
Seller shall arrange for the reassignment of the Deleted Mortgage Loan to the
Seller and the delivery to the Seller of any documents held by the Custodian
relating to the Deleted Mortgage Loan. In the event of a repurchase or
substitution, the Seller shall, simultaneously with such reassignment, give
written notice to the Purchaser that such repurchase or substitution has taken
place, amend the related Mortgage Loan Schedule to reflect the withdrawal of the
Deleted Mortgage Loan from this Agreement, and, in the case of substitution,
identify a Qualified Substitute Mortgage Loan and amend the related Mortgage
Loan Schedule to reflect the addition of such Qualified Substitute Mortgage Loan
to this Agreement. In connection with any such substitution, the Seller shall be
deemed to have made as to such Qualified Substitute Mortgage Loan the
representations and warranties set forth in this Agreement except that all such
representations and warranties set forth in this Agreement shall be deemed made
as of the date of such substitution, whether or not such substitution date is
after the related Transfer Date. The Seller shall effect such substitution by
delivering to the Custodian or to such other party as the Purchaser may
designate in writing for such Qualified Substitute Mortgage Loan the documents
required by Subsection 6.03 and the Custodial Agreement, with the Mortgage Note
endorsed as required by Subsection 6.03 and the Custodial Agreement. No
substitution will be made in any calendar month after the initial Determination
Date for such month. The Seller shall remit directly to the Purchaser, or its
designee in accordance with the Purchaser's instructions the Monthly Payment
less the Servicing Fee due, if any, on such Qualified Substitute Mortgage Loan
or Loans in the month following the date of such substitution. Monthly Payments
due with respect to Qualified Substitute Mortgage Loans in the month of
substitution shall be retained by the Seller. For the month of substitution,
distributions to the Purchaser shall include the Monthly Payment due on any
Deleted Mortgage Loan in the month of substitution, and the Seller shall
thereafter be entitled to retain all amounts subsequently received by the Seller
in respect of such Deleted Mortgage Loan.
For any month in which the Seller substitutes a Qualified Substitute
Mortgage Loan for a Deleted Mortgage Loan, the Seller shall determine the amount
(if any) by which the aggregate principal balance of all Qualified Substitute
Mortgage Loans as of the date of substitution is less than the aggregate Stated
Principal Balance of all Deleted Mortgage Loans (after application of scheduled
principal payments due in the month of substitution). The amount of such
shortfall shall be distributed by the Seller directly to the Purchaser or its
designee in accordance with the Purchaser's instructions within two (2) Business
Days of such substitution.
In addition to such repurchase or substitution obligation, the
Seller shall indemnify the Purchaser, its successors and assigns and the
Successor Servicer and hold it harmless against any losses, damages, penalties,
fines, forfeitures, reasonable and necessary legal fees and related costs,
judgments, and other reasonable costs and expenses resulting from any claim,
demand, defense or assertion based on or grounded upon, or resulting from, a
breach of the Seller's representations and warranties contained in this
Agreement or any Transaction Agreement. It is understood and agreed that the
obligations of the Seller set forth in this Subsection 9.03 to cure, substitute
for or repurchase a defective Mortgage Loan and to indemnify the Purchaser, its
successors and assigns and the Successor Servicer as provided in this Subsection
9.03 constitute the sole remedies of the Purchaser and the Successor Servicer
respecting a breach of the foregoing representations and warranties. For
purposes of this paragraph, "Purchaser" shall mean the Person then acting as the
Purchaser under this Agreement and any and all Persons who previously were
"Purchasers" under this Agreement and "Successor Servicer" shall mean the Person
then acting as the Successor Servicer under this Agreement and any and all
Persons who previously were "Successor Servicers" under this Agreement.
Upon the request of the Purchaser, the Seller hereby agrees to
execute a recognition agreement in the form of Exhibit L hereto recognizing the
servicer designated by the Purchaser therein as the Successor Servicer.
Any cause of action against the Seller relating to or arising out of
the breach of any representations and warranties made in Subsections 9.01, 9.02
or 9.08 shall accrue as to any Mortgage Loan upon (i) discovery of such breach
by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure
by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a
Qualified Substitute Mortgage Loan as specified above, and (iii) demand upon the
Seller by the Purchaser for compliance with this Agreement.
Subsection 9.04. Repurchase of Mortgage Loans With First Payment
Defaults.
With respect to any Mortgage Loan, if the related Mortgagor fails to
make the first Monthly Payment to be made by the Mortgagor after the related
Closing Date before the Due Date immediately following such initial Due Date
(such date, the "First Payment Default Date", such failure to pay, a "First
Payment Default"), the Seller shall, within five Business Days of receipt of
notice from the Purchaser, promptly repurchase such Mortgage Loan (a "First
Payment Default Mortgage Loan") from the Purchaser at the Purchase Price plus
accrued interest thereon at the Mortgage Interest Rate from the date on which
interest had last been paid through the date of such repurchase, plus the amount
of any outstanding advances owed to any servicer, plus all costs and expenses
incurred by the Purchaser or any servicer arising out of or based upon such
breach, including, without limitation, costs and expenses incurred in the
enforcement of the Seller's repurchase obligation hereunder. The Purchaser shall
request repurchase of any Mortgage Loans to be repurchased pursuant to this
Subsection 9.04 on or before the date which is thirty (30) days after the
related First Payment Default Date.
Subsection 9.05. Purchaser's Right to Review.
Prior to the related Closing Date, the Purchaser shall have the
right to perform on-site due diligence at the premises of the Seller with
respect to the Mortgage Loans. The Seller will provide information and otherwise
cooperate with the due diligence reviews of the Purchaser, its co-investor's,
its financial partner's, and the rating agencies. The Seller shall make the
Mortgage Files and the Credit Files, together with any payment histories,
collection histories, bankruptcy histories, broker's price opinions, and any
other information with respect to the Mortgage Loans requested by the Purchaser,
available at the Seller's offices for review by Purchaser or its agents during
normal business hours before the related Closing Date. The Purchaser shall have
the right, at its own expense, to order additional broker's price opinions in
its sole discretion.
The Purchaser shall have the right to reject any Mortgage Loan (a)
for which the Mortgage File documentation is missing or defective in whole or in
part, (b) for which (i) the related broker's price opinion is more than 15%
below the appraisal provided in connection with the origination of the related
Mortgage Loan (or such other threshold as set forth in the related Purchase
Price and Terms Agreement), (c) which does not conform to the Seller's
Underwriting Guidelines or compliance guidelines, (d) which does not conform to
the terms of the related Purchase Price and Terms Agreement or is in breach of
the representations and warranties set forth herein, or (e) for which the credit
or compliance characteristics are unacceptable to the Purchaser.
Notwithstanding the foregoing, the Purchaser may purchase all or
part of the Mortgage Loans without conducting any partial or complete due
diligence examination. The fact that the Purchaser has conducted or failed to
conduct any partial or complete examination of the files shall not affect the
Purchaser's (or any of its successor's) rights to demand repurchase or other
relief for breach of Mortgage Loan representations and warranties, missing or
defective documents or as otherwise provided in this Agreement.
SECTION 10. Closing.
Each closing for the purchase and sale of the Mortgage Loans shall
take place on the related Closing Date. At the Purchaser's option, each closing
shall be either: by telephone, confirmed by letter or wire as the parties shall
agree, or conducted in person, at such place as the parties shall agree.
The closing for the Mortgage Loans to be purchased on each Closing
Date shall be subject to each of the following conditions:
(i) prior to the related Closing Date, the Seller shall deliver to
the Purchaser via electronic medium acceptable to the
Purchaser, a listing on a loan-level basis of the necessary
information to compute the Purchase Price of the Mortgage
Loans delivered on the related Closing Date (including accrued
interest), and prepare a Mortgage Loan Schedule;
(ii) all of the representations and warranties of the Seller under
this Agreement and the Interim Servicing Agreement shall be
true and correct as of the related Closing Date and no event
shall have occurred which, with notice or the passage of time,
would constitute a default under this Agreement;
(iii) the Purchaser shall have received, or the Purchaser's
attorneys shall have received in escrow, all closing documents
as specified in Section 11 of this Agreement, in such forms as
are agreed upon and acceptable to the Purchaser, duly executed
by all signatories other than the Purchaser as required
pursuant to the terms hereof;
(iv) the Seller shall have delivered and released to the Custodian
all documents required pursuant to the Custodial Agreement;
and
(v) all other terms and conditions of this Agreement and the
related Purchase Price and Terms Agreement shall have been
complied with.
Subject to the foregoing conditions, the Purchaser shall pay to the
Seller on the related Closing Date the Purchase Price, plus accrued interest
pursuant to Section 4 of this Agreement, by wire transfer of immediately
available funds to the account designated by the Seller.
SECTION 11. Closing Documents.
The Closing Documents for the Mortgage Loans to be purchased on the
initial Closing Date shall consist of fully executed originals of the following
documents:
1. this Agreement;
2. the Interim Servicing Agreement;
3. the Custodial Agreement;
4. an Officer's Certificate, in the form of Exhibit E hereto with respect to
the Seller, including all attachments thereto;
5. an Opinion of Counsel of the Seller (who may be an employee of the
Seller), in form and substance acceptable to the Purchaser ("Opinion of
Counsel of the Seller");
6. a Custodial Account Letter Agreement or a Custodial Account Certification,
as applicable, as required under the Interim Servicing Agreement;
7. an Escrow Account Letter Agreement or an Escrow Account Certification, as
applicable, as required under the Interim Servicing Agreement;
8. an Opinion of Counsel of the Custodian (who may be an employee of the
Custodian), in the form of an exhibit to the Custodial Agreement;
9. a certificate or other evidence of merger or change of name, signed or
stamped by the applicable regulatory authority, if any of the Mortgage
Loans were acquired by the related Seller by merger or acquired or
originated by the Seller while conducting business under a name other than
its present name, if applicable; and
The Closing Documents to be delivered on each Closing Date shall
consist of fully executed originals of the following documents:
1. an Assignment and Conveyance in the form of Exhibit I hereto, including
all exhibits;
2. the related Mortgage Loan Schedule, with one copy to be attached to the
related Assignment and Conveyance;
3. the initial certification of the Custodian with respect to the related
Mortgage Loan Package as required under the Custodial Agreement in the
form of Exhibit 2 thereto;
4. a Security Release Certification, substantially in the form of Exhibit E
or F, hereto executed by any person, as requested by the Purchaser, if any
of the Mortgage Loans have at any time been subject to any security
interest, pledge or hypothecation for the benefit of such person;
5. a certificate or other evidence of merger or change of name, signed or
stamped by the applicable regulatory authority, if any of the Mortgage
Loans were acquired by the Seller by merger or acquired or originated by
the Seller while conducting business under a name other than its present
name, if applicable; and
6. if requested, by the Purchaser in connection with a material change in
Seller's financial condition or corporate structure, an updated Officer's
Certificate, in the form of Exhibit E hereto, including all attachments
thereto and an updated Opinion of Counsel of the Seller, in the form of
Exhibit F hereto.
7. a MERS Report reflecting the Custodian as Investor and no Person as
Interim Funder for each MERS Designated Mortgage Loan.
The Seller shall bear the risk of loss of the closing documents
until such time as they are received by the Purchaser or its attorneys.
SECTION 12. Costs.
The Purchaser shall pay its due diligence fees and the fees and
expenses of its counsel. All servicing fees incurred prior to the related
Closing Date, and all costs and expenses incurred in connection with the
transfer of the Mortgage Loans, fees to transfer files and prepare
assignments/endorsements, all initial recording fees, if any, for the
assignments of mortgage for all Mortgage Loans not recorded in the name of MERS,
all fees, if any, for transferring record ownership on the MERS system of
Mortgage Loans recorded in the name of MERS, custodial fees, including the costs
associated with clearing exceptions, (including costs to record intervening
assignments and any existing assumption and modification agreements), together
with the fees and expenses of Seller's counsel, shall be payable by the Seller.
SECTION 13. Cooperation of Seller with a Reconstitution.
The Seller and the Purchaser agree that with respect to some or all
of the Mortgage Loans, after the related Closing Date, on one or more dates
(each a "Reconstitution Date") at the Purchaser's sole option, the Purchaser may
effect a sale (each, a "Reconstitution") of some or all of the Mortgage Loans
then subject to this Agreement, without recourse, to:
(i) one or more third party purchasers in one or more Whole Loan
Transfers; or
(ii) one or more trusts or other entities to be formed as part of
one or more Securitization Transactions;
With respect to each Whole Loan Transfer and each Securitization
Transaction entered into by the Purchaser, the Seller agrees (1) to cooperate
fully with the Purchaser and any prospective purchaser with respect to all
reasonable requests and due diligence procedures; (2) to restate the
representations and warranties set forth in this Agreement and the Interim
Servicing Agreement as of the related Reconstitution Date, provided, that with
respect to representations and warranties for which modifications may be
necessary to reflect changes due to events that may have occurred since the
related Closing Date, such representations and warranties shall be restated as
of the related Transfer Date, modified, if necessary, to reflect changes due to
events that may have occurred from the related Closing Date through the related
Transfer Date and (3) to enter into an assignment and recognition agreement or
other agreement in connection with such Transaction (the "Transaction
Agreement") setting forth such restated representations and warranties as of the
related Transfer Date and the remedies for breach of same (which remedies will
be the same as those set forth in this Agreement). The Seller shall use its
reasonable best efforts to assist the Purchaser, and any prospective purchaser,
if the Purchaser or such prospective purchaser so requests, in connection with
each Transaction, which assistance shall include, but not be limited to, (i)
providing any information relating to the Mortgage Loans necessary to assist in
the preparation of any disclosure documents, (ii) restating as of the related
Transfer Date, for the benefit of the Purchaser, its assignees and the Successor
Servicer, the same representations and warranties as to the Mortgage Loans as
set forth in clause (2) above, and (iii) delivering an opinion of counsel (which
may be from in-house counsel) in form and substance satisfactory to the
Purchaser if requested by the Purchaser, provided that any opinion required of
outside counsel with respect to Rule 10B-5 shall be at the expense of Purchaser
which shall not exceed $2,500. The Seller agrees to enter into (a) an
assignment, assumption and recognition agreement pursuant to which the Seller
assigns the restated representations and warranties and remedies to the
Transaction. If a Transaction occurs during an Interim Period, the Seller agrees
to enter into a sub-servicing agreement with the Purchaser and the related
successor servicer mutually acceptable to the parties. Any such sub-servicing
agreement shall require the Seller to deliver (but not file) all necessary
Xxxxxxxx-Xxxxx certifications with respect to the Mortgage Loans mutually
acceptable to the parties. Moreover, the Seller agrees to cooperate with all
reasonable requests made by the Purchaser to effect such Transaction Agreements
and Reconstitutions. The Seller shall indemnify the Purchaser, each Affiliate
designated by the Purchaser, each Person who controls the Purchaser or such
Affiliate, and any Successor Servicer and hold each of them harmless from and
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments, and any other reasonable
costs, fees and expenses that each of them may sustain in any way related to any
information provided by or on behalf of the Seller regarding the Seller, the
Seller's servicing practices or performance, the Mortgage Loans or the
Underwriting Guidelines set forth in any offering document prepared in
connection with any Reconstitution which contains or will contain any material
untrue statement of fact or omits or will omit to state a fact necessary to make
the statements contained herein or therein not misleading. For purposes of the
previous sentence, "Purchaser" shall mean the Person then acting as the
Purchaser under this Agreement and any and all Persons who previously were
"Purchasers" under this Agreement.
In the event the Purchaser has elected to have the Seller hold
record title to the Mortgages, prior to the Reconstitution Date, the Seller
shall prepare an assignment of mortgage in blank or to the prospective purchaser
or trustee, as applicable, from the Seller, acceptable to the prospective
purchaser or trustee, as applicable, for each Mortgage Loan that is part of the
Reconstitution and shall pay all preparation and recording costs associated
therewith. In connection with the Reconstitution, the Seller shall execute each
Assignment of Mortgage, (except with respect to each MERS Designated Mortgage
Loan), track such Assignments of Mortgage to ensure they have been recorded and
deliver them as required by the prospective purchaser or trustee, as applicable,
upon the Seller's receipt thereof. Additionally, the Seller shall prepare and
execute, at the direction of the Purchaser, any note endorsement in connection
with any and all seller/servicer agreements.
All Mortgage Loans not sold or transferred pursuant to a
Reconstitution shall remain subject to this Agreement and, if the Interim
Servicing Agreement shall remain in effect with respect to the Mortgage Loans,
shall continue to be serviced in accordance with the terms of this Agreement and
the Interim Servicing Agreement and with respect thereto this Agreement shall
remain in full force and effect.
SECTION 14. The Seller.
Subsection 14.01. Additional Indemnification by the Seller; Third
Party Claims.
The Seller shall indemnify the Purchaser and the Successor Servicer
and hold it harmless against any and all claims, losses, damages, penalties,
fines, forfeitures, legal fees (including (without limitation) legal fees
incurred in connection with the enforcement of the Seller's indemnification
obligation under this Subsection 14.01) and related costs, judgments, and any
other reasonable costs, fees and expenses that the Purchaser or the Successor
Servicer have incurred as a result of (a) the failure of the Seller to perform
its duties under this Agreement or (b) any breach of any of Seller's
representations, warranties or covenants set forth in this Agreement, (c) any
failure to service the Mortgage Loans in strict compliance with the terms of the
Interim Servicing Agreement or (d) any breach of any of Seller's
representations, warranties or covenants set forth in Transaction Agreement
entered into pursuant to Section 13. The Seller immediately shall notify the
Purchaser if a claim is made by a third party against the Seller with respect to
this Agreement or any Transaction Agreement or the Mortgage Loans, assume (with
the prior written consent of the Purchaser) the defense (provided, that if the
Purchaser does not consent, the Purchaser shall assume the defense) of any such
claim and pay all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or the Purchaser in respect of such claim.
With respect to any third party claim or defense which Purchaser is
defending which relates to an allegation that Seller failed to originate or
service a Mortgage Loan in accordance with any federal, state or local law, in
the event that the Seller does not possess, and/or fails to deliver to the
Purchaser upon demand, evidence of Seller's compliance with all such
requirements of applicable law, Seller shall (a) repurchase such Mortgage Loan
at the Repurchase Price and (b) indemnify the Purchaser for all expenses in
connection with the Purchaser's defense of such claim, including legal fees, and
(c) assume the defense of any such claim and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against it or the Purchaser in respect
of such claim.
The Purchaser promptly shall reimburse the Seller for all reasonable
amounts advanced by it pursuant to the preceding paragraphs, except when the
claim is in any way related to the Servicer's indemnification pursuant to
Section 9.04, this Section 14.01 or the Interim Servicing Agreement, or is in
any way related to the failure of the Seller to service and administer the
Mortgage Loans in strict compliance with the terms of this Agreement or any
Transaction Agreement.
Subsection 14.02. Purchaser Indemnification
The Purchaser shall indemnify and hold harmless Seller and its
directors, officers, partners and each Person, if any, that controls Seller,
within the meaning of either the Securities Act or the Exchange Act, against any
and all losses, claims, damages, penalties, fines, forfeitures or liabilities to
which Seller or any such director, officer, partner or controlling Person may
become subject, under the Securities Act, the Exchange Act or otherwise, to the
extent that such losses, claims, damages, penalties, fines, forfeitures or
liabilities (or actions in respect thereof) arise out of the servicing of the
Mortgage Loans by a successor servicer, out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any
offering document prepared in connection with any Reconstitution or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, but only to the extent
that such untrue statement or alleged untrue statement or omission or alleged
omission relates to information set forth in any information provided by the
Purchaser set forth in any offering document prepared in connection with any
Reconstitution, and the Purchaser shall in each case reimburse Seller and each
such director, officer, partner or controlling Person for any legal or other
expenses reasonably incurred by Seller, and each such director, officer or
controlling Person, in connection with investigating or defending any such loss,
claim, damage, liability, penalties, fines, forfeitures or action, as such
expenses are incurred.
Subsection 14.03..Merger or Consolidation of the Seller
The Seller will keep in full effect its existence, rights and
franchises as a corporation under the laws of the state of its formation except
as permitted herein, and will obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its duties under this Agreement.
Any Person into which the Seller may be merged or consolidated, or
any entity resulting from any merger, conversion or consolidation to which the
Seller shall be a party, or any Person succeeding to the business of the Seller,
shall be the successor of the Seller hereunder, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided, however, that the
successor or surviving Person shall have a net worth of at least $25,000,000.
SECTION 15. Financial Statements.
Financial information regarding the Seller may be provided to
prospective purchasers for a period of three (3) years following the related
Closing Date; provided, however, that such information will be limited to the
audited financial statements of the Seller for the three (3) years preceding
such disclosure; and such information may only be provided if the prospective
purchaser has executed a written confidentiality agreement, addressed to the
Seller, stating that all non-public information will be used only for the
purposes of evaluating the proposed investment and that the prospective
purchaser has required such information as integral to its decision-making
process. Copies of any such confidentiality agreements must be delivered by the
Purchaser to the Seller within five (5) Business Days of receipt thereof by the
Purchaser.
The Seller also agrees to allow reasonable access to a knowledgeable
financial or accounting officer for the purpose of answering questions asked by
any prospective purchaser regarding recent developments affecting the Seller or
the financial statements of the Seller.
SECTION 16. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed, by registered or
certified mail, return receipt requested, or, if by other means, when received
by the other party at the address as follows:
(i) if to a Seller:
Fremont Investment & Loan
0000 Xxxx Xxxxxxxx Xxxxxxx
Xxxx, XX 00000
Attention: Senior Vice President-Finance
(ii) if to the Purchaser:
Xxxxxxx Xxxxx Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
or such other address as may hereafter be furnished to the other party by like
notice. Any such demand, notice or communication hereunder shall be deemed to
have been received on the date delivered to or received at the premises of the
addressee (as evidenced, in the case of registered or certified mail, by the
date noted on the return receipt).
SECTION 17. Severability Clause.
Any part, provision representation or warranty of this Agreement
which is prohibited or unenforceable or is held to be void or unenforceable in
any jurisdiction shall be ineffective, as to such jurisdiction, to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof. If the invalidity of any
part, provision, representation or warranty of this Agreement shall deprive any
party of the economic benefit intended to be conferred by this Agreement, the
parties shall negotiate, in good-faith, to develop a structure the economic
effect of which is nearly as possible the same as the economic effect of this
Agreement without regard to such invalidity.
SECTION 18. Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
SECTION 19. Governing Law.
This Agreement shall be deemed in effect when a fully executed
counterpart thereof is received by the Purchaser in the State of New York and
shall be deemed to have been made in the State of New York. The Agreement shall
be construed in accordance with the laws of the State of New York and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with the substantive laws of the State of New York (without regard to
conflicts of laws principles), except to the extent preempted by Federal law.
SECTION 20. Intention of the Parties.
It is the intention of the parties that the Purchaser is purchasing,
and the Seller is selling the Mortgage Loans and not a debt instrument of the
Seller or another security. Accordingly, the parties hereto each intend to treat
the transaction for Federal income tax purposes as a sale by the Seller, and a
purchase by the Purchaser, of the Mortgage Loans. Moreover, the arrangement
under which the Mortgage Loans are held shall be consistent with classification
of such arrangement as a grantor trust in the event it is not found to represent
direct ownership of the Mortgage Loans. The Purchaser shall have the right to
review the Mortgage Loans and the related Mortgage Loan Files to determine the
characteristics of the Mortgage Loans which shall affect the Federal income tax
consequences of owning the Mortgage Loans and the Seller shall cooperate with
all reasonable requests made by the Purchaser in the course of such review.
SECTION 21. Successors and Assigns; Assignment of Purchase
Agreement.
This Agreement shall bind and inure to the benefit of and be
enforceable by the Seller and the Purchaser and the respective permitted
successors and assigns of the Seller and the successors and assigns of the
Purchaser. This Agreement shall not be assigned, pledged or hypothecated by the
Seller to a third party without the prior written consent of the Purchaser,
which consent may be withheld by the Purchaser in its sole discretion. This
Agreement may be assigned, pledged or hypothecated by the Purchaser in whole or
in part, and with respect to one or more of the Mortgage Loans, without the
consent of the Seller; provided that with respect to each Mortgage Loan Package,
Seller shall not be required to recognize more than (a) three transferees of the
Purchaser pursuant to Securitization Transactions and (b) one transferee of the
Purchaser pursuant to a Whole Loan Transfer. In the event the Purchaser assigns
this Agreement, and the assignee assumes any of the Purchaser's obligations
hereunder, the Seller acknowledges and agrees to look solely to such assignee,
and not to the Purchaser, for performance of the obligations so assumed and the
Purchaser shall be relieved from any liability to the Seller with respect
thereto. The Successor Servicer shall be an intended third party beneficiary of
this Agreement to the same extent as if it were a party hereto, and shall have
the right to enforce the provisions of this Agreement.
SECTION 22. Waivers.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced.
SECTION 23. Exhibits.
The exhibits to this Agreement are hereby incorporated and made a
part hereof and are an integral part of this Agreement.
SECTION 24. General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Agreement have the meanings assigned
to them in this Agreement and include the plural as well as the singular, and
the use of any gender herein shall be deemed to include the other gender;
(b) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
(c) references herein to "Articles," "Sections," "Subsections,"
"Paragraphs," and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other subdivisions of
this Agreement;
(d) reference to a Subsection without further reference to a Section
is a reference to such Subsection as contained in the same Section in which the
reference appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(e) the words "herein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision; and
(f) the term "include" or "including" shall mean without limitation
by reason of enumeration.
SECTION 25. Reproduction of Documents.
This Agreement and all documents relating thereto, including,
without limitation, (a) consents, waivers and modifications which may hereafter
be executed, (b) documents received by any party at the closing, and (c)
financial statements, certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties agree
that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the original
is in existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
SECTION 26. Further Agreements.
The Seller and the Purchaser each agree to execute and deliver to
the other such reasonable and appropriate additional documents, instruments or
agreements as may be necessary or appropriate to effectuate the purposes of this
Agreement.
SECTION 27. Recordation of Assignments of Mortgage.
To the extent permitted by applicable law, each of the Assignments
of Mortgage is subject to recordation in all appropriate public offices for real
property records in all the counties or their comparable jurisdictions in which
any or all of the Mortgaged Properties are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected at the Seller's expense in the event recordation is either necessary
under applicable law or requested by the Purchaser (which request may be made by
the Purchaser at any time following the related Closing Date) at its sole option
(except with respect to any MERS Designated Mortgage Loan).
SECTION 28. No Solicitation.
From and after the related Closing Date, the Seller agrees that it
will not take any action or cause any action to be taken by any of its agents or
affiliates, or by any independent contractors on the Seller's behalf, to
personally, by telephone or mail, solicit the Mortgagor under any Mortgage Loan
to refinance a Mortgage Loan, in whole or in part, without the prior written
consent of the Purchaser. It is understood and agreed that all rights and
benefits relating to the solicitation of any mortgagors to refinance any
Mortgage Loans and the attendant rights, title and interest in and to the list
of such mortgagors and data relating to their mortgages (including insurance
renewal dates) shall be transferred to the Purchaser pursuant to the Purchase
Agreement on the related Closing Date and the Seller shall take no action to
undermine these rights and benefits. Notwithstanding the foregoing, it is
understood and agreed that promotions undertaken by the Seller or any affiliate
of the Seller which are directed to the general public at large, including,
without limitation, mass mailing, internet, and email solicitations based, in
all instances, on commercially acquired mailing lists (which may not be targeted
at the Mortgagors,) and newspaper, radio and television advertisements shall not
constitute solicitation under this Section 28. It is understood and agreed that
responses to payoff inquiries by the Mortgagors or obligors shall not constitute
solicitation for purposes of this Section 28.
SECTION 29. Waiver of Trial by Jury.
THE SELLER AND THE PURCHASER EACH KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 30. Submission To Jurisdiction; Waivers.
Each party hereto hereby irrevocably and unconditionally:
(A). SUBMITS ITSELF IN ANY LEGAL ACTION OR PROCEEDING RELATING TO
THIS AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT
THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF
NEW YORK, THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(B). CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN
SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY
SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT
COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(C). AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR
ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET
FORTH HEREIN OR AT SUCH OTHER ADDRESS OF WHICH THE PARTIES HERETO SHALL HAVE
BEEN NOTIFIED; AND
(D). AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT
TO SUE IN ANY OTHER JURISDICTION.
SECTION 31. Confidential Information
The Seller understands and agrees that this Agreement, the Side
Letter, the related Purchase Price and Terms Letter, the Interim Servicing
Agreement, and any other agreements executed in connection with the sale
contemplated hereunder, any agreements executed in connection with the
securitization of the Mortgage Loans, and any offering circulars or other
disclosure documents produced in connection with such securitization (the
"Agreements") are confidential and proprietary to the Purchaser, and the Seller
agrees to hold such documents confidential and not to divulge such documents to
anyone except (a) to the extent required by law or judicial order or to enforce
its rights or remedies under the related Purchase Price and Terms Agreement or
the Agreements, (b) to the extent such information enters into the public domain
other than through the wrongful act of the Seller, (c) as is necessary in
working with legal counsel, auditors, agents, rating agencies, taxing
authorities or other governmental agencies or (d) the federal income tax
treatment of the transactions hereunder, any fact relevant to understanding the
federal tax treatment of the transactions hereunder, and all materials of any
kind (including opinions or other tax analyses) relating to such federal income
tax treatment; provided that the Seller may not disclose the name of or
identifying information with respect to Purchaser or any pricing terms or other
nonpublic business or financial information that is unrelated to the purported
or claimed federal income tax treatment of the transactions hereunder and is not
relevant to understanding the purported or claimed federal income tax treatment
of the transactions hereunder.
Moreover, the Seller understands and agrees that this Agreement, any
other agreements executed in connection with the sale contemplated hereunder,
any agreements executed in connection with the securitization of the Mortgage
Loans, and any offering circulars or other disclosure documents produced in
connection with such securitization are confidential and proprietary to the
Purchaser, and the Seller agrees to hold such documents confidential and not to
divulge such documents to anyone except (a) to the extent required by law or
judicial order or to enforce its rights or remedies under this letter agreement
or the Agreements, (b) to the extent such information enters into the public
domain other than through the wrongful act of the Seller, or (c) as is necessary
in working with legal counsel, auditors, agents, rating agencies, taxing
authorities or other governmental agencies. The rights and obligations set forth
in this paragraph shall survive the Closing Date and shall not merge into the
closing documents but shall be independently enforceable by the parties hereto.
SECTION 32. Compliance with Regulation AB
Subsection 32.01. Intent of the Parties; Reasonableness.
The Purchaser and the Seller acknowledge and agree that the purpose
of Section 32 of this Agreement is to facilitate compliance by the Purchaser and
any Depositor with the provisions of Regulation AB and related rules and
regulations of the Commission. Although Regulation AB is applicable by its terms
only to offerings of asset-backed securities that are registered under the
Securities Act, the Seller acknowledges that investors in privately offered
securities may require that the Purchaser or any Depositor provide comparable
disclosure in unregistered offerings. References in this Agreement to compliance
with Regulation AB include provision of comparable disclosure in private
offerings.
Neither the Purchaser nor any Depositor shall 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
thereunder (or the provision in a private offering of disclosure comparable to
that required under the Securities Act). Each of the Seller and the Purchaser
acknowledge 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 asset-backed securities markets,
advice of counsel, or otherwise, and agrees to comply with reasonable requests
made by the Purchaser or any Depositor in good faith for delivery of information
under these provisions on the basis of evolving interpretations of Regulation
AB. In connection with any Securitization Transaction, each of the Seller and
the Purchaser shall cooperate fully with the other party to deliver any and all
statements, reports, certifications, records and any other information necessary
in the good faith determination of the party requesting such information to
comply with the provisions of Regulation AB, together with such disclosures
relating to the Seller, any Third-Party Originator and the Mortgage Loans, or
the servicing of the Mortgage Loans, reasonably believed to be necessary in
order to effect such compliance.
The Purchaser (including any of its assignees or designees) shall
cooperate with the Seller by providing timely notice of requests for information
under these provisions and by reasonably limiting such requests to information
required, in the Purchaser's reasonable judgment, to comply with Regulation AB.
Subsection 32.02..Additional Representations and Warranties of the
Seller.
(a) The Seller shall be deemed to represent to the Purchaser and to
any Depositor, as of the date on which information is first provided to the
Purchaser or any Depositor under Subsection 32.03 that, except as disclosed in
writing to the Purchaser or such Depositor prior to such date: (i) there are no
material legal or governmental proceedings pending (or known to be contemplated)
against the Seller or any Third-Party Originator; and (ii) there are no
affiliations, relationships or transactions relating to the Seller or any
Third-Party Originator with respect to any Securitization Transaction and any
party thereto identified by the related Depositor of a type described in Item
1119 of Regulation AB.
(b) If so requested by the Purchaser or any Depositor on any date
following the date on which information is first provided to the Purchaser or
any Depositor under Subsection 32.03, the Seller 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
request, provide reasonably adequate disclosure of the pertinent facts, in
writing, to the requesting party.
Subsection 32.03. Information to Be Provided by the Seller.
In connection with any Securitization Transaction the Seller shall
(i) within five Business Days following request by the Purchaser or any
Depositor, provide to the Purchaser and such Depositor (or, as applicable, cause
each Third-Party Originator to provide), in writing and in form and substance
reasonably satisfactory to the Purchaser and such Depositor, the information and
materials specified in paragraphs (a) and (b) of this Section, and (ii) as
promptly as practicable following notice to or discovery by the Seller, provide
to the Purchaser and any Depositor (in writing and in form and substance
reasonably satisfactory to the Purchaser and such Depositor) the information
specified in paragraph (d) of this Section.
(a) If so requested by the Purchaser or any Depositor, the Seller
shall provide such information regarding (i) the Seller, as originator of the
Mortgage Loans (including as an acquirer of Mortgage Loans from a Qualified
Correspondent), or (ii) each Third-Party Originator, as is requested for the
purpose of compliance with Items 1103(a)(1), 1105, 1110, 1117 and 1119 of
Regulation AB. Such information shall include, at a minimum:
(A) the originator's form of organization;
(B) a description of the originator's origination program and how
long the originator has been engaged in originating residential mortgage loans,
which description shall include a discussion of the originator's experience in
originating mortgage loans of a similar type as the Mortgage Loans; information
regarding the size and composition of the originator's origination portfolio;
and information that may be material, in the good faith judgment of the
Purchaser or any Depositor, to an analysis of the performance of the Mortgage
Loans, including the originators' credit-granting or underwriting criteria for
mortgage loans of similar type(s) as the Mortgage Loans and such other
information as the Purchaser or any Depositor may reasonably request for the
purpose of compliance with Item 1110(b)(2) of Regulation AB;
(C) a description of any material legal or governmental proceedings
pending (or known to be contemplated) against the Seller and each Third-Party
Originator; and
(D) a description of any affiliation or relationship between the
Seller, each Third-Party Originator and any of the following parties to a
Securitization Transaction, as such parties are identified to the Seller by the
Purchaser or any Depositor in writing in advance of such Securitization
Transaction:
(1) the sponsor;
(2) the depositor;
(3) the issuing entity;
(4) any servicer;
(5) any trustee;
(6) any originator;
(7) any significant obligor;
(8) any enhancement or support provider; and
(9) any other material transaction party.
(b) If so requested by the Purchaser or any Depositor, the Seller
shall provide (or, as applicable, cause each Third-Party Originator to provide)
Static Pool Information with respect to the mortgage loans (of a similar type as
the Mortgage Loans, as reasonably identified by the Purchaser as provided below)
originated by (i) the Seller, if the Seller is an originator of Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
and/or (ii) each Third-Party Originator. Such Static Pool Information shall be
prepared by the Seller (or Third-Party Originator) on the basis of its
reasonable, good faith interpretation of the requirements of Item 1105(a)(1)-(3)
of Regulation AB. To the extent that there is reasonably available to the Seller
(or Third-Party Originator) Static Pool Information with respect to more than
one mortgage loan type, the Purchaser or any Depositor shall be entitled to
specify whether some or all of such information shall be provided pursuant to
this paragraph. The content of such Static Pool Information may be in the form
customarily provided by the Seller, and need not be customized for the Purchaser
or any Depositor. Such Static Pool Information for each vintage origination year
or prior securitized pool, as applicable, shall be presented in increments no
less frequently than quarterly over the life of the mortgage loans included in
the vintage origination year or prior securitized pool. The most recent periodic
increment must be as of a date no later than one hundred thirty-five (135) days
prior to the date of the prospectus or other offering document in which the
Static Pool Information is to be included or incorporated by reference. The
Static Pool Information shall be provided in an electronic format that provides
a permanent record of the information provided, such as a portable document
format (pdf) file, or other such electronic format reasonably required by the
Purchaser or the Depositor, as applicable.
If so requested by the Purchaser or any Depositor, the Seller shall
provide (or, as applicable, cause each Third-Party Originator to provide), at
the expense of the requesting party (to the extent of any additional incremental
expense associated with delivery pursuant to this Agreement), such agreed-upon
procedures letters of certified public accountants reasonably acceptable to the
Purchaser or Depositor, as applicable, pertaining to Static Pool Information
relating to prior securitized pools for securitizations closed on or after
January 1, 2006 or, in the case of Static Pool Information with respect to the
Seller's or Third-Party Originator's originations or purchases, to calendar
months commencing January 1, 2006, as the Purchaser or such Depositor shall
reasonably request. Such statements and letters shall be addressed to and be for
the benefit of such parties as the Purchaser or such Depositor shall designate,
which may include, by way of example, any Sponsor, any Depositor and any broker
dealer acting as underwriter, placement agent or initial purchaser with respect
to a Securitization Transaction. Any such statement or letter may take the form
of a standard, generally applicable document accompanied by a reliance letter
authorizing reliance by the addressees designated by the Purchaser or such
Depositor.
With respect to those Mortgage Loans that were originated by Seller
and sold to the Purchaser pursuant to this Agreement and subsequently
securitized by the Purchaser or any of its Affiliates, the Purchaser shall, to
the extent consistent with then-current industry practice, cause the servicer
(or another party to such securitization) under the securitization to be
obligated to provide, information with respect to the Mortgage Loans from and
after cut-off date of such securitization necessary for the Seller to comply
with its obligations under Regulation AB, including, without limitation,
providing to the Seller static pool information, as set forth in Item 1105(a)(2)
and (5) of Regulation AB.
Promptly following notice or discovery of a material error in Static
Pool Information provided pursuant to the immediately preceding paragraph
(including an omission to include therein information required to be provided
pursuant to such paragraph), the Seller shall provide corrected Static Pool
Information to the Purchaser or any Depositor, as applicable, in the same format
in which Static Pool Information was previously provided to such party by the
Seller.
If so requested by the Purchaser or any Depositor, the Seller shall
provide (or, as applicable, cause each Third-Party Originator to provide), at
the expense of the requesting party (to the extent of any additional incremental
expense associated with delivery pursuant to this Agreement), such agreed-upon
procedures letters of certified public accountants reasonably acceptable to the
Purchaser or Depositor, as applicable, pertaining to Static Pool Information
relating to prior securitized pools for securitizations closed on or after
January 1, 2006 or, in the case of Static Pool Information with respect to the
Seller's or Third-Party Originator's originations or purchases, to calendar
months commencing January 1, 2006, as the Purchaser or such Depositor shall
reasonably request. Such statements and letters shall be addressed to and be for
the benefit of such parties as the Purchaser or such Depositor shall designate,
which may include, by way of example, any Sponsor, any Depositor and any broker
dealer acting as underwriter, placement agent or initial purchaser with respect
to a Securitization Transaction. Any such statement or letter may take the form
of a standard, generally applicable document accompanied by a reliance letter
authorizing reliance by the addressees designated by the Purchaser or such
Depositor.
(c) [Reserved]
(d) If so requested by the Purchaser or any Depositor for the
purpose of satisfying its reporting obligation under the Exchange Act with
respect to any class of asset-backed securities, the Seller shall (or shall
cause each Third-Party Originator to) (i) notify the Purchaser and any Depositor
in writing of (A) any material litigation or governmental proceedings pending
against the Seller or any Third-Party Originator and (B) any affiliations or
relationships that develop following the closing date of a Securitization
Transaction between the Seller or any Third-Party Originator and any of the
parties specified in clause (D) of paragraph (a) of this Section (and any other
parties identified in writing by the requesting party) with respect to such
Securitization Transaction, and (ii) provide to the Purchaser and any Depositor
a description of such proceedings, affiliations or relationships.
Subsection 32.04. Indemnification; Remedies.
(a) The Seller shall indemnify the Purchaser, each affiliate of the
Purchaser, and each of the following parties participating in a Securitization
Transaction: each sponsor and issuing entity; each Person responsible for the
preparation, execution or filing of any report required to be filed with the
Commission with respect to such Securitization Transaction, or for execution of
a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange
Act with respect to such Securitization Transaction; each broker dealer acting
as underwriter, placement agent or initial purchaser, each Person who controls
any of such parties or the Depositor (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act); and the respective present
and former directors, officers, employees and agents of each of the foregoing
and of the Depositor, 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:
(1)(A) any untrue statement of a material fact contained in any
certification, accountants' letter or other material provided in written
or electronic form under this Section 32 by or on behalf of the Seller, or
provided under this Section 32 by or on behalf of any Third-Party
Originator (collectively, the "Seller Information"), or (B) the omission
to state in the Seller Information a material fact required to be stated
in the Seller Information or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(2) any failure by the Seller or any Third-Party Originator to
deliver any information, report, certification, accountants' letter or
other material when and as required under this Section 32; or
(3) any breach by the Seller of a representation or warranty set
forth in Subsection 32.02(a) or in a writing furnished pursuant to
Subsection 32.02(b) and made as of a date prior to the closing date of the
related Securitization Transaction, to the extent that such breach is not
cured by such closing date, or any breach by the Seller of a
representation or warranty in a writing furnished pursuant to Subsection
32.02(b) to the extent made as of a date subsequent to such closing date.
In the case of any failure of performance described in clause
(a)(ii) of this Section, the Seller shall promptly reimburse the Purchaser, any
Depositor, as applicable, and each Person responsible for the preparation,
execution or filing of any report required to be filed with the Commission with
respect to such Securitization Transaction, or for execution of a certification
pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect
to such Securitization Transaction, for all costs reasonably incurred by each
such party in order to obtain the information, report, certification,
accountants' letter or other material not delivered as required by the Seller or
any Third-Party Originator.
(b) The Purchaser shall indemnify, or shall otherwise provide for
the indemnification of, the Seller and each affiliate of the Seller 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:any untrue statement of a material
fact contained in any certification, accountants' letter or other material
provided in written or electronic form to the Seller under this Section 32 by
the Purchaser or a subsequent servicer (collectively, the "Static Pool Data").
[Signatures Commence on Following Page]
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the date first above written.
XXXXXXX XXXXX MORTGAGE COMPANY, a
New York limited partnership
(Purchaser)
By:XXXXXXX XXXXX REAL ESTATE
FUNDING CORP., a New York
corporation, as General Partner
By:______________________________
Name:____________________________
Title:___________________________
FREMONT INVESTMENT & LOAN
(Seller)
By:____________________________________
Name:__________________________________
Title:_________________________________
Exhibit A
EXHIBIT A
CONTENTS OF EACH MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall include
each of the following items, which shall be available for inspection by the
Purchaser and any prospective Purchaser, and which shall be delivered to the
Custodian, or to such other Person as the Purchaser shall designate in writing,
pursuant to Section 6 of the Flow Mortgage Loan Purchase and Warranties
Agreement to which this Exhibit is attached (the "Agreement"):
(a) the original Mortgage Note bearing all intervening endorsements,
endorsed "Pay to the order of _________, without recourse" and signed in the
name of the last endorsee (the "Last Endorsee") by an authorized officer. To the
extent that there is no room on the face of the Mortgage Notes for endorsements,
the endorsement may be contained on an allonge, if state law so allows and the
Custodian is so advised by the Seller that state law so allows. If the Mortgage
Loan was acquired by the Seller in a merger, the endorsement must be by "[Last
Endorsee], successor by merger to [name of predecessor]". If the Mortgage Loan
was acquired or originated by the Last Endorsee while doing business under
another name, the endorsement must be by "[Last Endorsee], formerly known as
[previous name]";
(b) the original of any guarantee executed in connection with the
Mortgage Note;
(c) the original Mortgage with evidence of recording thereon. If in
connection with any Mortgage Loan, the Seller cannot deliver or cause to be
delivered the original Mortgage with evidence of recording thereon on or prior
to the related Closing Date because of a delay caused by the public recording
office where such Mortgage has been delivered for recordation or because such
Mortgage has been lost or because such public recording office retains the
original recorded Mortgage, the Seller shall deliver or cause to be delivered to
the Custodian, a photocopy of such Mortgage, together with (i) in the case of a
delay caused by the public recording office, an Officer's Certificate of the
Seller (or certified by the title company, escrow agent, or closing attorney)
stating that such Mortgage has been dispatched to the appropriate public
recording office for recordation and that the original recorded Mortgage or a
copy of such Mortgage certified by such public recording office to be a true and
complete copy of the original recorded Mortgage will be promptly delivered to
the Custodian upon receipt thereof by the Seller; or (ii) in the case of a
Mortgage where a public recording office retains the original recorded Mortgage
or in the case where a Mortgage is lost after recordation in a public recording
office, a copy of such Mortgage certified by such public recording office to be
a true and complete copy of the original recorded Mortgage;
(d) the originals of all assumption, modification, consolidation or
extension agreements, if any, with evidence of recording thereon;
(e) except with respect to each MERS Designated Mortgage Loan, the
original Assignment of Mortgage for each Mortgage Loan, in form and substance
acceptable for recording. The Assignment of Mortgage must be duly recorded only
if recordation is either necessary under applicable law or commonly required by
private institutional mortgage investors in the area where the Mortgaged
Property is located or on direction of the Purchaser as provided in this
Agreement. If the Assignment of Mortgage is to be recorded, the Mortgage shall
be assigned to the Purchaser. If the Assignment of Mortgage is not to be
recorded, the Assignment of Mortgage shall be delivered in blank. If the
Mortgage Loan was acquired by the Seller in a merger, the Assignment of Mortgage
must be made by "[Seller], successor by merger to [name of predecessor]". If the
Mortgage Loan was acquired or originated by the Seller while doing business
under another name, the Assignment of Mortgage must be by "[Seller], formerly
known as [previous name]";
(f) the originals of all intervening assignments of mortgage (if
any) evidencing a complete chain of assignment from the Seller (or MERS with
respect to each MERS Designated Mortgage Loan) to the Last Endorsee with
evidence of recording thereon, or if any such intervening assignment has not
been returned from the applicable recording office or has been lost or if such
public recording office retains the original recorded assignments of mortgage,
the Seller shall deliver or cause to be delivered to the Custodian, a photocopy
of such intervening assignment, together with (i) in the case of a delay caused
by the public recording office, an Officer's Certificate of the Seller (or
certified by the title company, escrow agent, or closing attorney) stating that
such intervening assignment of mortgage has been dispatched to the appropriate
public recording office for recordation and that such original recorded
intervening assignment of mortgage or a copy of such intervening assignment of
mortgage certified by the appropriate public recording office to be a true and
complete copy of the original recorded intervening assignment of mortgage will
be promptly delivered to the Custodian upon receipt thereof by the Seller; or
(ii) in the case of an intervening assignment where a public recording office
retains the original recorded intervening assignment or in the case where an
intervening assignment is lost after recordation in a public recording office, a
copy of such intervening assignment certified by such public recording office to
be a true and complete copy of the original recorded intervening assignment;
(g) The original mortgagee policy of title insurance or attorney's
opinion of title accompanied by a title abstract or, in the event such original
title policy is unavailable, a certified true copy of the related policy binder
or commitment for title certified to be true and complete by the title insurance
company; and
(h) security agreement, chattel mortgage or equivalent document
executed in connection with the Mortgage;
(i) original powers of attorney, if applicable, with evidence of
recording thereon, if required;
In the event an Officer's Certificate of the Seller is delivered to
the Purchaser because of a delay caused by the public recording office in
returning any recorded document, the Seller shall deliver to the Purchaser,
within 90 days of the related Closing Date, an Officer's Certificate which shall
(i) identify the recorded document, (ii) state that the recorded document has
not been delivered to the Custodian due solely to a delay caused by the public
recording office, (iii) state the amount of time generally required by the
applicable recording office to record and return a document submitted for
recordation, and (iv) specify the date the applicable recorded document will be
delivered to the Custodian.
Exhibit B
EXHIBIT B
CONTENTS OF EACH CREDIT FILE
(a) Any security agreement, chattel mortgage or equivalent executed
in connection with the Mortgage.
(b) The original hazard insurance policy and, if required by law,
flood insurance policy.
(c) Residential loan application.
(d) Mortgage Loan closing statement.
(e) Verification of employment and income except for Mortgage Loans
originated under a Limited Documentation Program.
(f) Verification of acceptable evidence of source and amount of
downpayment.
(g) Credit report on the Mortgagor.
(h) Residential appraisal report.
(i) Photograph of the Mortgaged Property.
(j) Survey of the Mortgaged Property, if any.
(k) Copy of each instrument necessary to complete identification of
any exception set forth in the exception schedule in the title policy, i.e., map
or plat, restrictions, easements, sewer agreements, home association
declarations, etc.
(l) All required disclosure statements.
(m) If available, termite report, structural engineer's report,
water potability and septic certification.
(n) Sales contract.
(o) Tax receipts, insurance premium receipts, ledger sheets, payment
history from date of origination, insurance claim files, correspondence, current
and historical computerized data files, and all other processing, underwriting
and closing papers and records which are customarily contained in a mortgage
loan file and which are required to document the Mortgage Loan or to service the
Mortgage Loan.
(p) Amortization schedule.
EXHIBIT C
MORTGAGE LOAN SCHEDULE FIELDS
(1) the Seller's Mortgage Loan identifying number;
(2) the Mortgagor's name;
(3) the street address of the Mortgaged Property including the city,
state and zip code;
(4) a code indicating whether the Mortgaged Property is
owner-occupied, a second home or investment property;
(5) the number and type of residential units constituting the
Mortgaged Property (i.e. a single family residence, a 2-4 family residence, a
unit in a condominium project or a unit in a planned unit development,
manufactured housing);
(6) the original months to maturity or the remaining months to
maturity from the related Cut-off Date, in any case based on the original
amortization schedule and, if different, the maturity expressed in the same
manner but based on the actual amortization schedule;
(7) the LTV at the origination;
(8) the Mortgage Interest Rate as of the related Cut-off Date;
(9) the date on which the Monthly Payment was due on the Mortgage
Loan and, if such date is not consistent with the Due Date currently in effect,
such Due Date;
(10) the stated maturity date;
(11) the amount of the Monthly Payment as of the related Cut-off
Date;
(12) the last payment date on which a payment was actually applied
to the outstanding principal balance;
(13) the original principal amount of the Mortgage Loan;
(14) the Stated Principal Balance of the Mortgage Loan as of the
close of business on the related Cut-off Date, after deduction of payments of
principal due on or before the related Cut-off Date;
(15) with respect to Adjustable Rate Mortgage Loans, the Interest
Rate Adjustment Date;
(16) with respect to Adjustable Rate Mortgage Loans, the Gross
Margin;
(17) with respect to Adjustable Rate Mortgage Loans, the Lifetime
Rate Cap under the terms of the Mortgage Note;
(18) with respect to Adjustable Rate Mortgage Loans, a code
indicating the type of Index;
(19) with respect to Adjustable Rate Mortgage Loans, the Periodic
Rate Cap under the terms of the Mortgage Note;
(20) the type of Mortgage Loan (i.e., Fixed Rate, Adjustable Rate,
First Lien);
(21) a code indicating the purpose of the loan (i.e., purchase, rate
and term refinance, equity take-out refinance);
(22) a code indicating the documentation style (i.e. full,
alternative or reduced);
(23) the loan credit classification (as described in the
Underwriting Guidelines);
(24) whether such Mortgage Loan provides for a Prepayment Penalty;
(25) the Prepayment Penalty period of such Mortgage Loan, if
applicable;
(26) a description of the Prepayment Penalty, if applicable;
(27) the Mortgage Interest Rate as of origination;
(28) the credit risk score (FICO score) at origination;
(29) the date of origination;
(30) the Mortgage Interest Rate adjustment period;
(31) the Mortgage Interest Rate floor;
(32) the Mortgage Interest Rate calculation method (i.e., 30/360,
simple interest, other);
(33) a code indicating whether the Mortgage Loan is a Section 32
Mortgage Loan;
(34) a code indicating whether the Mortgage Loan has been modified;
(35) the Current CLTV;
(36) the one year payment history;
(37) the Due Date for the first Monthly Payment;
(38) the original Monthly Payment due;
(39) with respect to the related Mortgagor, the debt-to-income
ratio;
(40) the Appraised Value of the Mortgaged Property;
(41) the sales price of the Mortgaged Property if the Mortgage Loan
was originated in connection with the purchase of the Mortgaged Property;
(42) the MERS Identification Number
(43) Senior lien balance
(44) Lien position marker
(45) CLTV at origination
(46) a code indicating if the Mortgage Loan is a Home Loan as such
terms are defined in the then current Standard & Poor's LEVELS(R) Glossary.
With respect to the Mortgage Loans in the aggregate:
(1) the number of Mortgage Loans;
(2) the current aggregate outstanding principal balance of the
Mortgage Loans;
(3) the weighted average Mortgage Interest Rate of the Mortgage
Loans; and
(4) the weighted average maturity of the Mortgage Loans.
EXHIBIT D
RESERVED
EXHIBIT E
SELLER'S OFFICER'S CERTIFICATE
I, ____________________, hereby certify that I am the duly elected
[Vice] President of Fremont Investment & Loan], a [state] [federally] chartered
institution organized under the laws of the [state of ____________] [United
States] (the "Company") and further as follows:
1. Attached hereto as Exhibit 1 is a true, correct and complete copy
of the charter of the Company which is in full force and effect on the
date hereof and which has been in effect without amendment, waiver,
rescission or modification.
2. Attached hereto as Exhibit 2 is a true, correct and complete copy
of the bylaws of the Company which are in effect on the date hereof and
which have been in effect without amendment, waiver, rescission or
modification.
3. Attached hereto as Exhibit 3 is an original certificate of good
standing of the Company issued within ten days of the date hereof, and no
event has occurred since the date thereof which would impair such
standing.
4. Attached hereto as Exhibit 4 is a true, correct and complete copy
of the corporate resolutions of the Board of Directors of the Company
authorizing the Company to execute and deliver each of the Amended and
Restated Flow Mortgage Loan Purchase and Warranties Agreement, dated as of
January 1, 2006, by and between Xxxxxxx Xxxxx Mortgage Company (the
"Purchaser") and the Company (the "Purchase Agreement"), and the Amended
and Restated Flow Interim Servicing Agreement, dated as of January 1,
2006, by and between the Company and the Purchaser (the "Interim Servicing
Agreement") and to endorse the Mortgage Notes and execute the Assignments
of Mortgages by original [or facsimile] signature], and such resolutions
are in effect on the date hereof and have been in effect without
amendment, waiver, rescission or modification.
5. Either (i) no consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Company of or compliance by the Company
with the Purchase Agreement, the Interim Servicing Agreement, the sale of
the mortgage loans or the consummation of the transactions contemplated by
the agreements; or (ii) any required consent, approval, authorization or
order has been obtained by the Company.
6. Neither the consummation of the transactions contemplated by, nor
the fulfillment of the terms of the Purchase Agreement and the Interim
Servicing Agreement conflicts or will conflict with or results or will
result in a breach of or constitutes or will constitute a default under
the charter or by-laws of the Company, the terms of any indenture or other
agreement or instrument to which the Company is a party or by which it is
bound or to which it is subject, or any statute or order, rule,
regulations, writ, injunction or decree of any court, governmental
authority or regulatory body to which the Company is subject or by which
it is bound.
7. To the best of my knowledge, there is no action, suit, proceeding
or investigation pending or threatened against the Company which, in my
judgment, either in any one instance or in the aggregate, may result in
any material adverse change in the business, operations, financial
condition, properties or assets of the Company or in any material
impairment of the right or ability of the Company to carry on its business
substantially as now conducted or in any material liability on the part of
the Company or which would draw into question the validity of the Purchase
Agreement and the Interim Servicing Agreement, or the mortgage loans or of
any action taken or to be taken in connection with the transactions
contemplated hereby, or which would be likely to impair materially the
ability of the Company to perform under the terms of the Purchase
Agreement and the Interim Servicing Agreement.
8. Each person listed on Exhibit 5 attached hereto who, as an
officer or representative of the Company, signed (a) the Purchase
Agreement, and (b) the Interim Servicing Agreement, (and (c) any other
document delivered or on the date hereof in connection with any purchase
described in the agreements set forth above was, at the respective times
of such signing and delivery, and is now, a duly elected or appointed,
qualified and acting officer or representative of the Company, who holds
the office set forth opposite his or her name on Exhibit 5, and the
signatures of such persons appearing on such documents are their genuine
signatures.
9. The Company is duly authorized to engage in the transactions
described and contemplated in the Purchase Agreement and the Interim
Servicing Agreement.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the
seal of the Company.
Dated:____________________ By:___________________________
Name:_________________________
[Seal] Title: [Vice] President
I, ________________________, an [Assistant] Secretary of
______________[COMPANY], hereby certify that ____________ is the duly elected,
qualified and acting [Vice] President of the Company and that the signature
appearing above is [her] [his] genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated:____________________ By:___________________________
Name:_________________________
Title: [Assistant] Secretary
EXHIBIT 5 to
Company's Officer's Certificate
NAME TITLE SIGNATURE
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EXHIBIT F
FORM OF OPINION OF COUNSEL TO THE SELLER
(date)
EXHIBIT G
FORM OF SECURITY RELEASE CERTIFICATION
___________________, 200__
[Federal Home Loan Bank of
______(the "Association")]
___________________________
___________________________
___________________________
Attention: ___________________________
___________________________
Re: Notice of Sale and Release of Collateral
Dear Sirs:
This letter serves as notice that Fremont Investment & Loan a [type
of entity], organized pursuant to the laws of [the state of incorporation] (the
"Company") has committed to sell to Xxxxxxx Xxxxx Mortgage Company under an
Amended and Restated Flow Mortgage Loan Purchase and Warranties Agreement, dated
as of January 1, 2006, certain mortgage loans originated by the Association. The
Company warrants that the mortgage loans to be sold to Xxxxxxx Xxxxx Mortgage
Company are in addition to and beyond any collateral required to secure advances
made by the Association to the Company.
The Company acknowledges that the mortgage loans to be sold to
Xxxxxxx Xxxxx Mortgage Company shall not be used as additional or substitute
collateral for advances made by the Association. Xxxxxxx Xxxxx Mortgage Company
understands that the balance of the Company's mortgage loan portfolio may be
used as collateral or additional collateral for advances made by the
Association, and confirms that it has no interest therein.
Execution of this letter by the Association shall constitute a full
and complete release of any security interest, claim, or lien which the
Association may have against the mortgage loans to be sold to Xxxxxxx Xxxxx
Mortgage Company.
Very truly yours,
_______________________________
By:____________________________
Name:__________________________
Title:_________________________
Date:__________________________
Acknowledged and approved:
[FEDERAL HOME LOAN BANK OF]
____________________________
By:______________________________
Name:____________________________
Title:___________________________
Date:____________________________
EXHIBIT H
FORM OF SECURITY RELEASE CERTIFICATION
I. Release of Security Interest
The financial institution named below hereby relinquishes any and
all right, title and interest it may have in all Mortgage Loans to be purchased
by to Xxxxxxx Xxxxx Mortgage Company from the Company named below pursuant to
that certain Amended and Restated Flow Mortgage Loan Purchase and Warranties
Agreement, dated as of January 1, 2006, and certifies that all notes, mortgages,
assignments and other documents in its possession relating to such Mortgage
Loans have been delivered and released to the Company named below or its
designees, as of the date and time of the sale of such Mortgage Loans to Xxxxxxx
Xxxxx Mortgage Company.
Name and Address of Financial Institution
_________________________________
(name)
_________________________________
(Address)
By:_____________________________
II. Certification of Release
The Company named below hereby certifies Xxxxxxx Xxxxx Mortgage
Company that, as of the date and time of the sale of the above-mentioned
Mortgage Loans to Xxxxxxx Xxxxx Mortgage Company the security interests in the
Mortgage Loans released by the above-named financial institution comprise all
security interests relating to or affecting any and all such Mortgage Loans. The
Company warrants that, as of such time, there are and will be no other security
interests affecting any or all of such Mortgage Loans.
_______________________________
By:____________________________
Title:_________________________
Date:__________________________
EXHIBIT I
UNDERWRITING GUIDELINES
EXHIBIT J
RESERVED
EXHIBIT K
SERVICER ACKNOWLEDGMENT
As of [_________]
Fremont Investment & Loan
000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Re: Letter Agreement in connection with the purchase by Xxxxxxx Xxxxx
Mortgage Company (the "Purchaser") and the sale by Fremont
Investment & Loan (the "Company") of mortgage loans pursuant to that
certain Xxxxxxx and Restated Flow Mortgage Loan Purchase and
Warranties Agreement (the "Agreement"), dated as of January 1, 2006,
by and between the Company and the Purchaser.
Ladies and Gentlemen:
In connection with the above-referenced transaction, and in
consideration of the mutual agreements hereinafter set forth, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Purchaser and the Company hereby agree as follows:
1. Unless otherwise specified in this letter agreement, all capitalized terms
herein shall have the meaning as provided in the Agreement.
2. The Purchaser hereby requests, and the Company hereby acknowledges, that
[SERVICER] shall be the "Successor Servicer" under the agreement.
3. This letter may be executed in any number of counterparts each of which
shall constitute one and the same instrument, and either party hereto may
execute this letter by signing any such counterpart.
[the remainder of this page intentionally left blank]
4. This letter shall be deemed in effect when a fully executed counterpart
thereof is received by the Company in the State of New York and shall be
deemed to have been made in the State of New York. This letter shall be
construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder shall be
determined in accordance with the laws of the State of New York except to
the extent preempted by Federal law.
Very truly yours,
XXXXXXX XXXXX MORTGAGE COMPANY
By:____________________________________
Name:__________________________________
Title:_________________________________
Accepted and Agreed:
FREMONT INVESTMENT & LOAN
(Seller)
By:____________________________________
Name:__________________________________
Title:_________________________________
EXHIBIT L
NEW JERSEY MORTGAGE LOAN STIPULATIONS
The seven stipulations below apply only to Mortgage Loans originated subject to
the New Jersey Home Ownership Act of 2002 ("Act").
1. No Mortgage Loan is a "high cost home loan," "home improvement,"
"manufactured home," or junior lien "covered" loan as defined under the
Act.
2. No more than 5% of the pool consists of refinance "covered loans" under
the Act.
3. The points and fees threshold calculations under the Act include
yield-spread premiums.
4. All loans originated under the Act will be subject to up to 100% due
diligence.
5. Mortgage Loan files must contain tangible net benefit and high-cost
worksheets.
6. Points and fees must be included on the related Mortgage Loan Schedule.
7. Seller will make the representation that all Mortgage Loans subject to New
Jersey's "flipping" prohibition, as defined under the Act, are in
compliance with the "reasonable, tangible net benefit" standard.
EXHIBIT M
XXXXXX XXX ANTI-PREDATORY LENDING REPRESENTATIONS
(a) Each Mortgage Loan is in compliance with the anti-predatory
lending eligibility for purchase requirements of Fannie Mae's Selling Guide;
(b) No Mortgage Loan is subject to the requirements of the Home
Ownership and Equity Protection Act of 1994 ("HOEPA");
(c) Each Mortgage Loan at the time it was made complied in all
material respects with applicable local, state, and federal laws, including, but
not limited to, all applicable predatory and abusive lending laws;
(d) No Mortgage Loan is a "High-Cost Home Loan" as defined in the
Georgia Fair Lending Act, as amended (the "Georgia Act"). No Mortgage Loan
subject to the Georgia Act and secured by owner occupied real property or an
owner occupied manufactured home located in the State of Georgia was originated
(or modified) on or after October 1, 2002 through and including March 6, 2003.
(e) No Mortgage Loan is a "High-Cost Home Loan" as defined in New
York Banking Law 6-1;
(f) No Mortgage Loan is a "High-Cost Home Loan" as defined in the
Arkansas Home Loan Protection Act effective July 16, 2003 (Act 1340 of 2003);
(g) No Mortgage Loan is a "High-Cost Home Loan" as defined in the
Kentucky high-cost home loan statute effective June 24, 2003 (Ky. Rev. Stat.
Section 360.100);
(h) No Mortgage Loan is a "High-Cost Home Loan" as defined in the
New Jersey Home Ownership Act effective November 27, 2003 (N.J.S.A. 46:10B-22 et
seq.);
(i) No Mortgage Loan is a "High-Cost Home Loan" as defined in the
New Mexico Home Loan Protection Act effective January 1, 2004 (N.M. Stat. Xxx.
xx.xx. 58-21A-1 et seq.);
(j) No Mortgage Loan is a "High-Risk Home Loan" as defined in the
Illinois High-Risk Home Loan Act effective January 1, 2004 (815 Ill. Comp. Stat.
137/1 et seq.);
(k) No Mortgage Loan is a "High-Cost Home Mortgage Loan" as defined
in the Massachusetts Predatory Home Loan Practices Act, effective November 6,
2004 (Mass. Xxx. Laws Ch. 183C);
(l) No borrower was encouraged or required to select a Mortgage Loan
product offered by the Mortgage Loan's originator which is a higher cost product
designed for less creditworthy borrowers, unless at the time of the Mortgage
Loan's origination, such borrower did not qualify taking into account credit
history and debt-to-income ratios for a lower-cost credit product then offered
by the Mortgage Loan's originator or any affiliate of the Mortgage Loan's
originator. If, at the time of loan application, the borrower may have qualified
for a lower-cost credit product then offered by any mortgage lending affiliate
of the Mortgage Loan's originator, the Mortgage Loan's originator referred the
borrower's application to such affiliate for underwriting consideration;
(m) The methodology used in underwriting the extension of credit for
each Mortgage Loan employs, in part, objective mathematical principles which
relate the borrower's income, assets and liabilities to the proposed payment and
such underwriting methodology does not rely on the extent of the borrower's
equity in the collateral as the principal determining factor in approving such
credit extension. Such underwriting methodology confirmed that at the time of
origination (application/approval) the borrower had a reasonable ability to make
timely payments on the Mortgage Loan;
(n) With respect to any Mortgage Loan that contains a provision
permitting imposition of a premium upon a prepayment prior to maturity: (i)
prior to the loan's origination, the borrower agreed to such premium in exchange
for a monetary benefit, including but not limited to a rate or fee reduction,
(ii) prior to the loan's origination, the borrower was offered the option of
obtaining a mortgage loan that did not require payment of such a premium, (iii)
the prepayment premium is disclosed to the borrower in the loan documents
pursuant to applicable state and federal law, (iv) for loans originated on or
after September 1, 2004, the duration of the prepayment period shall not exceed
three (3) years from the date of the note, unless the loan was modified to
reduce the prepayment period to no more than three years from the date of the
note and the borrower was notified in writing of such reduction in prepayment
period, and (v) notwithstanding any state or federal law to the contrary, the
Servicer shall not impose such prepayment premium in any instance when the
mortgage debt is accelerated as the result of the borrower's default in making
the loan payments;
(o) No borrower was required to purchase any credit life,
disability, accident or health insurance product as a condition of obtaining the
extension of credit. No borrower obtained a prepaid single-premium credit life,
disability, accident or health insurance policy in connection with the
origination of the Mortgage Loan; No proceeds from any Mortgage Loan were used
to purchase single premium credit insurance policies as part of the origination
of, or as a condition to closing, such Mortgage Loan;
(p) All points and fees related to each Mortgage Loan were disclosed
in writing to the borrower in accordance with applicable state and federal law
and regulation. Except in the case of a Mortgage Loan in an original principal
amount of less than $60,000 which would have resulted in an unprofitable
origination, no borrower was charged "points and fees" (whether or not financed)
in an amount greater than 5% of the principal amount of such loan, such 5%
limitation is calculated in accordance with Fannie Mae's anti-predatory lending
requirements as set forth in the Xxxxxx Xxx Selling Guide.
(q) All fees and charges (including finance charges) and whether
or not financed, assessed, collected or to be collected in connection with the
origination and servicing of each Mortgage Loan has been disclosed in writing to
the borrower in accordance with applicable state and federal law and regulation;
(r) The Servicer will transmit full-file credit reporting data for
each Mortgage Loan pursuant to Xxxxxx Xxx Guide Announcement 95-19 and that for
each Mortgage Loan, Servicer agrees it shall report one of the following
statuses each month as follows: new origination, current, delinquent (30-, 60-,
90-days, etc.), foreclosed, or charged-off; and
(s) No Mortgage Loan is a balloon mortgage loan that has an original
stated maturity of less than seven (7) years.
EXHIBIT N
ASSIGNMENT AND CONVEYANCE
On this __ day of _________, 200_, Fremont Investment & Loan, as the
Seller, under that certain Amended and Restated Flow Mortgage Loan Purchase and
Warranties Agreement, dated as of January 1, 2006 (the "Agreement") does hereby
sell, transfer, assign, set over and convey to Xxxxxxx Xxxxx Mortgage Company,
as Purchaser under the Agreement all rights, title and interest of the Seller in
and to (a) the Mortgage Loans listed on the related Mortgage Loan Schedule
attached as Exhibit 1 hereto, and (b) the Servicing Rights, together with the
related Mortgage Files and all rights and obligations arising under the
documents contained therein. Pursuant to Section 2 of the Agreement, the Seller
has delivered to the Custodian the documents for each Mortgage Loan to be
purchased as set forth in the Agreement. The ownership of each Mortgage Note,
Mortgage, and the contents of each Mortgage File is vested in the Purchaser and
the ownership of all records and documents with respect to the related Mortgage
Loan prepared by or which come into the possession of the Seller shall
immediately vest in the Purchaser and shall be delivered promptly by the Seller
to the Purchaser.
The Seller confirms to the Purchaser that, unless otherwise agreed
upon in writing by the Seller and the Purchaser, the representations and
warranties set forth in Section 7 of the Agreement with respect to the Mortgage
Loans listed on the Mortgage Loan Schedule attached hereto, and the
representations and warranties in Section 6 of the Agreement with respect to the
Seller are true and correct as of the date hereof.
Capitalized terms used herein and not otherwise defined shall have
the meanings set forth in the Agreement.
FREMONT INVESTMENT & LOAN
(Seller)
By:__________________________
Name:________________________
Title:_______________________
Schedule 1
MORTGAGE LOAN SCHEDULE
================================================================================
AMENDED AND RESTATED
FLOW INTERIM SERVICING AGREEMENT
between
XXXXXXX XXXXX MORTGAGE COMPANY,
Purchaser
and
FREMONT INVESTMENT & LOAN,
Interim Servicer
Dated as of January 1, 2006
CONVENTIONAL FIXED AND ADJUSTABLE RATE RESIDENTIAL MORTGAGE LOANS
================================================================================
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Definitions...................................................
ARTICLE II
SERVICING
Section 2.01 Interim Servicer to Act as Servicer...........................
Section 2.02 Liquidation of Mortgage Loans.................................
Section 2.03 Collection of Mortgage Loan Payments..........................
Section 2.04 Establishment of and Deposits to Custodial Account............
Section 2.05 Permitted Withdrawals From Custodial Account..................
Section 2.06 Establishment of and Deposits to Escrow Account...............
Section 2.07 Permitted Withdrawals From Escrow Account.....................
Section 2.08 Payment of Taxes, Insurance and Other Charges.................
Section 2.09 Protection of Accounts........................................
Section 2.10 Maintenance of Hazard Insurance...............................
Section 2.11 Maintenance of Fidelity Bond and Errors and Omissions
Insurance....................................................
Section 2.12 Inspections...................................................
Section 2.13 Restoration of Mortgaged Property.............................
Section 2.14 Liquidation Reports...........................................
Section 2.15 Notification of Adjustments...................................
Section 2.16 Reports of Foreclosures and Abandonments of Mortgaged
Property.....................................................
Section 2.17 Credit Reporting..............................................
ARTICLE III
PAYMENTS TO PURCHASER
Section 3.01 Remittances...................................................
Section 3.02 Statements to Purchaser.......................................
Section 3.03 Advances by Servicer..........................................
Section 3.04 Principal and Interest Advances by Interim Servicer...........
ARTICLE IV
GENERAL SERVICING PROCEDURES
Section 4.01 Transfers of Mortgaged Property...............................
Section 4.02 Satisfaction of Mortgages and Release of Mortgage Files.......
Section 4.03 Servicing Compensation........................................
Section 4.04 Annual Statement as to Compliance.............................
Section 4.05 Annual Independent Public Accountants' Servicing Report.......
Section 4.06 Right to Examine Interim Servicer Records.....................
Section 4.07 Compliance with Xxxxx-Xxxxx-Xxxxxx Act of 1999................
ARTICLE V
SELLER TO COOPERATE
Section 5.01 Provision of Information......................................
Section 5.02 Financial Statements; Servicing Facilities....................
ARTICLE VI
TERMINATION
Section 6.01 Damages.......................................................
Section 6.02 Termination...................................................
ARTICLE VII
BOOKS AND RECORDS
Section 7.01 Possession of Servicing Files Prior to the Transfer Date......
ARTICLE VIII
INDEMNIFICATION AND ASSIGNMENT
Section 8.01 Indemnification...............................................
Section 8.02 Limitation on Liability of Interim Servicer and Others........
Section 8.03 Limitation on Resignation and Assignment by Interim
Servicer.....................................................
Section 8.04 Assignment by Purchaser.......................................
ARTICLE IX
REPRESENTATIONS AND WARRANTIES OF SELLER
Section 9.01 Due Organization and Authority................................
Section 9.02 Ordinary Course of Business...................................
Section 9.03 No Conflicts..................................................
Section 9.04 Ability to Service............................................
Section 9.05 Ability to Perform............................................
Section 9.06 No Litigation Pending.........................................
Section 9.07 No Consent Required...........................................
Section 9.08 No Untrue Information.........................................
Section 9.09 Prior Servicing...............................................
ARTICLE X
DEFAULT
Section 10.01 Events of Default.............................................
Section 10.02 Waiver of Defaults............................................
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Notices.......................................................
Section 11.02 Waivers.......................................................
Section 11.03 Entire Agreement; Amendment...................................
Section 11.04 Execution; Binding Effect.....................................
Section 11.05 Headings......................................................
Section 11.06 Applicable Law................................................
Section 11.07 Relationship of Parties.......................................
Section 11.08 Severability of Provisions....................................
Section 11.09 Recordation of Assignments of Mortgage........................
ARTICLE XII
COMPLIANCE WITH REGULATION AB
Section 12.01 Intent of the Parties; Reasonableness.........................
Section 12.02 Additional Representations and Warranties of the Interim
Servicer.....................................................
Section 12.03 Information to Be Provided by the Interim Servicer............
Section 12.04 Servicer Compliance Statement.................................
Section 12.05 Report on Assessment of Compliance and Attestation............
Section 12.06 Use of Subservicers and Subcontractors........................
Section 12.07 Indemnification; Remedies.....................................
[SIGNATURE PAGE FOLLOWS]....................................................
EXHIBITS
EXHIBIT 1 FORM OF MONTHLY REMITTANCE ADVICE
EXHIBIT 2 FORM OF CUSTODIAL ACCOUNT CERTIFICATION
EXHIBIT 3 FORM OF CUSTODIAL ACCOUNT LETTER AGREEMENT
EXHIBIT 4 FORM OF ESCROW ACCOUNT CERTIFICATION
EXHIBIT 5 FORM OF ESCROW ACCOUNT LETTER AGREEMENT
EXHIBIT 6 FORM OF ANNUAL CERTIFICATION
EXHIBIT 7 SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF
COMPLIANCE
FLOW INTERIM SERVICING AGREEMENT
This Amended and Restated Flow Interim Servicing Agreement (the
"Agreement") is entered into as of the 1st day of January 2006 by and between
FREMONT INVESTMENT & LOAN (the "Interim Servicer") and XXXXXXX XXXXX MORTGAGE
COMPANY, a New York limited partnership (the "Purchaser").
WHEREAS, the Purchaser and Interim Servicer entered into an Amended
and Restated Mortgage Loan Purchase and Warranties Agreement dated as of the
date hereof (the "Purchase Agreement") pursuant to which from time to time the
Purchaser shall purchase from the Interim Servicer conventional, residential,
fixed and adjustable rate first and second lien mortgage loans (the "Mortgage
Loans") delivered as whole loans servicing released; and
WHEREAS, the Purchaser and Interim Servicer are parties to that
certain Flow Interim Servicing Agreement, dated October 1, 2004, as amended (the
"Original Servicing Agreement), pursuant to which the Purchaser and the Interim
Servicer agreed to have the Interim Servicer service and administer the Mortgage
Loans in each Mortgage Loan Package on behalf of the Purchaser during the period
between the related Closing Date and the related Transfer Date (the "Interim
Period"), and the parties provided the terms and conditions of such interim
servicing by the Interim Servicer in the Original Servicing Agreement.
WHEREAS, at the present time, the Purchaser and the Interim
Servicer desire to amend the Original Servicing Agreement to make certain
modifications as set forth herein with respect to all Mortgage Loans serviced
pursuant to this Agreement or the Original Servicing Agreement.
NOW, THEREFORE, in consideration of the mutual covenants made
herein and for other good and valuable consideration the sufficiency of which is
hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. All capitalized terms not otherwise
defined herein have the respective meanings set forth in the Purchase Agreement.
The following terms are defined as follows (except as otherwise agreed by the
parties).
Accepted Servicing Practices: With respect to any Mortgage Loan,
those mortgage servicing practices of prudent mortgage lending institutions
which service mortgage loans of the same type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located.
Agreement: This amended and restated agreement between the Purchaser
and the Interim Servicer for the interim servicing and administration of the
Mortgage Loans.
Custodial Account: The separate account or accounts created and
maintained pursuant to Section 2.04.
Commission: The United States Securities and Exchange Commission.
Condemnation Proceeds: All awards or settlements in respect of a
Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan Documents.
Depositor: The depositor, as such term is defined in Regulation AB,
with respect to any Securitization Transaction.
Determination Date: With respect to each Remittance Date, the date 2
Business Days prior to such Remittance Date.
Eligible Investments: Any one or more of the obligations and
securities listed below which investment provides for a date of maturity not
later than one day prior to the Remittance Date in each month (or such other
date as permitted under this Agreement):
(i) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States of America
or any agency or instrumentality of the United States of America the
obligations of which are backed by the full faith and credit of the United
States of America ("Direct Obligations");
(ii) federal funds, demand and time deposits in, certificates of
deposits of, or bankers' acceptances issued by, any depository institution
or trust company (including U.S. subsidiaries of foreign depositories)
incorporated or organized under the laws of the United States of America
or any state thereof and subject to supervision and examination by federal
or state banking authorities, so long as at the time of such investment or
the contractual commitment providing for such investment the commercial
paper or other short-term debt obligations of such depository institution
or trust company (or, in the case of a depository institution or trust
company which is the principal subsidiary of a holding company, the
commercial paper or other short-term debt or deposit obligations of such
holding company or deposit institution, as the case may be) have been
rated by each Rating Agency in its highest short-term rating category or
one of its two highest long-term rating categories;
(iii) repurchase agreements collateralized by Direct Obligations or
securities guaranteed by Xxxxxx Xxx or Freddie Mac with any registered
broker/dealer subject to Securities Investors' Protection Corporation
jurisdiction or any commercial bank insured by the FDIC, if such
broker/dealer or bank has an uninsured, unsecured and unguaranteed
obligation rated by each Rating Agency in its highest short-term rating
category;
(iv) securities bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States of America or
any state thereof which have a credit rating from each Rating Agency, at
the time of investment or the contractual commitment providing for such
investment, at least equal to one of the two highest long-term credit
rating categories of each Rating Agency; provided, however, that
securities issued by any particular corporation will not be Eligible
Investments to the extent that investment therein will cause the then
outstanding principal amount of securities issued by such corporation to
exceed 20% of the aggregate principal amount of all Eligible Investments
in the Custodial Accounts and the Escrow Accounts; provided, further, that
such securities will not be Eligible Investments if they are published as
being under review with negative implications from either Rating Agency;
(v) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a
specified date not more than 180 days after the date of issuance thereof)
rated by each Rating Agency in its highest short-term rating category;
(vi) certificates or receipts representing direct ownership
interests in future interest or principal payments on obligations of the
United States of America or its agencies or instrumentalities (which
obligations are backed by the full faith and credit of the United States
of America) held by a custodian in safekeeping on behalf of the holders of
such receipts; and
(vii) any other demand, money market, common trust fund or time
deposit or obligation, or interest-bearing or other security or investment
rated in the highest rating category by each Rating Agency;
provided, however, that (a) any such instrument shall be acceptable to the
Rating Agencies, and (b) no such instrument shall be an Eligible Investment if
such instrument evidences either (i) a right to receive only interest payments
with respect to the obligations underlying such instrument, or (ii) both
principal and interest payments derived from obligations underlying such
instrument and the principal and interest payments with respect to such
instrument provide a yield to maturity of greater than 120% of the yield to
maturity at par of such underlying obligations.
Escrow Account: The separate account or accounts created and
maintained pursuant to Section 2.06.
Escrow Payment: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed by
the Mortgagor with the mortgagee pursuant to the Mortgage or any other document.
Exchange Act. The Securities Exchange Act of 1934, as amended.
Event of Default: Any one of the conditions or circumstances
enumerated in Section 11.01.
Fidelity Bond: A fidelity bond to be maintained by the Interim
Servicer pursuant to Section 2.11.
Fitch: Fitch Ratings, or its successor in interest.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property.
Interim Period: The period between the related Closing Date and the
related Transfer Date.
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or assignment
of such Mortgage Loan, trustee's sale, foreclosure sale or otherwise, or the
sale of the related Mortgaged Property if the Mortgaged Property is acquired in
satisfaction of the Mortgage Loan.
Moody's: Xxxxx'x Investors Service, Inc., and any successor thereto.
Monthly Advance: The portion of Monthly Payment delinquent with
respect to each Mortgage Loan at the close of business on the Business Day
immediately preceding the Remittance Date required to be advanced by the Interim
Servicer pursuant to section 3.04.
Mortgage Interest Rate: The annual rate of interest borne on a
Mortgage Note with respect to each Mortgage Loan.
Mortgage Loan Remittance Rate: With respect to each Mortgage Loan,
the annual rate of interest remitted to the Purchaser, which shall be equal to
the Mortgage Interest Rate minus the Servicing Fee.
Prime Rate: The prime rate announced to be in effect from time to
time, as published as the average rate in The Wall Street Journal.
Principal Prepayment: Any payment or other recovery of principal on
a Mortgage Loan which is received in advance of its scheduled Due Date,
including any prepayment penalty or premium thereon and which is not accompanied
by an amount of interest representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment.
Principal Prepayment Period: The month preceding the month in which
the related Remittance Date occurs.
Purchase Agreement: The Amended and Restated Flow Mortgage Loan
Purchase and Warranties Agreement between the Purchaser and the Interim Servicer
related to the purchase of the Mortgage Loans dated as of the date hereof.
Qualified Depository: A depository the accounts of which are insured
by the FDIC.
Rating Agency: Any of Fitch, Moody's or Standard & Poor's, or their
respective successors designated by the Purchaser.
Reconstitution: Any Securitization Transaction or Whole Loan
Transfer.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or
by the staff of the Commission, or as may be provided by the Commission or its
staff from time to time.
Remittance Date: The 10th Business Day of each month.
REO Disposition: The final sale by the Interim Servicer of any REO
Property.
REO Property: A Mortgaged Property acquired by the Interim Servicer
on behalf of the Purchaser through foreclosure or by deed in lieu of
foreclosure.
SAIF: The Savings Association Insurance Fund, or any successor
thereto.
Securities Act: The Securities Act of 1933, as amended.
Securitization Transaction. Any transaction involving either (1) a
sale or other transfer of some or all of the Mortgage Loans directly or
indirectly to an issuing entity in connection with an issuance of publicly
offered or privately placed, rated or unrated mortgage-backed securities or (2)
an issuance of publicly offered or privately placed, rated or unrated
securities, the payments on which are determined primarily by reference to one
or more portfolios of residential mortgage loans consisting, in whole or in
part, of some or all of the Mortgage Loans.
Servicer: As defined in Section 12.03(c).
Servicer Information: As defined in Section 12.07(a).
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses (including reasonable attorneys' fees and
disbursements) incurred in the performance by the Interim Servicer of its
servicing obligations (other than Monthly Advances), including, but not limited
to, the cost of (a) the preservation, restoration and protection of the
Mortgaged Property, (b) any fees relating to any enforcement or judicial
proceedings, excluding foreclosures, (c) the management and liquidation of the
Mortgaged Property if the Mortgaged Property is acquired in satisfaction of the
Mortgage, (d) taxes, assessments, water rates, sewer rents and other charges
which are or may become a lien upon the Mortgaged Property and (e) compliance
with the obligations pursuant to the provisions of this Agreement. Interim
Servicer shall have no obligation to make any Servicing Advances which are
nonrecoverable.
Servicing Criteria: The "servicing criteria" set forth in Item
1122(d) of Regulation AB, as such may be amended from time to time.
Servicing Fee: With respect to each Mortgage Loan, the amount of the
annual fee the Purchaser shall pay to the Interim Servicer on each Remittance
Date, which shall, for a period of one full month, be equal to one-twelfth of
the product of (a) the Servicing Fee Rate and (b) the outstanding principal
balance of such Mortgage Loan as of the first day of such month. Such fee shall
be payable monthly, computed on the basis of the same principal amount and
period respecting which any related interest payment on a Mortgage Loan is
computed and, which amount shall be prorated for any portion of a month during
which the Mortgage Loan is serviced by the Interim Servicer pursuant to this
Agreement. The obligation of the Purchaser to pay the Servicing Fee is limited
to, and the Servicing Fee is payable solely from, the interest portion
(including recoveries with respect to interest from Liquidation Proceeds, to the
extent permitted by Section 2.05) of such Monthly Payment collected by the
Interim Servicer, or as otherwise provided under Section 2.05.
Servicing Fee Rate: 0.50% per annum or such other fee as set forth
in the related Purchase Price and Terms Agreement.
Servicing File: With respect to each Mortgage Loan, the file
retained by the Interim Servicer consisting of copies of the Mortgage Loan
Documents listed on Exhibit A to the Purchase Agreement and originals of all
documents in the Mortgage File as listed on Exhibit B to the Purchase Agreement
which are not delivered to the Purchaser and
Servicing Officer: Any officer of the Interim Servicer involved in
or responsible for, the administration and servicing of the Mortgage Loans whose
name appears on a list of servicing officers furnished by the Interim Servicer
to the Purchaser upon request, as such list may from time to time be amended.
Standard & Poor's: Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies Inc., and any successor thereto.
Subcontractor: Any vendor, subcontractor or other Person that is not
responsible for the overall servicing (as "servicing" is commonly understood by
participants in the mortgage-backed securities market) of Mortgage Loans but
performs one or more discrete functions identified in Item 1122(d) of Regulation
AB with respect to Mortgage Loans under the direction or authority of the
Interim Servicer or a Subservicer.
Subservicer: Any Person that services Mortgage Loans on behalf of
the Interim Servicer or any Subservicer and is responsible for the performance
(whether directly or through Subservicers or Subcontractors) of a substantial
portion of the material servicing functions required to be performed by the
Interim Servicer under this Agreement or any Reconstitution Agreement that are
identified in Item 1122(d) of Regulation AB.
Transfer Date: As defined in the Purchase Agreement.
Whole Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans, other than a Securitization Transaction.
ARTICLE II
SERVICING
Section 2.01 Interim Servicer to Act as Servicer. With respect to
the Mortgage Loans in each Mortgage Loan Package purchased by the Purchaser,
from and after the related Closing Date, the Interim Servicer, as an independent
contractor, shall service and administer the Mortgage Loans during the related
Interim Period, and shall have full power and authority acting alone to do any
and all things in connection with such servicing and administration which the
Interim Servicer may deem necessary or desirable, consistent with the terms of
this Agreement and with Accepted Servicing Practices.
The Interim Servicer may not waive, modify or vary any term of any
Mortgage Loan or consent to the postponement of strict compliance with any such
term or in any manner grant indulgence to any Mortgagor. Without limiting the
generality of the foregoing, the Interim Servicer shall continue, and is hereby
authorized and empowered, to execute and deliver on behalf of itself and the
Purchaser, all instruments of satisfaction or cancellation, or of partial or
full release, discharge and all other comparable instruments, with respect to
the Mortgage Loans and with respect to the Mortgaged Properties. If reasonably
required by the Interim Servicer, the Purchaser shall furnish the Interim
Servicer with any powers of attorney and other documents necessary or
appropriate to enable the Interim Servicer to carry out its servicing and
administrative duties under this Agreement.
In servicing and administering the Mortgage Loans, the Interim
Servicer shall employ procedures (including collection procedures) and exercise
the same care that it customarily employs and exercises in servicing and
administering mortgage loans for its own account, giving due consideration to
Accepted Servicing Practices where such practices do not conflict with the
requirements of this Agreement, the Mortgage Loan Documents or applicable law
and the Purchaser's reliance on the Interim Servicer.
The Interim Servicer shall keep at its servicing office books and
records in which, subject to such reasonable regulations as it may prescribe,
the Interim Servicer shall note transfers of Mortgage Loans. No transfer of a
Mortgage Loan may be made unless such transfer is in compliance with the terms
hereof. For the purposes of this Agreement, Interim Servicer shall be under no
obligation to deal with any Person with respect to this Agreement or the
Mortgage Loans unless the Interim Servicer has been notified of such transfers
as provided in this Section 2.01. The Purchaser may sell and transfer, in whole
or in part, the Mortgage Loans. Upon notice thereof, Interim Servicer shall mark
its books and records to reflect the ownership of the Mortgage Loans by such
assignee, and the previous Purchaser shall be released from its obligations
hereunder. This Agreement shall be binding upon and inure to the benefit of the
Purchaser and Interim Servicer and their permitted successors, assignees and
designees.
Section 2.02 Liquidation of Mortgage Loans. In the event that any
payment due under any Mortgage Loan and not postponed pursuant to Section 2.01
is not paid when the same becomes due and payable, or in the event the Mortgagor
fails to perform any other covenant or obligation under the Mortgage Loan and
such failure continues beyond any applicable grace period, the Interim Servicer
shall take such action as (1) the Interim Servicer would take under similar
circumstances with respect to a similar mortgage loan held for its own account
for investment, (2) shall be consistent with Accepted Servicing Practices, (3)
the Interim Servicer shall determine prudently to be in the best interest of
Purchaser.
Section 2.03 Collection of Mortgage Loan Payments. Continuously from
the date hereof until the related Transfer Date the Interim Servicer shall
proceed diligently to collect all payments due under each of the Mortgage Loans
when the same shall become due and payable and shall take special care in
ascertaining and estimating Escrow Payments and all other charges that will
become due and payable with respect to the Mortgage Loans and each related
Mortgaged Property, to the end that the installments payable by the Mortgagors
will be sufficient to pay such charges as and when they become due and payable.
Section 2.04 Establishment of and Deposits to Custodial Account. The
Interim Servicer shall segregate and hold all funds collected and received
pursuant to the Mortgage Loans separate and apart from any of its own funds and
general assets and shall establish and maintain one or more Custodial Accounts,
in the form of time deposit or demand accounts, titled "Fremont Investment &
Loan, in trust for Xxxxxxx Xxxxx Mortgage Company, Residential Fixed and
Adjustable Rate Mortgage Loans and various Mortgagors." The Custodial Account
shall be established with a Qualified Depository acceptable to the Purchaser.
The Interim Servicer and the Purchaser Intend that the Custodial Account be a
special deposit account. Any funds deposited in the Custodial Account shall at
all times be fully insured to the full extent permitted under applicable law.
Funds deposited in the Custodial Account may be drawn on by the Interim Servicer
in accordance with Section 2.05. The creation of any Custodial Account shall be
evidenced by a certification in the form of Exhibit 2 hereto, in the case of an
account established with the Interim Servicer, or by a letter agreement in the
form of Exhibit 3 hereto, in the case of an account held by a depository other
than the Interim Servicer. A copy of such certification or letter agreement
shall be furnished to the Purchaser and, upon request, to any subsequent
Purchaser.
The Interim Servicer shall identify and segregate collections on
behalf of the Purchaser on a daily basis and deposit in the Custodial Account no
later than the date which is two days after receipt, and retain therein, the
following collections received by the Interim Servicer after the related Cut-off
Date other than payments of principal and interest due on or before the related
Cut-off Date, or received by the Servicer prior to the related Cut-off Date but
allocable to a period subsequent thereto:
(i) all payments on account of principal on the Mortgage Loans,
including all Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans
adjusted to the Mortgage Loan Remittance Rate;
(iii) all Liquidation Proceeds;
(iv) all Insurance Proceeds including amounts required to be
deposited pursuant to Section 2.10 (other than proceeds to be held in the
Escrow Account and applied to the restoration or repair of the Mortgaged
Property or released to the Mortgagor in accordance with Section 2.13);
(v) all Condemnation Proceeds which are not applied to the
restoration or repair of the Mortgaged Property or released to the
Mortgagor in accordance with Section 2.15;
(vi) any amount required to be deposited in the Custodial Account
pursuant to Section 2.01, 2.09, 3.01, 3.04, 4.01 or 4.02;
(vii) any amounts payable in connection with the repurchase of any
Mortgage Loan pursuant to the Purchase Agreement; and
(viii) any prepayment penalties received with respect to any
Mortgage Loan.
The foregoing requirements for deposit into the Custodial Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of late payment charges and
assumption fees, to the extent permitted by Section 4.01, need not be deposited
by the Interim Servicer into the Custodial Account. Any interest paid on funds
deposited in the Custodial Account by the depository institution shall accrue to
the benefit of the Interim Servicer and the Interim Servicer shall be entitled
to retain and withdraw such interest from the Custodial Account pursuant to
Section 2.05.
Section 2.05 Permitted Withdrawals From Custodial Account. The
Interim Servicer shall, from time to time, withdraw funds from the Custodial
Account for the following purposes:
(i) to make payments to the Purchaser in the amounts and in the
manner provided for in Section 3.01;
(ii) to reimburse itself for Monthly Advances of the Servicer's
funds made pursuant to Section 3.04, unreimbursed Servicing Advances, and
any unpaid Servicing Fees, the Interim Servicer's right to reimburse
itself pursuant to this subclause (ii) with respect to any Mortgage Loan
being limited to related Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds and such other amounts as may be collected by the
Interim Servicer from the Mortgagor or otherwise relating to the Mortgage
Loan, it being understood that, in the case of any such reimbursement, the
Interim Servicer's right thereto shall be prior to the rights of the
Purchaser except that, where the Interim Servicer is required to
repurchase a Mortgage Loan pursuant to the Purchase Agreement or Section
4.02 of this Agreement, the Interim Servicer's right to such reimbursement
shall be subsequent to the payment to the Purchaser of the Repurchase
Price pursuant to such sections and all other amounts required to be paid
to the Purchaser with respect to such Mortgage Loan;
(iii) to pay itself interest on funds deposited in the Custodial
Account;
(iv) to reimburse itself for expenses incurred and reimbursable to
it pursuant to Section 4.03;
(v) to clear and terminate the Custodial Account upon the
termination of this Agreement; and
(vi) to withdraw funds deposited in error.
Section 2.06 Establishment of and Deposits to Escrow Account. The
Interim Servicer shall segregate and hold all funds collected and received
pursuant to a Mortgage Loan constituting Escrow Payments separate and apart from
any of its own funds and general assets and shall establish and maintain one or
more Escrow Accounts, in the form of time deposit or demand accounts, titled,
"Fremont Investment & Loan, in trust for Xxxxxxx Xxxxx Mortgage Company
Residential Fixed and Adjustable Rate Mortgage Loans and various Mortgagors".
The Escrow Accounts shall be established with a Qualified Depository, in a
manner which shall provide maximum available insurance thereunder. The Interim
Servicer and the Purchaser intend that the Escrow Accounts be special deposit
accounts. Funds deposited in the Escrow Account may be drawn on by the Interim
Servicer in accordance with Section 2.07. The creation of any Escrow Account
shall be evidenced by a certification in the form of Exhibit 4 hereto, in the
case of an account established with the Interim Servicer, or by a letter
agreement in the form of Exhibit 5 hereto, in the case of an account held by a
depository other than the Interim Servicer. A copy of such certification shall
be furnished to the Purchaser and, upon request, to any subsequent Purchaser.
The Interim Servicer shall deposit in the Escrow Account or Accounts
on a daily basis, and retain therein:
(i) all Escrow Payments collected on account of the Mortgage Loans,
for the purpose of effecting timely payment of any such items as required
under the terms of this Agreement; and
(ii) all amounts representing Insurance Proceeds or Condemnation
Proceeds which are to be applied to the restoration or repair of any
Mortgaged Property.
The Interim Servicer shall make withdrawals from the Escrow Account
only to effect such payments as are required under this Agreement, as set forth
in Section 2.07. The Interim Servicer shall be entitled to retain any interest
paid on funds deposited in the Escrow Account by the depository institution,
other than interest on escrowed funds required by law to be paid to the
Mortgagor. To the extent required by law, the Interim Servicer shall pay
interest on escrowed funds to the Mortgagor notwithstanding that the Escrow
Account may be non-interest bearing or that interest paid thereon is
insufficient for such purposes.
Section 2.07 Permitted Withdrawals From Escrow Account. Withdrawals
from the Escrow Account or Accounts may be made by the Interim Servicer only:
(i) to effect timely payments of ground rents, taxes, assessments,
water rates, mortgage insurance premiums, condominium charges, fire and
hazard insurance premiums or other items constituting Escrow Payments for
the related Mortgage;
(ii) to reimburse the Interim Servicer for any Servicing Advance
made by the Interim Servicer pursuant to Section 2.08 with respect to a
related Mortgage Loan, but only from amounts received on the related
Mortgage Loan which represent late collections of Escrow Payments
thereunder;
(iii) to refund to any Mortgagor any funds found to be in excess of
the amounts required under the terms of the related Mortgage Loan;
(iv) for transfer to the Custodial Account and application to reduce
the principal balance of the Mortgage Loan in accordance with the terms of
the related Mortgage and Mortgage Note;
(v) for application to restoration or repair of the Mortgaged
Property in accordance with the procedures outlined in Section 2.13;
(vi) to pay to the Interim Servicer, or any Mortgagor to the extent
required by law, any interest paid on the funds deposited in the Escrow
Account;
(vii) to clear and terminate the Escrow Account on the termination
of this Agreement; and
(viii) to withdraw funds deposited in error.
Section 2.08 Payment of Taxes, Insurance and Other Charges. With
respect to each First Lien Mortgage Loan, the Interim Servicer shall maintain
accurate records reflecting the status of ground rents, taxes, assessments,
water rates, sewer rents, and other charges which are or may become a lien upon
the Mortgaged Property and the status of fire and hazard insurance coverage and
shall obtain, from time to time, all bills for the payment of such charges
(including renewal premiums) and shall effect payment thereof prior to the
applicable penalty or termination date, employing for such purpose deposits of
the Mortgagor in the Escrow Account which shall have been estimated and
accumulated by the Interim Servicer in amounts sufficient for such purposes, as
allowed under the terms of the Mortgage. To the extent that a Mortgage does not
provide for Escrow Payments, the Interim Servicer shall determine that any such
payments are made by the Mortgagor at the time they first become due. The
Interim Servicer assumes full responsibility for the timely payment of all such
bills and shall effect timely payment of all such charges irrespective of each
Mortgagor's faithful performance in the payment of same or the making of the
Escrow Payments, and the Interim Servicer shall make advances from its own funds
to effect such payments.
Section 2.09 Protection of Accounts. The Interim Servicer may
transfer the Custodial Account or the Escrow Account to a different Qualified
Depository from time to time. Such transfer shall be made only upon obtaining
the consent of the Purchaser, which consent shall not be withheld unreasonably.
The Interim Servicer shall bear any expenses, losses or damages
sustained by the Purchaser because the Custodial Account and/or the Escrow
Account are not demand deposit accounts.
Amounts on deposit in the Custodial Account and the Escrow Account
may at the option of the Interim Servicer be invested in Eligible Investments;
provided that in the event that amounts on deposit in the Custodial Account or
the Escrow Account exceed the amount fully insured by the FDIC (the "Insured
Amount") the Interim Servicer shall be obligated to invest the excess amount
over the Insured Amount in Eligible Investments on the same Business Day as such
excess amount becomes present in the Custodial Account or the Escrow Account.
Any such Eligible Investment shall mature no later than the Determination Date
next following the date of such Eligible Investment, provided, however, that if
such Eligible Investment is an obligation of a Qualified Depository (other than
the Interim Servicer) that maintains the Custodial Account or the Escrow
Account, then such Eligible Investment may mature on such Remittance Date. Any
such Eligible Investment shall be made in the name of the Interim Servicer in
trust for the benefit of the Purchaser. All income on or gain realized from any
such Eligible Investment shall be for the benefit of the Interim Servicer and
may be withdrawn at any time by the Interim Servicer. Any losses incurred in
respect of any such investment shall be deposited in the Custodial Account or
the Escrow Account, by the Interim Servicer out of its own funds immediately as
realized.
Section 2.10 Maintenance of Hazard Insurance. The Interim Servicer
shall cause to be maintained for each First Lien Mortgage Loan, hazard insurance
such that all buildings upon the Mortgaged Property are insured by a generally
acceptable insurer rated A:VI or better in the current Best's Key Rating Guide
("Best's") against loss by fire, hazards of extended coverage and such other
hazards as are customary in the area where the Mortgaged Property is located, in
an amount which is at least equal to the lesser of (i) the maximum insurable
value of the improvements securing such Mortgage Loan and (ii) the greater of
(a) the outstanding principal balance of the Mortgage Loan and (b) an amount
such that the proceeds thereof shall be sufficient to prevent the Mortgagor or
the loss payee from becoming a co-insurer.
If upon origination of the Mortgage Loan, the related Mortgaged
Property was located in an area identified in the Federal Register by the Flood
Emergency Management Agency as having special flood hazards (and such flood
insurance has been made available) a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
is in effect with a generally acceptable insurance carrier rated A:VI or better
in Best's in an amount representing coverage equal to the lesser of (i) the
minimum amount required, under the terms of coverage, to compensate for any
damage or loss on a replacement cost basis (or the unpaid balance of the
mortgage if replacement cost coverage is not available for the type of building
insured) and (ii) the maximum amount of insurance which is available under the
Flood Disaster Protection Act of 1973, as amended. If at any time during the
term of the Mortgage Loan, the Interim Servicer determines in accordance with
applicable law that a Mortgaged Property is located in a special flood hazard
area and is not covered by flood insurance or is covered in an amount less than
the amount required by the Flood Disaster Protection Act of 1973, as amended,
the Interim Servicer shall notify the related Mortgagor that the Mortgagor must
obtain such flood insurance coverage, and if said Mortgagor fails to obtain the
required flood insurance coverage within forty-five (45) days after such
notification, the Interim Servicer shall immediately force place the required
flood insurance on the Mortgagor's behalf.
If a Mortgage is secured by a unit in a condominium project, the
Interim Servicer shall verify that the coverage required of the owner's
association, including hazard, flood, liability, and fidelity coverage, is being
maintained in accordance with the related Underwriting Guidelines, and secure
from the owner's association its agreement to notify the Interim Servicer
promptly of any change in the insurance coverage or of any condemnation or
casualty loss that may have a material effect on the value of the Mortgaged
Property as security.
The Interim Servicer shall cause to be maintained on each Mortgaged
Property earthquake or such other or additional insurance as may be required
pursuant to such applicable laws and regulations as shall at any time be in
force and as shall require such additional insurance, or as may be required to
conform with Accepted Servicing Practices.
In the event that the Purchaser or the Interim Servicer shall
determine that the Mortgaged Property should be insured against loss or damage
by hazards and risks not covered by the insurance required to be maintained by
the Mortgagor pursuant to the terms of the Mortgage, the Interim Servicer shall
communicate and consult with the Mortgagor with respect to the need for such
insurance and bring to the Mortgagor's attention the desirability of protection
of the Mortgaged Property.
All policies required hereunder shall name the Interim Servicer as
loss payee and shall be endorsed with standard or New York mortgagee clauses,
without contribution, which shall provide for at least 30 days prior written
notice of any cancellation, reduction in amount or material change in coverage.
The Interim Servicer shall not interfere with the Mortgagor's
freedom of choice in selecting either his insurance carrier or agent (unless the
insurance is force placed), provided, however, that the Interim Servicer shall
not accept any such insurance policies from insurance companies unless such
companies are rated A:VI or better in Best's and are licensed to do business in
the jurisdiction in which the Mortgaged Property is located. The Interim
Servicer shall determine that such policies provide sufficient risk coverage and
amounts, that they insure the property owner, and that they properly describe
the property address. The Interim Servicer shall furnish to the Mortgagor a
formal notice of expiration of any such insurance in sufficient time for the
Mortgagor to arrange for renewal coverage by the expiration date; provided,
however, that in the event that no such notice is furnished by the Interim
Servicer, the Interim Servicer shall ensure that replacement insurance policies
are in place in the required coverages and the Interim Servicer shall be solely
liable for any losses in the event coverage is not provided..
Pursuant to Section 2.04, any amounts collected by the Interim
Servicer under any such policies (other than amounts to be deposited in the
Escrow Account and applied to the restoration or repair of the related Mortgaged
Property, or property acquired in liquidation of the Mortgage Loan, or to be
released to the Mortgagor, in accordance with the Interim Servicer's normal
servicing procedures as specified in Section 2.13) shall be deposited in the
Custodial Account subject to withdrawal pursuant to Section 2.05.
Section 2.11 Maintenance of Fidelity Bond and Errors and Omissions
Insurance. The Interim Servicer shall maintain with responsible companies, at
its own expense, a blanket Fidelity Bond and an Errors and Omissions Insurance
Policy, with broad coverage on all officers, employees or other persons acting
in any capacity requiring such persons to handle funds, money, documents or
papers relating to the Mortgage Loans ("Interim Servicer Employees"). Any such
Fidelity Bond and Errors and Omissions Insurance Policy shall be in the form of
the Mortgage Banker's Blanket Bond and shall protect and insure the Interim
Servicer against losses, including forgery, theft, embezzlement, fraud, errors
and omissions and negligent acts of such Interim Servicer Employees. Such
Fidelity Bond and Errors and Omissions Insurance Policy also shall protect and
insure the Interim Servicer against losses in connection with the release or
satisfaction of a Mortgage Loan without having obtained payment in full of the
indebtedness secured thereby. No provision of this Section 2.11 requiring such
Fidelity Bond and Errors and Omissions Insurance Policy shall diminish or
relieve the Interim Servicer from its duties and obligations as set forth in
this Agreement. Upon the request of the Purchaser, the Interim Servicer shall
cause to be delivered to the Purchaser a certified true copy of such fidelity
bond and insurance policy and a statement from the surety and the insurer that
such fidelity bond and insurance policy shall in no event be terminated or
materially modified without 30 days' prior written notice to the Purchaser.
Section 2.12 Inspections. With respect to REO Properties, the
Interim Servicer shall inspect the Mortgaged Property as often as deemed
necessary by the Interim Servicer to assure itself that the value of the
Mortgaged Property is being preserved. The Interim Servicer shall keep a written
report of each such inspection.
Section 2.13 Restoration of Mortgaged Property. The Interim Servicer
need not obtain the approval of the Purchaser prior to releasing any Insurance
Proceeds or Condemnation Proceeds to the Mortgagor to be applied to the
restoration or repair of the Mortgaged Property if such release is in accordance
with Accepted Servicing Practices. At a minimum, the Interim Servicer shall
comply with the following conditions in connection with any such release of
Insurance Proceeds or Condemnation Proceeds:
(i) the Interim Servicer shall receive satisfactory independent
verification of completion of repairs and issuance of any required
approvals with respect thereto;
(ii) the Interim Servicer shall take all steps necessary to preserve
the priority of the lien of the Mortgage, including, but not limited to
requiring waivers with respect to mechanics' and materialmen's liens;
(iii) the Interim Servicer shall verify that the Mortgage Loan is
not in default; and
(iv) pending repairs or restoration, the Interim Servicer shall
place the Insurance Proceeds or Condemnation Proceeds in the Escrow
Account.
If the Purchaser is named as an additional loss payee, the Interim
Servicer is hereby empowered to endorse any loss draft issued in respect of such
a claim in the name of the Purchaser.
Section 2.14 Liquidation Reports. Upon the foreclosure sale of any
Mortgaged Property or the acquisition thereof by the Purchaser pursuant to a
deed in lieu of foreclosure, the Interim Servicer shall submit to the Purchaser
a liquidation report with respect to such Mortgaged Property.
Section 2.15 Notification of Adjustments. With respect to each
Mortgage Loan, the Interim Servicer shall adjust the Mortgage Interest Rate on
the related Interest Rate Adjustment Date in compliance with the requirements of
applicable law and the related Mortgage and Mortgage Note. The Interim Servicer
shall execute and deliver any and all necessary notices required under
applicable law and the terms of the related Mortgage Note and Mortgage regarding
the Mortgage Interest Rate adjustments. The Interim Servicer shall promptly,
upon written request therefor, deliver to the Purchaser such notifications and
any additional applicable data regarding such adjustments and the methods used
to calculate and implement such adjustments. Upon the discovery by the Interim
Servicer or the receipt of notice from the Purchaser that the Interim Servicer
has failed to adjust a Mortgage Interest Rate in accordance with the terms of
the related Mortgage Note, the Interim Servicer shall immediately deposit in the
Custodial Account from its own funds the amount of any interest loss or deferral
caused the Purchaser thereby.
Section 2.16 Reports of Foreclosures and Abandonments of Mortgaged
Property. Following the foreclosure sale or abandonment of any Mortgaged
Property, the Interim Servicer shall report such foreclosure or abandonment as
required pursuant to Section 6050J of the Code.
Section 2.17 Credit Reporting. The Interim Servicer shall report the
Mortgagor credit files to each of the three credit repositories on a monthly
basis in a timely manner.
ARTICLE III
PAYMENTS TO PURCHASER
Section 3.01 Remittances. On each Remittance Date the Interim
Servicer shall remit by wire transfer of immediately available funds to the
Purchaser (a) all amounts deposited in the Custodial Account as of the close of
business on the Determination Date (net of charges against or withdrawals from
the Custodial Account pursuant to Section 2.05), plus (b) all amounts, if any,
which the Interim Servicer is obligated to distribute pursuant to Section 3.04,
minus (c) any amounts attributable to Principal Prepayments received after the
applicable Principal Prepayment Period which amounts shall be remitted on the
following Remittance Date, and minus (d) any amounts attributable to Monthly
Payments collected but due on a Due Date or Dates subsequent to the first day of
the month of the Remittance Date, which amounts shall be remitted on the
applicable Remittance Date.
With respect to any remittance received by the Purchaser after the
second Business Day following the Business Day on which such payment was due,
the Interim Servicer shall pay to the Purchaser interest on any such late
payment at an annual rate equal to the Fed Funds Rate, adjusted as of the date
of each change, but in no event greater than the maximum amount permitted by
applicable law. Such interest shall be deposited in the Custodial Account by the
Interim Servicer on the date such late payment is made and shall cover the
period commencing with the day the payment was due and ending with the Business
Day on which such payment is made, both inclusive. Such interest shall be
remitted along with the distribution payable on the next succeeding Remittance
Date. The payment by the Interim Servicer of any such interest shall not be
deemed an extension of time for payment or a waiver of any Event of Default by
the Interim Servicer.
Section 3.02 Statements to Purchaser. Not later than the date which
is 2 Business Days prior to the Remittance Date, the Interim Servicer shall
furnish to the Purchaser a Monthly Remittance Advice, with a trial balance
report attached thereto, in the form of Exhibit 1 annexed hereto in hard copy
and electronic medium mutually acceptable to the parties as to the preceding
remittance and the period ending on the preceding Determination Date.
In addition, not more than 60 days after the end of each calendar
year, the Interim Servicer shall furnish to each Person who was a Purchaser at
any time during such calendar year an annual statement in accordance with the
requirements of applicable federal income tax law as to the aggregate of
remittances for the applicable portion of such year.
Such obligation of the Interim Servicer shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Interim Servicer pursuant to any requirements of the Internal
Revenue Code as from time to time are in force.
The Interim Servicer shall prepare and file any and all tax returns,
information statements or other filings required to be delivered to any
governmental taxing authority or to the Purchaser pursuant to any applicable law
with respect to the Mortgage Loans and the transactions contemplated hereby. In
addition, the Interim Servicer shall provide the Purchaser with such information
concerning the Mortgage Loans as is necessary for the Purchaser to prepare its
federal income tax return as the Purchaser may reasonably request from time to
time.
Section 3.03 Advances by Servicer. Except as otherwise provided
herein, the Interim Servicer shall be entitled to first priority reimbursement
pursuant to Section 2.07 hereof for Servicing Advances and Monthly Advances from
recoveries from the related Mortgagor or from all Liquidation Proceeds and other
payments or recoveries (including Insurance Proceeds and Condemnation Proceeds)
with respect to the related Mortgage Loan.
Section 3.04 Principal and Interest Advances by Interim Servicer. On
the Business Day immediately preceding the Remittance Date, the Interim Servicer
shall deposit in the Custodial Account from its own funds an amount equal to all
Monthly Payments (with interest adjusted to the Mortgage Loan Remittance Rate)
which were due on the Mortgage Loans during the applicable Due Period and which
were delinquent on the Business Day immediately preceding such Remittance Date
or which were deferred pursuant to Section 4.01.
ARTICLE IV
GENERAL SERVICING PROCEDURES
Section 4.01 Transfers of Mortgaged Property. The Interim Servicer
shall use its best efforts to enforce any "due-on-sale" provision contained in
any Mortgage or Mortgage Note and to deny assumption by the person to whom the
Mortgaged Property has been or is about to be sold whether by absolute
conveyance or by contract of sale, and whether or not the Mortgagor remains
liable on the Mortgage and the Mortgage Note. When the Mortgaged Property has
been conveyed by the Mortgagor, the Interim Servicer shall, to the extent it has
knowledge of such conveyance, exercise its rights to accelerate the maturity of
such Mortgage Loan under the "due-on-sale" clause applicable thereto.
If the Interim Servicer reasonably believes it is unable under
applicable law to enforce such "due-on-sale" clause, the Interim Servicer shall
enter into (i) an assumption and modification agreement with the person to whom
such property has been conveyed, pursuant to which such person becomes liable
under the Mortgage Note and the original Mortgagor remains liable thereon or
(ii) in the event the Interim Servicer is unable under applicable law to require
that the original Mortgagor remain liable under the Mortgage Note, a
substitution of liability agreement with the purchaser of the Mortgaged Property
pursuant to which the original Mortgagor is released from liability and the
purchaser of the Mortgaged Property is substituted as Mortgagor and becomes
liable under the Mortgage Note. If an assumption fee is collected by the Interim
Servicer for entering into an assumption agreement, a portion of such fee, up to
an amount equal to one-half of one percent (0.5%) of the outstanding principal
balance of the related Mortgage Loan, will be retained by the Interim Servicer
as additional servicing compensation, and any portion thereof in excess of
one-half of one percent (0.5%) shall be deposited in the Custodial Account for
the benefit of the Purchaser. In connection with any such assumption, neither
the Mortgage Interest Rate borne by the related Mortgage Note, the term of the
Mortgage Loan nor the outstanding principal amount of the Mortgage Loan shall be
changed.
To the extent that any Mortgage Loan is assumable, the Interim
Servicer shall inquire diligently into the creditworthiness of the proposed
transferee, and shall use the relevant underwriting criteria for approving the
credit of the proposed transferee which are used by the Sellers and their
affiliates with respect to underwriting mortgage loans of the same type as the
Mortgage Loans. If the credit of the proposed transferee does not meet such
underwriting criteria, the Interim Servicer diligently shall, to the extent
permitted by the Mortgage or the Mortgage Note and by applicable law, accelerate
the maturity of the Mortgage Loan.
Section 4.02 Satisfaction of Mortgages and Release of Mortgage
Files. Upon the payment in full of any Mortgage Loan, or the receipt by the
Interim Servicer of a notification that payment in full will be escrowed in a
manner customary for such purposes, the Interim Servicer shall notify the
Purchaser in the Monthly Remittance Advice as provided in Section 3.02, and may
request the release of any Mortgage Loan Documents from the Purchaser in
accordance with this Section 4.02 hereof.
If the Interim Servicer satisfies or releases a Mortgage without
first having obtained payment in full of the indebtedness secured by the
Mortgage or should the Interim Servicer otherwise prejudice any rights the
Purchaser may have under the mortgage instruments, upon written demand of the
Purchaser, the Interim Servicer shall repurchase the related Mortgage Loan at
the Repurchase Price by deposit thereof in the Custodial Account within 5
Business Days of receipt of such demand by the Purchaser. The Interim Servicer
shall maintain the Fidelity Bond and Errors and Omissions Insurance Policy as
provided for in Section 2.11 insuring the Interim Servicer against any loss it
may sustain with respect to any Mortgage Loan not satisfied in accordance with
the procedures set forth herein.
Section 4.03 Servicing Compensation. As compensation for its
services hereunder, the Interim Servicer shall be entitled to withdraw from the
Custodial Account or to retain from interest payments on the Mortgage Loans on
each Remittance Date the amount of its Servicing Fee. The Servicing Fee shall be
payable monthly and shall be computed on the basis of the same unpaid principal
balance and for the period respecting which any related interest payment on a
Mortgage Loan is computed. The Servicing Fee shall be payable only at the time
of and with respect to those Mortgage Loans for which payment is in fact made of
the entire amount of the Monthly Payment. The obligation of the Purchaser to pay
the Servicing Fee is limited to, and payable solely from, the interest portion
of such Monthly Payments collected by the Interim Servicer.
Additional servicing compensation in the form of Ancillary Income
shall be retained by the Interim Servicer to the extent not required to be
deposited in the Custodial Account. The Interim Servicer shall be required to
pay all expenses incurred by it in connection with its servicing activities
hereunder and shall not be entitled to reimbursement thereof except as
specifically provided for herein.
Section 4.04 Annual Statement as to Compliance. The Interim Servicer
shall deliver to the Purchaser, on or before March 1st each year beginning March
1, 2006, and on the related Transfer Date an Officer's Certificate, stating that
(i) a review of the activities of the Interim Servicer during the preceding
calendar year and of performance under this Agreement has been made under such
officer's supervision, and (ii) the Interim Servicer has complied fully with the
provisions of Article II and Article IV, and (iii) to the best of such officer's
knowledge, based on such review, the Interim Servicer has fulfilled all its
obligations with respect to the Mortgage Loans under this Agreement throughout
such year, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officer and the nature
and status thereof and the action being taken by the Interim Servicer to cure
such default.
Section 4.05 Annual Independent Public Accountants' Servicing
Report. On or before March 15th of each year beginning March 15, 2006, the
Interim Servicer, at its expense, shall cause a firm of independent public
accountants which is a member of the American Institute of Certified Public
Accountants to furnish a statement to each Purchaser to the effect that such
firm has examined certain documents and records relating to the servicing of the
Mortgage Loans and this Agreement and that such firm is of the opinion that the
provisions of Article II and Article III have been complied with, and that, on
the basis of such examination conducted substantially in compliance with the
Single Audit Program for Mortgage Bankers, nothing has come to their attention
which would indicate that such servicing has not been conducted in compliance
therewith, except for (i) such exceptions as such firm shall believe to be
immaterial, and (ii) such other exceptions as shall be set forth in such
statement.
Section 4.06 Right to Examine Interim Servicer Records. The
Purchaser shall have the right to examine and audit any and all of the books,
records, or other material information of the Interim Servicer, whether held by
the Interim Servicer or by another on its behalf, with respect to or concerning
this Agreement or the Mortgage Loans, during business hours or at such other
times as may be reasonable under applicable circumstances, upon reasonable
advance notice.
Section 4.07 Compliance with Xxxxx-Xxxxx-Xxxxxx Act of 1999. With
respect to each Mortgage Loan and the related Mortgagor, the Interim Servicer
shall comply with Title V of the Xxxxx-Xxxxx-Xxxxxx Act of 1999, as amended and
all applicable regulations and guidelines promulgated thereunder, and shall
provide all notices required thereunder using the notice language supplied by
the Purchaser unless the Interim Servicer reasonably objects to such language.
ARTICLE V
SELLER TO COOPERATE
Section 5.01 Provision of Information. During the term of this
Agreement, the Interim Servicer shall furnish to the Purchaser such periodic,
special, or other reports or information, whether or not provided for herein, as
is in accordance with Accepted Servicing Practices and shall be necessary,
reasonable, or appropriate with respect to the Purchaser or the purposes of this
Agreement. All such reports or information shall be provided by and in
accordance with all reasonable instructions and directions which the Purchaser
may give.
The Interim Servicer shall execute and deliver all such instruments
and take all such action as the Purchaser may reasonably request from time to
time, in order to effectuate the purposes and to carry out the terms of this
Agreement.
Section 5.02 Financial Statements; Servicing Facilities. In
connection with marketing the Mortgage Loans, the Purchaser may make available
to a prospective Purchaser its audited annual financial statements for the most
recently completed three fiscal years for which such a statement is available,
as well as unaudited quarterly financial statements for each quarter since the
end of the most recently completed fiscal year for which such statements are
available. If it has not already done so, the Interim Servicer shall furnish
promptly to the Purchaser copies of the statements specified above.
The Interim Servicer shall make available to the Purchaser or any
prospective Purchaser a knowledgeable financial or accounting officer for the
purpose of answering questions respecting recent developments affecting the
Interim Servicer or the financial statements of the Interim Servicer, and to
permit any prospective Purchaser to inspect the Interim Servicer's servicing
facilities for the purpose of satisfying such prospective Purchaser that the
Interim Servicer has the ability to service the Mortgage Loans as provided in
this Agreement.
ARTICLE VI
TERMINATION
Section 6.01 Damages. The Purchaser shall have the right at any time
to seek and recover from the Interim Servicer any damages or losses suffered by
it as a result of any failure by the Interim Servicer to observe or perform any
duties, obligations, covenants or agreements herein contained or contained in
the Purchase Agreement.
Section 6.02 Termination. This Agreement shall terminate with
respect to the Mortgage Loans or portion thereof transferred on the related
Transfer Date or on such other date as mutually agreed upon by the Purchaser and
the Interim Servicer. The Purchaser may elect to terminate this Agreement and
transfer the servicing from the Interim Servicer prior to the related Transfer
Date with respect to all or any portion of the Mortgage Loans upon the
occurrence of any breach by the Interim Servicer of the terms of this Agreement.
In the event the Interim Servicer is terminated pursuant to the
terms of this Agreement, the Interim Servicer agrees to cooperate with the
Purchaser and with any party designated as the successor servicer or subservicer
in transferring the servicing to such successor servicer. In addition, the
Interim Servicer shall be responsible for notifying the related mortgagors of
any transfer of servicing in accordance with the requirements of the RESPA and
the Xxxxxxxx Xxxxxxxx National Affordable Housing Act of 1990.
The Interim Servicer shall send out good-bye letters with respect to
the Mortgage Loans on or before the date which is 15 days prior to the related
Transfer Date or such other date as is mutually agreed upon by the Purchaser and
the Interim Servicer.
On or before the related Transfer Date or such other date specified
by the Purchaser in accordance with this paragraph (a) for the transfer of
servicing from the Interim Servicer, the Interim Servicer shall prepare, execute
and deliver to the successor entity designated by the Purchaser any and all
documents and other instruments, place in such successor's possession all
Mortgage Loan Documents necessary or appropriate to effect the purposes of such
notice of termination, including but not limited to the transfer and endorsement
or assignment of the Mortgage Loans and related documents, at the Interim
Servicer's sole expense. The Interim Servicer shall use its reasonable best
efforts in effecting the termination of the Interim Servicer's responsibilities
and rights hereunder and the transfer to the Successor Servicer. Interim
Servicer shall not be responsible for paying any boarding or transfer fees
charged by the Successor Servicer in connection with the transfer of servicing
on the related Transfer Date.
On the related Transfer Date for each Mortgage Loan, this Agreement,
except for Articles VI, VIII, IX and X which shall survive the related Transfer
Date, shall terminate.
(a) Servicing Advances; Unpaid Servicing Fees. On or before the
related Transfer Date, the Purchaser or its designee shall reimburse the Interim
Servicer for any unreimbursed Monthly Advances, Servicing Advances and accrued
but unpaid Servicing Fees with respect to any Mortgage Loan being transferred on
the related Transfer Date. Such amounts shall be netted out of funds transferred
to the successor servicer. This Section 6.02(a) shall survive the related
Transfer Date.
(b) Additional Termination Provisions. Notwithstanding and in
addition to the foregoing, in the event that (i) a Mortgage Loan becomes
delinquent for a period of 90 days or more (a "Delinquent Mortgage Loan") or
(ii) a Mortgage Loan becomes an REO Property, the Purchaser may at its election
terminate this Agreement with respect to such Delinquent Mortgage Loan or REO
Property, upon 15 days' written notice to the Interim Servicer.
ARTICLE VII
BOOKS AND RECORDS
Section 7.01 Possession of Servicing Files Prior to the Transfer
Date. Prior to the related Transfer Date, the contents of each Servicing File
are and shall be held in trust by the Interim Servicer for the benefit of the
Purchaser as the owner thereof. The Interim Servicer shall maintain in the
Servicing File a copy of the contents of each Mortgage File and the originals of
the documents in each Mortgage File not delivered to the Purchaser. The
possession of the Servicing File by the Interim Servicer is at the will of the
Purchaser for the sole purpose of servicing the related Mortgage Loan, pursuant
to this Agreement, and such retention and possession by the Interim Servicer is
in its capacity as Servicer only and at the election of the Purchaser. The
Interim Servicer shall release its custody of the contents of any Servicing File
only in accordance with written instructions from the Purchaser, unless such
release is required as incidental to the Interim Servicer's servicing of the
Mortgage Loans pursuant to this Agreement, or is in connection with a repurchase
of any Mortgage Loan pursuant to the Purchase Agreement.
The Interim Servicer shall be responsible for maintaining, and shall
maintain, a complete set of books and records for each Mortgage Loan which shall
be marked clearly to reflect the ownership of each Mortgage Loan by the
Purchaser. In particular, the Interim Servicer shall maintain in its possession,
available for inspection by the Purchaser or its designee, and shall deliver to
the Purchaser or its designee upon demand, evidence of compliance with all
federal, state and local laws, rules and regulations, including but not limited
to documentation as to the method used in determining the applicability of the
provisions of the Flood Disaster Protection Act of 1973, as amended, to the
Mortgaged Property, documentation evidencing insurance coverage and periodic
inspection reports as required by Section 2.12.
The Interim Servicer shall keep at its servicing office books and
records in which, subject to such reasonable regulations as it may prescribe,
the Interim Servicer shall note transfers of Mortgage Loans. No transfer of a
Mortgage Loan may be made unless such transfer is in compliance with the terms
hereof. For the purposes of this Agreement, the Interim Servicer shall be under
no obligation to deal with any person with respect to this Agreement or the
Mortgage Loans unless the books and records show such person as the owner of the
Mortgage Loan. The Purchaser may, subject to the terms of this Agreement, sell
or transfer one or more of the Mortgage Loans. The Purchaser also shall advise
the Interim Servicer of the transfer. Upon receipt of notice of the transfer,
the Interim Servicer shall mark its books and records to reflect the ownership
of the Mortgage Loans of such assignee, and shall release the previous Purchaser
from its obligations hereunder with respect to the Mortgage Loans sold or
transferred.
ARTICLE VIII
INDEMNIFICATION AND ASSIGNMENT
Section 8.01 Indemnification. The Interim Servicer agrees to
indemnify the Purchaser and any successor servicer and hold them harmless
against any and all claims, losses, damages, penalties, fines, and forfeitures,
including, but not limited to reasonable and necessary legal fees and related
costs, judgments, and any other costs, fees and expenses that the Purchaser may
sustain in any way related to the failure of Interim Servicer to (a) perform its
duties and service the Mortgage Loans in compliance with the terms of this
Agreement and/or (b) comply with applicable law. Additionally, the Interim
Servicer shall indemnify the Purchaser, each Affiliate designated by the
Purchaser and each Person who controls the Purchaser or such Affiliate and hold
each of them harmless from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and any other costs, fees and expenses that each of them may sustain in any way
related to any information provided by or on behalf of the Interim Servicer
regarding the Interim Servicer, the Interim Servicer's servicing practices or
performance, the Mortgage Loans or the Underwriting Guidelines set forth in any
offering document prepared in connection with any sale or securitization of any
Mortgage Loans. The Interim Servicer immediately shall notify the Purchaser if a
claim is made by a third party with respect to this Agreement, assume (with the
prior written consent of the Purchaser) the defense of any such claim and pay
all expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
the Purchaser in respect of such claim. The Interim Servicer shall follow any
written instructions received from the Purchaser in connection with such claim.
The Purchaser promptly shall reimburse and indemnify the Interim Servicer for
all amounts advanced by it pursuant to the preceding sentence except when the
claim is in any way related to the Interim Servicer's indemnification pursuant
to the Purchase Agreement, or the failure of the Interim Servicer to (a) service
and administer the Mortgage Loans in compliance with the terms of this Agreement
and/or (b) comply with applicable law.
Purchaser shall use it reasonable best efforts to assign to the
Interim Servicer the indemnity provided by the Successor Servicer in the
servicing agreement between the Purchaser and such Successor Servicer.
Section 8.02 Limitation on Liability of Interim Servicer and Others.
Neither the Interim Servicer nor any of the directors, officers, employees or
agents of the Interim Servicer shall be under any liability to the Purchaser for
any action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, or for errors in judgment, provided, however, that
this provision shall not protect the Interim Servicer or any such person against
any breach of warranties or representations made herein, or failure to perform
its obligations in compliance with any standard of care set forth in this
Agreement, or any liability which would otherwise be imposed by reason of any
breach of the terms and conditions of this Agreement. The Interim Servicer and
any director, officer, employee or agent of the Interim 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 Interim
Servicer shall not be under any obligation to appear in, prosecute or defend any
legal action which is not incidental to its duties to service the Mortgage loans
in accordance with this Agreement and which in its opinion may involve it in any
expense or liability, provided, however, that the Interim Servicer may, with the
consent of the Purchaser, undertake any such action which it may deem necessary
or desirable in respect to this Agreement and the rights and duties of the
parties hereto. In such event, the Interim Servicer shall be entitled to
reimbursement from the Purchaser of the reasonable legal expenses and costs of
such action.
Section 8.03 Limitation on Resignation and Assignment by Interim
Servicer. Except as provided in Section 6.02, the Purchaser has entered into
this Agreement with the Interim Servicer and subsequent Purchasers will purchase
the Mortgage Loans in reliance upon the independent status of the Interim
Servicer, and the representations as to the adequacy of its servicing
facilities, plant, personnel, records and procedures, its integrity, reputation
and financial standing, and the continuance thereof. Therefore, the Interim
Servicer shall neither assign this Agreement or the servicing hereunder or
delegate its rights or duties hereunder or any portion hereof or sell or
otherwise dispose of all or substantially all of its property or assets prior to
the final Transfer Date without the prior written consent of the Purchaser,
which consent shall be granted or withheld in the sole discretion of the
Purchaser.
The Interim Servicer shall not resign from the obligations and
duties hereby imposed on it with respect to any Mortgage Loan prior to the
related Transfer Date except by mutual consent of the Interim Servicer and the
Purchaser or upon the determination that its duties hereunder are no longer
permissible under applicable law and such incapacity cannot be cured by the
Interim Servicer. Any such determination permitting the resignation of the
Interim Servicer shall be evidenced by an Opinion of Counsel to such effect
delivered to the Purchaser which Opinion of Counsel shall be in form and
substance acceptable to the Purchaser. No such resignation shall become
effective until a successor shall have assumed the Interim Servicer's
responsibilities and obligations hereunder in the manner provided in Section
6.02.
Without in any way limiting the generality of this Section 8.03, in
the event that the Interim Servicer either shall assign this Agreement or the
servicing responsibilities hereunder or delegate its duties hereunder or any
portion thereof or sell or otherwise dispose of all or substantially all of its
property or assets, without the prior written consent of the Purchaser, then the
Purchaser shall have the right to terminate this Agreement upon notice given as
set forth in Section 6.02, without any payment of any penalty or damages and
without any liability whatsoever to the Interim Servicer or any third party.
Section 8.04 Assignment by Purchaser. The Purchaser shall have the
right, without the consent of the Interim Servicer, to assign, in whole or in
part, its interest under this Agreement with respect to some or all of the
Mortgage Loans, and designate any person to exercise any rights of the Purchaser
hereunder. Upon such assignment of rights and assumption of obligations, the
assignee or designee shall accede to the rights and obligations hereunder of the
Purchaser with respect to such Mortgage Loans and the Purchaser as assignor
shall be released from all obligations hereunder with respect to such Mortgage
Loans from and after the date of such assignment and assumption. All references
to the Purchaser in this Agreement shall be deemed to include its assignee or
designee with respect to such Mortgage Loans. Notwithstanding any such
assignment, Interim Servicer shall remain entitled to the Servicing Fee and
other compensation hereunder payable up through and including the Transfer Date,
which, when added to any servicing compensation previously paid, shall not be
less than 90 days of compensation.
ARTICLE IX
REPRESENTATIONS AND WARRANTIES OF SELLER
The Interim Servicer warrants and represents to, and covenants and
agrees with, the Purchaser on each Closing Date as follows:
Section 9.01 Due Organization and Authority. The Interim Servicer is
a corporation duly organized, validly existing and in good standing under the
laws of the state of its incorporation and has all licenses necessary to carry
on its business as now being conducted and is licensed, qualified and in good
standing in each state where a Mortgaged Property is located if the laws of such
state require licensing or qualification in order to conduct business of the
type conducted by the Interim Servicer, and in any event the Interim Servicer is
in compliance with the laws of any such state to the extent necessary to ensure
the enforceability of the related Mortgage Loan in accordance with the terms of
this Agreement; the Interim Servicer has the full corporate power and authority
to execute and deliver this Agreement and to perform in accordance herewith; the
execution, delivery and performance of this Agreement (including all instruments
or transfer to be delivered pursuant to this Agreement) by the Interim Servicer
and the consummation of the transactions contemplated hereby have been duly and
validly authorized; this Agreement evidences the valid, binding and enforceable
obligation of the Interim Servicer; and all requisite corporate action has been
taken by the Interim Servicer to make this Agreement valid and binding upon the
Interim Servicer in accordance with its terms;
Section 9.02 Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in the ordinary course of
business of the Interim Servicer;
Section 9.03 No Conflicts. Neither the execution and delivery of
this Agreement, nor the fulfillment of or compliance with the terms and
conditions of this Agreement, will conflict with or result in a breach of any of
the terms, conditions or provisions of the Interim Servicer's charter or by-laws
or any legal restriction or any agreement or instrument to which the Interim
Servicer is now a party or by which it is bound, or constitute a default or
result in an acceleration under any of the foregoing, or result in the violation
of any law, rule, regulation, order, judgment or decree to which the Interim
Servicer or its property is subject, or impair the ability of the Purchaser to
realize on the Mortgage Loans, or impair the value of the Mortgage Loans;
Section 9.04 Ability to Service. The Interim Servicer is a
seller/servicer of residential mortgage loans, with the facilities, procedures,
and experienced personnel necessary for the sound servicing of mortgage loans of
the same type as the Mortgage Loans;
Section 9.05 Ability to Perform. The Interim Servicer does not
believe, nor does it have any reason or cause to believe, that it cannot perform
each and every covenant contained in this Agreement;
Section 9.06 No Litigation Pending. There is no action, suit,
proceeding or investigation pending or, to the best of the Seller's knowledge,
threatened against the Interim Servicer which, either in any one instance or in
the aggregate, may result in any material adverse change in the business,
operations, financial condition, properties or assets of the Interim Servicer,
or in any material impairment of the right or ability of the Interim Servicer to
carry on its business substantially as now conducted, or in any material
liability on the part of the Interim Servicer, or which would draw into question
the validity of this Agreement or the Mortgage Loans or of any action taken or
to be taken in connection with the obligations of the Interim Servicer
contemplated herein, or which would be likely to impair materially the ability
of the Interim Servicer to perform under the terms of this Agreement;
Section 9.07 No Consent Required. No consent, approval,
authorization or order of any court or governmental agency or body is required
for the execution, delivery and performance by the Interim Servicer of or
compliance by the Interim Servicer with this Agreement or the Servicing of the
Mortgage Loans as evidenced by the consummation of the transactions contemplated
by this Agreement, or if required, such approval has been obtained prior to the
related Closing Date;
Section 9.08 No Untrue Information. Neither this Agreement nor any
statement, report or other document furnished or to be furnished pursuant to
this Agreement or in connection with the transactions contemplated hereby
contains any untrue statement of fact.
Section 9.09 Prior Servicing. Prior to the date hereof, each
Mortgage Loan has been serviced in all material respects in strict compliance
with Accepted Servicing Practices and the Interim Servicer has reported the
Mortgagor credit files to each of the three credit repositories on a monthly
basis in a timely manner.
ARTICLE X
DEFAULT
Section 10.01 Events of Default. The following shall constitute an
Event of Default under this Agreement on the part of the Interim Servicer:
(a) any failure by the Interim Servicer to remit to the Purchaser
any payment required to be made under the terms of this Agreement which
continues unremedied for a period of two Business Days after the date upon which
written notice of such failure, requiring the same to be remedied, shall have
been given to the Interim Servicer by the Purchaser; or
(b) the failure by the Interim Servicer duly to observe or perform
in any material respect any other of the covenants or agreements on the part of
the Interim Servicer set forth in this Agreement which continues unremedied for
a period of 30 days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Interim Servicer
by the Purchaser; or
(c) a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Interim Servicer and such decree or
order shall have remained in force undischarged or unstayed for a period of 60
days; or
(d) the Interim Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or relating to
the Interim Servicer or of or relating to all or substantially all of its
property; or
(e) the Interim Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its obligations; or
(f) the Interim Servicer fails to maintain a minimum net worth of
$25,000,000; or
(g) the Interim Servicer attempts to assign its right to servicing
compensation hereunder or the Interim Servicer attempts, without the consent of
the Purchaser, to sell or otherwise dispose of all or substantially all of its
property or assets or to assign this Agreement or the servicing responsibilities
hereunder or to delegate its duties hereunder or any portion thereof.
In each and every such case, so long as an Event of Default shall
not have been remedied, in addition to whatever rights the Purchaser may have at
law or equity to damages, including injunctive relief and specific performance,
the Purchaser, by notice in writing to the Interim Servicer, may terminate all
the rights and obligations of the Interim Servicer under this Agreement and in
and to the Mortgage Loans and the proceeds thereof.
Upon receipt by the Interim Servicer of such written notice, all
authority and power of the Interim Servicer under this Agreement, whether with
respect to the Mortgage Loans or otherwise, shall pass to and be vested in the
successor appointed pursuant to Section 6.02.
Section 10.02 Waiver of Defaults. By a written notice, the Purchaser
may waive any default by the Interim Servicer in the performance of its
obligations hereunder and its consequences. Upon any waiver of a past default,
such default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been remedied for every purpose of this Agreement. No
such waiver shall extend to any subsequent or other default or impair any right
consequent thereon except to the extent expressly so waived.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Notices. All notices, requests, demands and other
communications which are required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been duly given upon the
delivery or mailing thereof, as the case may be, sent by registered or certified
mail, return receipt requested:
(a) If to Purchaser to:
Xxxxxxx Xxxxx Mortgage Company
000 0xx Xxxxxx Xxxxx, Xxxxx 000X
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxxxxx
(b) If to Interim Servicer to:
Fremont Investment & Loan
0000 Xxxxx XxxxxxXxxxxx
Xxxxxxx, XX 00000
Attention: Vice President - Servicing Administration
Section 11.02 Waivers. Either the Interim Servicer or Purchaser may
upon consent of all parties, by written notice to the others:
(a) Waive compliance with any of the terms, conditions or covenants
required to be complied with by the others hereunder; and
(b) Waive or modify performance of any of the obligations of the
others hereunder.
The waiver by any party hereto of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any other subsequent
breach.
Section 11.03 Entire Agreement; Amendment. This Agreement and the
Purchase Agreement constitute the entire agreement between the parties with
respect to servicing of the Mortgages during the related Interim Period. This
Agreement may be amended and any provision hereof waived, but, only in writing
signed by the party against whom such enforcement is sought.
Section 11.04 Execution; Binding Effect. This Agreement may be
executed in one or more counterparts and by the different parties hereto on
separate counterparts, each of which, when so executed, shall be deemed to be an
original; such counterparts, together, shall constitute one and the same
agreement. Subject to Section 8.03, this Agreement shall inure to the benefit of
and be binding upon the Interim Servicer and the Purchaser and their respective
successors and assigns.
Section 11.05 Headings. Headings of the Articles and Sections in
this Agreement are for reference purposes only and shall not be deemed to have
any substantive effect.
Section 11.06 Applicable Law. This Agreement shall be construed in
accordance with the laws of the State of New York.
Section 11.07 Relationship of Parties. Nothing herein contained
shall be deemed or construed to create a partnership or joint venture between
the parties. The duties and responsibilities of the Interim Servicer shall be
rendered by them as independent contractors and not as an agent of Purchaser.
The Interim Servicer shall have full control of all of its acts, doings,
proceedings, relating to or requisite in connection with the discharge of its
duties and responsibilities under this Agreement.
Section 11.08 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be held
invalid for any reason whatsoever, 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.
Section 11.09 Recordation of Assignments of Mortgage. To the extent
permitted by applicable law, each of the Assignments of Mortgage is subject to
recordation in all appropriate public offices for real property records in all
the counties or other comparable jurisdictions in which any or all of the
Mortgaged Properties are situated, and in any other appropriate public recording
office or elsewhere, such recordation to be effected at the Interim Servicer's
expense in the event recordation is either necessary under applicable law or
requested by the Purchaser at its sole option.
ARTICLE XII
COMPLIANCE WITH REGULATION AB
Section 12.01 Intent of the Parties; Reasonableness.
The Purchaser and the Interim Servicer acknowledge and agree that
the purpose of Article XII of this Agreement is to facilitate compliance by the
Purchaser and any Depositor with the provisions of Regulation AB and related
rules and regulations of the Commission. Although Regulation AB is applicable by
its terms only to offerings of asset-backed securities that are registered under
the Securities Act, the Company acknowledges that investors in privately offered
securities may require that the Purchaser or any Depositor provide comparable
disclosure in unregistered offerings. References in this Agreement to compliance
with Regulation AB include provision of comparable disclosure in private
offerings.
Neither the Purchaser nor any Depositor shall 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
thereunder (or the provision in a private offering of disclosure comparable to
that required under the Securities Act). The Interim Servicer 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 asset-backed securities markets, advice of
counsel, or otherwise, and agrees to comply with requests made by the Purchaser
or any Depositor in good faith for delivery of information under these
provisions on the basis of evolving interpretations of Regulation AB. In
connection with any Securitization Transaction, the Interim Servicer shall
cooperate fully with the Purchaser to deliver to the Purchaser (including any of
its assignees or designees) and any Depositor, any and all statements, reports,
certifications, records and any other information necessary in the good faith
determination of the Purchaser or any Depositor to permit the Purchaser or such
Depositor to comply with the provisions of Regulation AB, together with such
disclosures relating to the Interim Servicer any Subservicer and the Mortgage
Loans, or the servicing of the Mortgage Loans, reasonably believed by the
Purchaser or any Depositor to be necessary in order to effect such compliance.
The Purchaser (including any of its assignees or designees) shall
cooperate with the Interim Servicer by providing timely notice of requests for
information under these provisions and by reasonably limiting such requests to
information required, in the Purchaser's reasonable judgment, to comply with
Regulation AB.
Section 12.02 Additional Representations and Warranties of the
Interim Servicer.
(a) The Interim Servicer shall be deemed to represent to the
Purchaser and to any Depositor, as of the date on which information is first
provided to the Purchaser or any Depositor under Section 12.03 that, except as
disclosed in writing to the Purchaser or such Depositor prior to such date: (i)
the Interim Servicer is not aware and has not received notice that any default,
early amortization or other performance triggering event has occurred as to any
other securitization due to any act or failure to act of the Interim Servicer;
(ii) the Interim Servicer has not been terminated as servicer in a residential
mortgage loan securitization, either due to a servicing default or to
application of a servicing performance test or trigger; (iii) no material
noncompliance with the applicable servicing criteria with respect to other
securitizations of residential mortgage loans involving the Interim Servicer as
servicer has been disclosed or reported by the Interim Servicer; (iv) no
material changes to the Interim Servicer's policies or procedures with respect
to the servicing function it will perform under this Agreement and any
Reconstitution Agreement for mortgage loans of a type similar to the Mortgage
Loans have occurred during the three-year period immediately preceding the
related Securitization Transaction; (v) there are no aspects of the Interim
Servicer's financial condition that could have a material adverse effect on the
performance by the Interim Servicer of its servicing obligations under this
Agreement or any Reconstitution Agreement; (vi) there are no material legal or
governmental proceedings pending (or known to be contemplated) against the
Interim Servicer or any Subservicer; and (vii) there are no affiliations,
relationships or transactions relating to the Interim Servicer or any
Subservicer with respect to any Securitization Transaction and any party thereto
identified by the related Depositor of a type described in Item 1119 of
Regulation AB.
(b) If so requested by the Purchaser or any Depositor on any date
following the date on which information is first provided to the Purchaser or
any Depositor under Section 12.03, the Interim Servicer 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
request, provide reasonably adequate disclosure of the pertinent facts, in
writing, to the requesting party.
Section 12.03 Information to Be Provided by the Interim Servicer.
In connection with any Securitization Transaction the Interim
Servicer shall (i) within five Business Days following request by the Purchaser
or any Depositor, provide to the Purchaser and such Depositor (or cause each
Subservicer to provide), in writing and in form and substance reasonably
satisfactory to the Purchaser and such Depositor, the information and materials
specified in paragraphs (a), (c) and (f) of this Section, and (ii) as promptly
as practicable following notice to or discovery by the Interim Servicer, provide
to the Purchaser and any Depositor (in writing and in form and substance
reasonably satisfactory to the Purchaser and such Depositor) the information
specified in paragraph (d) of this Section.
(a) If so requested by the Purchaser or any Depositor, the Interim
Servicer shall provide such information regarding each each Subservicer, as is
requested for the purpose of compliance with Items 1103(a)(1), 1117 and 1119 of
Regulation AB. Such information shall include, at a minimum:
1) [Reserved];
2) [Reserved];
3) a description of any material legal or governmental proceedings
pending (or known to be contemplated) against the Interim Servicer
and each Subservicer; and
4) a description of any affiliation or relationship between the Interim
Servicer, each Subservicer and any of the following parties to a
Securitization Transaction, as such parties are identified to the
Interim Servicer by the Purchaser or any Depositor in writing in
advance of such Securitization Transaction:
a) the sponsor;
b) the depositor;
c) the issuing entity;
d) any servicer;
e) any trustee;
f) any originator;
g) any significant obligor;
h) any enhancement or support provider; and
i) any other material transaction party.
(b) [Reserved].
(c) If so requested by the Purchaser or any Depositor, the Interim
Servicer shall provide such information regarding the Interim Servicer, as
servicer of the Mortgage Loans, and each Subservicer (each of the Interim
Servicer and each Subservicer, for purposes of this paragraph, a "Servicer"), as
is requested for the purpose of compliance with Items 1108 of Regulation AB.
Such information shall include, at a minimum:
1) the Servicer's form of organization;
2) a description of how long the Servicer has been servicing
residential mortgage loans; a general discussion of the Servicer's
experience in servicing assets of any type as well as a more
detailed discussion of the Servicer's experience in, and procedures
for, the servicing function it will perform under this Agreement and
any Reconstitution Agreements; information regarding the size,
composition and growth of the Servicer's portfolio of residential
mortgage loans of a type similar to the Mortgage Loans and
information on factors related to the Servicer that may be material,
in the good faith judgment of the Purchaser or any Depositor, to any
analysis of the servicing of the Mortgage Loans or the related
asset-backed securities, as applicable, including, without
limitation:
a) whether any prior securitizations of mortgage loans of a type
similar to the Mortgage Loans involving the Servicer have defaulted
or experienced an early amortization or other performance triggering
event because of servicing during the three-year period immediately
preceding the related Securitization Transaction;
b) the extent of outsourcing the Servicer utilizes;
c) whether there has been previous disclosure of material noncompliance
with the applicable servicing criteria with respect to other
securitizations of residential mortgage loans involving the Servicer
as a servicer during the three-year period immediately preceding the
related Securitization Transaction;
d) whether the Servicer has been terminated as servicer in a
residential mortgage loan securitization, either due to a servicing
default or to application of a servicing performance test or
trigger; and
e) such other information as the Purchaser or any Depositor may
reasonably request for the purpose of compliance with Item
1108(b)(2) of Regulation AB;
3) a description of any material changes during the three-year period
immediately preceding the related Securitization Transaction to the
Servicer's policies or procedures with respect to the servicing
function it will perform under this Agreement and any Reconstitution
Agreements for mortgage loans of a type similar to the Mortgage
Loans;
4) information regarding the Servicer's financial condition, to the
extent that there is a material risk that an adverse financial event
or circumstance involving the Servicer could have a material adverse
effect on the performance by the Interim Servicer of its servicing
obligations under this Agreement or any Reconstitution Agreement;
5) information regarding advances made by the Servicer on the Mortgage
Loans and the Servicer's overall servicing portfolio of residential
mortgage loans for the three-year period immediately preceding the
related Securitization Transaction, which may be limited to a
statement by an authorized officer of the Servicer to the effect
that the Servicer has made all advances required to be made on
residential mortgage loans serviced by it during such period, or, if
such statement would not be accurate, information regarding the
percentage and type of advances not made as required, and the
reasons for such failure to advance;
6) a description of the Servicer's processes and procedures designed to
address any special or unique factors involved in servicing loans of
a similar type as the Mortgage Loans;
7) a description of the Servicer's processes for handling
delinquencies, losses, bankruptcies and recoveries, such as through
liquidation of mortgaged properties, sale of defaulted mortgage
loans or workouts; and
8) information as to how the Servicer defines or determines
delinquencies and charge-offs, including the effect of any grace
period, re-aging, restructuring, partial payments considered current
or other practices with respect to delinquency and loss experience.
(d) If so requested by the Purchaser or any Depositor for the
purpose of satisfying its reporting obligation under the Exchange Act with
respect to any class of asset-backed securities, the Interim Servicer shall (or
shall cause each Subservicer to) (i) notify the Purchaser and any Depositor in
writing of (A) any material litigation or governmental proceedings pending
against the Interim Servicer or any Subservicer and (B) any affiliations or
relationships that develop following the closing date of a Securitization
Transaction between the Interim Servicer or any Subservicer and any of the
parties specified in clause (D) of paragraph (a) of this Section (and any other
parties identified in writing by the requesting party) with respect to such
Securitization Transaction, and (ii) provide to the Purchaser and any Depositor
a description of such proceedings, affiliations or relationships.
(e) As a condition to the succession to the Interim Servicer or any
Subservicer as servicer or subservicer under this Agreement or any
Reconstitution Agreement by any Person (i) into which the Interim Servicer or
such Subservicer may be merged or consolidated, or (ii) which may be appointed
as a successor to the Interim Servicer or any Subservicer, the Interim Servicer
shall provide to the Purchaser and any Depositor, at least 15 calendar days
prior to the effective date of such succession or appointment, (x) written
notice to the Purchaser and any Depositor of such succession or appointment and
(y) in writing and in form and substance reasonably satisfactory to the
Purchaser and such Depositor, all information reasonably requested by the
Purchaser or any Depositor in order to comply with its reporting obligation
under Item 6.02 of Form 8-K with respect to any class of asset-backed
securities.
(f) In addition to such information as the Interim Servicer, as
servicer, is obligated to provide pursuant to other provisions of this
Agreement, if so requested by the Purchaser or any Depositor, the Interim
Servicer shall provide such information regarding the performance or servicing
of the Mortgage Loans as is reasonably required by the Purchaser or any
Depositor to facilitate preparation of distribution reports in accordance with
Item 1121 of Regulation AB and to permit the Purchaser or such Depositor to
comply with the provisions of Regulation AB relating to Static Pool Information
regarding the performance of the Mortgage Loans on the basis of the Purchaser's
or such Depositor's reasonable, good faith interpretation of the requirements of
Item 1105(a)(1)-(3) of Regulation AB (including without limitation as to the
format and content of such Static Pool Information). Such information shall be
provided concurrently with the monthly reports otherwise required to be
delivered by the Servicer under this Agreement, commencing with the first such
report due not less than ten (10) Business Days following such request.
Section 12.04 Servicer Compliance Statement.
On or before March 1 of each calendar year, commencing in 2007, the
Interim Servicer shall deliver to the Purchaser and any Depositor a statement of
compliance addressed to the Purchaser and such Depositor and signed by an
authorized officer of the Interim Servicer, to the effect that (i) a review of
the Interim Servicer's activities during the immediately preceding calendar year
(or applicable portion thereof) and of its performance under this Agreement and
any applicable Reconstitution Agreement during such period has been made under
such officer's supervision, and (ii) to the best of such officers' knowledge,
based on such review, the Interim Servicer has fulfilled all of its obligations
under this Agreement and any applicable Reconstitution Agreement in all material
respects throughout such calendar year (or applicable portion thereof) or, if
there has been a failure to fulfill any such obligation in any material respect,
specifically identifying each such failure known to such officer and the nature
and the status thereof.
Section 12.05 Report on Assessment of Compliance and Attestation.
(a) On or before March 1 of each calendar year, commencing in 2007,
the Interim Servicer shall:
(i) deliver to the Purchaser and any Depositor a report (in form and
substance reasonably satisfactory to the Purchaser and such Depositor)
regarding the Interim Servicer's assessment of compliance with the
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 addressed to the Purchaser and such
Depositor and signed by an authorized officer of the Interim Servicer, and
shall address each of the Servicing Criteria specified on a certification
substantially in the form of Exhibit 7 hereto delivered to the Purchaser
concurrently with the execution of this Agreement;
(ii) deliver to the Purchaser and any Depositor a report of a
registered public accounting firm reasonably acceptable to the Purchaser
and such Depositor that attests to, and reports on, the assessment of
compliance made by the Interim Servicer 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;
(iii) cause each Subservicer, and each Subcontractor determined by
the Company pursuant to Section 12.06(b) to be "participating in the
servicing function" within the meaning of Item 1122 of Regulation AB, to
deliver to the Purchaser and any Depositor an assessment of compliance and
accountants' attestation as and when provided in paragraphs (a) and (b) of
this Section; and
(iv) if requested by the Purchaser or any Depositor not later than
February 1 of the calendar year in which such certification is to be
delivered, deliver to the Purchaser, any Depositor and any other Person
that will be responsible for signing the certification (a "Sarbanes
Certification") required by Rules 13a-14(d) and 15d-14(d) under the
Exchange Act (pursuant to Section 302 of the Xxxxxxxx-Xxxxx Act of 2002)
on behalf of an asset-backed issuer with respect to a Securitization
Transaction a certification in the form attached hereto as Exhibit 6.
The Interim Servicer acknowledges that the parties identified in
clause (a)(iv) above may rely on the certification provided by the Interim
Servicer pursuant to such clause in signing a Sarbanes Certification and filing
such with the Commission. Neither the Purchaser nor any Depositor will request
delivery of a certification under clause (a)(iv) above, unless a Depositor is
required under the Exchange Act to file an annual report on Form 10-K with
respect to an issuing entity whose asset pool includes Mortgage Loans.
(b) Each assessment of compliance provided by a Subservicer pursuant
to Section 12.05(a)(i) shall address each of the Servicing Criteria specified on
a certification substantially in the form of Exhibit 7 hereto delivered to the
Purchaser concurrently with the execution of this Agreement or, in the case of a
Subservicer subsequently appointed as such, on or prior to the date of such
appointment. An assessment of compliance provided by a Subcontractor pursuant to
Section 12.05(a)(iii) need not address any elements of the Servicing Criteria
other than those specified by the Interim Servicer pursuant to Section 12.06.
Section 12.06 Use of Subservicers and Subcontractors.
The Interim Servicer shall not hire or otherwise utilize the
services of any Subservicer to fulfill any of the obligations of the Interim
Servicer as servicer under this Agreement or any Reconstitution Agreement unless
the Interim Servicer complies with the provisions of paragraph (a) of this
Section. The Interim Servicer shall not hire or otherwise utilize the services
of any Subcontractor, and shall not permit any Subservicer to hire or otherwise
utilize the services of any Subcontractor, to fulfill any of the obligations of
the Interim Servicer as servicer under this Agreement or any Reconstitution
Agreement unless the Interim Servicer complies with the provisions of paragraph
(b) of this Section.
(a) It shall not be necessary for the Interim Servicer to seek the
consent of the Purchaser or any Depositor to the utilization of any Subservicer.
The Interim Servicer shall cause any Subservicer used by the Interim Servicer
(or by any Subservicer) for the benefit of the Purchaser and any Depositor to
comply with the provisions of this Section and with Sections 12.02, 12.03(c) and
(e), 12.04, 12.05 and 12.07 of this Agreement to the same extent as if such
Subservicer were the Interim Servicer, and to provide the information required
with respect to such Subservicer under Section 12.03(d) of this Agreement. The
Interim Servicer shall be responsible for obtaining from each Subservicer and
delivering to the Purchaser and any Depositor any servicer compliance statement
required to be delivered by such Subservicer under Section 12.04, any assessment
of compliance and attestation required to be delivered by such Subservicer under
Section 12.05 and any certification required to be delivered to the Person that
will be responsible for signing the Sarbanes Certification under Section 12.05
as and when required to be delivered.
(b) It shall not be necessary for the Interim Servicer to seek the
consent of the Purchaser or any Depositor to the utilization of any
Subcontractor. The Interim Servicer shall promptly upon request provide to the
Purchaser and any Depositor (or any designee of the Depositor, such as a master
servicer or administrator) a written description (in form and substance
satisfactory to the Purchaser and such Depositor) of the role and function of
each Subcontractor utilized by the Interim Servicer or any Subservicer,
specifying (i) the identity of each such Subcontractor, (ii) which (if any) of
such Subcontractors are "participating in the servicing function" within the
meaning of Item 1122 of Regulation AB, and (iii) which elements of the Servicing
Criteria will be addressed in assessments of compliance provided by each
Subcontractor identified pursuant to clause (ii) of this paragraph.
As a condition to the utilization of any Subcontractor determined to
be "participating in the servicing function" within the meaning of Item 1122 of
Regulation AB, the Interim Servicer shall cause any such Subcontractor used by
the Interim Servicer (or by any Subservicer) for the benefit of the Purchaser
and any Depositor to comply with the provisions of Sections 12.05 and 12.07 of
this Agreement to the same extent as if such Subcontractor were the Interim
Servicer. The Interim Servicer shall be responsible for obtaining from each
Subcontractor and delivering to the Purchaser and any Depositor any assessment
of compliance and attestation required to be delivered by such Subcontractor
under Section 12.05, in each case as and when required to be delivered.
Section 12.07 Indemnification; Remedies.
(a) The Interim Servicer shall indemnify the Purchaser, each
affiliate of the Purchaser, and each of the following parties participating in a
Securitization Transaction: each sponsor and issuing entity; each Person
responsible for the preparation, execution or filing of any report required to
be filed with the Commission with respect to such Securitization Transaction, or
for execution of a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d)
under the Exchange Act with respect to such Securitization Transaction; each
broker dealer acting as underwriter, placement agent or initial purchaser, each
Person who controls any of such parties or the Depositor (within the meaning of
Section 15 of the Securities Act and Section 20 of the Exchange Act); and the
respective present and former directors, officers, employees and agents of each
of the foregoing and of the Depositor, 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)1) any untrue statement of a material fact contained or alleged
to be contained in any information, report, certification, accountants'
letter or other material provided in written or electronic form under this
Article XII by or on behalf of the Interim Servicer, or provided under
this Article XII by or on behalf of any Subservicer or Subcontractor
(collectively, the "Servicer Information"), or 2) the omission or alleged
omission to state in the Servicer Information a material fact required to
be stated in the Servicer Information or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, by way of clarification, that clause
(B) of this paragraph shall be construed solely by reference to the
Servicer Information and not to any other information communicated in
connection with a sale or purchase of securities, without regard to
whether the Servicer Information or any portion thereof is presented
together with or separately from such other information;
(ii) any failure by the Interim Servicer, any Subservicer or any
Subcontractor to deliver any information, report, certification,
accountants' letter or other material when and as required under this
Article XII, including (except as provided below) any failure by the
Interim Servicer to identify pursuant to Section 12.06(b) any
Subcontractor "participating in the servicing function" within the meaning
of Item 1122 of Regulation AB; or
(iii) any breach by the Interim Servicer of a representation or
warranty set forth in Section 12.02(a) or in a writing furnished pursuant
to Section 12.02(b) and made as of a date prior to the closing date of the
related Securitization Transaction, to the extent that such breach is not
cured by such closing date, or any breach by the Interim Servicer of a
representation or warranty in a writing furnished pursuant to Section
12.02(b) to the extent made as of a date subsequent to such closing date.
In the case of any failure of performance described in clause
(a)(ii) of this Section, the Interim Servicer shall promptly reimburse the
Purchaser, any Depositor, as applicable, and each Person responsible for the
preparation, execution or filing of any report required to be filed with the
Commission with respect to such Securitization Transaction, or for execution of
a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange
Act with respect to such Securitization Transaction, for all costs reasonably
incurred by each such party in order to obtain the information, report,
certification, accountants' letter or other material not delivered as required
by the Interim Service, any Subservicer or any Subcontractor.
(b) (i) Any failure by the Seller, Interim Servicer, any Subservicer
or any Subcontractor to deliver any information, report, certification,
accountants' letter or other material when and as required under this Article
XII or under Section 32 of the Purchase Agreement, or any breach by the Interim
Servicer of a representation or warranty set forth in Section 12.02(a) or in a
writing furnished pursuant to Section 12.02(b) or any breach by the Seller of a
representation or warranty set forth in Section 32.02(a) of the Purchase
Agreement or in a writing furnished pursuant to Section 32.02(b) of the Purchase
Agreement and made as of a date prior to the closing date of the related
Securitization Transaction, to the extent that such breach is not cured by such
closing date, or any breach by the Interim Servicer of a representation or
warranty in a writing furnished pursuant to Section 12.02(b) or any breach by
the Seller of a representation or warranty in a writing furnished pursuant to
Section 32.02(b) of the Purchase Agreement to the extent made as of a date
subsequent to such closing date, shall, except as provided in clause (ii) of
this paragraph, immediately and automatically, without notice or grace period,
constitute an Event of Default with respect to the Interim Servicer under this
Agreement and any applicable Reconstitution Agreement, and shall entitle the
Purchaser or Depositor, as applicable, in its sole discretion to terminate the
rights and obligations of the Interim Servicer as servicer under this Agreement
and/or any applicable Reconstitution Agreement without payment (notwithstanding
anything in this Agreement or any applicable Reconstitution Agreement to the
contrary) of any compensation to the Interim Servicer; provided that to the
extent that any provision of this Agreement and/or any applicable Reconstitution
Agreement expressly provides for the survival of certain rights or obligations
following termination of the Interim Servicer as servicer, such provision shall
be given effect.
(ii) Any failure by the Interim Servicer, any Subservicer or any
Subcontractor to deliver any information, report, certification or
accountants' letter when and as required under Section 12.04 or 12.05,
including (except as provided below) any failure by the Interim Servicer
to identify pursuant to Section 12.06(b) any Subcontractor "participating
in the servicing function" within the meaning of Item 1122 of Regulation
AB, which continues unremedied for ten calendar days after the date on
which such information, report, certification or accountants' letter was
required to be delivered shall constitute an Event of Default with respect
to the Interim Servicer under this Agreement and any applicable
Reconstitution Agreement, and shall entitle the Purchaser or Depositor, as
applicable, in its sole discretion to terminate the rights and obligations
of the Interim Servicer as servicer under this Agreement and/or any
applicable Reconstitution Agreement without payment (notwithstanding
anything in this Agreement to the contrary) of any compensation to the
Interim Servicer; provided that to the extent that any provision of this
Agreement and/or any applicable Reconstitution Agreement expressly
provides for the survival of certain rights or obligations following
termination of the Interim Servicer as servicer, such provision shall be
given effect.
Neither the Purchaser nor any Depositor shall be entitled to
terminate the rights and obligations of the Interim Servicer pursuant to
this subparagraph (b)(ii) if a failure of the Interim Servicer to identify
a Subcontractor "participating in the servicing function" within the
meaning of Item 1122 of Regulation AB was attributable solely to the role
or functions of such Subcontractor with respect to mortgage loans other
than the Mortgage Loans.
(iii) The Interim Servicer shall promptly reimburse the Purchaser
(or any designee of the Purchaser, such as a master servicer) and any
Depositor, as applicable, for all reasonable expenses incurred by the
Purchaser (or such designee) or such Depositor, as such are incurred, in
connection with the termination of the Interim Servicer as servicer and
the transfer of servicing of the Mortgage Loans to a successor servicer.
The provisions of this paragraph shall not limit whatever rights the
Purchaser or any Depositor may have under other provisions of this
Agreement and/or any applicable Reconstitution Agreement or otherwise,
whether in equity or at law, such as an action for damages, specific
performance or injunctive relief.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have executed this Agreement under
seal as of the date and year first above written.
XXXXXXX XXXXX MORTGAGE COMPANY,
a New York limited partnership
(Purchaser)
By:XXXXXXX XXXXX REAL ESTATE
FUNDING CORP., a New York
corporation, as General Partner
By: ____________________________
Name:
Title:
FREMONT INVESTMENT & LOAN
(the Interim Servicer)
By: ____________________________
Name:
Title:
EXHIBIT 1
FORM OF MONTHLY REMITTANCE ADVICE
EXHIBIT 2
FORM OF CUSTODIAL ACCOUNT CERTIFICATION
_______ __, 2004
Fremont Investment & Loan hereby certifies that it has established
the account described below as a Custodial Account pursuant to Section 2.04 of
the Flow Interim Servicing Agreement, dated as of October 1, 2004, Fixed and
Adjustable Rate Mortgage Loans.
Title of Account:_"Fremont Investment & Loan in trust for Xxxxxxx
Xxxxx Mortgage Company, Residential Fixed and Adjustable Rate Mortgage Loans and
various Mortgagors."
Account Number:______________________________________
Address of office or branch
of the Interim Servicer at
which Account is maintained:
FREMONT INVESTMENT & LOAN
Interim Servicer
By: _________________________
Name:
Title:
EXHIBIT 3
FORM OF CUSTODIAL ACCOUNT LETTER AGREEMENT
_______ __, 2004
To: ____________________________________________
____________________________________________
____________________________________________
(the "Depository")
As Interim Servicer under the Flow Interim Servicing Agreement,
dated as of October 1, 2004, Fixed and Adjustable Rate Mortgage Loans (the
"Agreement"), we hereby authorize and request you to establish an account, as a
Custodial Account pursuant to Section 2.04 of the Agreement, to be designated as
"Fremont Investment & Loan in trust for Xxxxxxx Xxxxx Mortgage Company,
Residential Fixed and Adjustable Rate Mortgage Loans and various Mortgagors."
All deposits in the account shall be subject to withdrawal therefrom by order
signed by the Interim Servicer. You may refuse any deposit which would result in
violation of the requirement that the account be fully insured as described
below. This letter is submitted to you in duplicate. Please execute and return
one original to us.
FREMONT INVESTMENT & LOAN
Interim Servicer
By: __________________________________
Name:
Title:
Date:
The undersigned, as Depository, hereby certifies that the above
described account has been established under Account Number __________, at the
office of the Depository indicated above, and agrees to honor withdrawals on
such account as provided above. The full amount deposited at any time in the
account will be insured by the Federal Deposit Insurance Corporation through the
Bank Insurance Fund ("BIF") or the Savings Association Insurance Fund ("SAIF").
________________________________
Depository
By:_____________________________
Name:
Title:
Date:
EXHIBIT 4
FORM OF ESCROW ACCOUNT CERTIFICATION
_________ ___, 2004
Fremont Investment & Loan hereby certifies that it has established
the account described below as an Escrow Account pursuant to Section 2.06 of the
Flow Interim Servicing Agreement, dated as of October 1, 2004, Fixed and
Adjustable Rate Mortgage Loans.
Title of Account: "Fremont Investment & Loan, in trust for Xxxxxxx
Xxxxx Mortgage Company Residential Fixed and Adjustable Rate Mortgage Loans and
various Mortgagors"
Account Number:______________________________________
Address of office or branch of the Interim Servicer at which Account is
maintained:
FREMONT INVESTMENT & LOAN
Interim Servicer
By:___________________________
Name:
Title:
Date:
EXHIBIT 5
FORM OF ESCROW ACCOUNT LETTER AGREEMENT
_______ __, 2004
To: ____________________________________________
____________________________________________
____________________________________________
(the "Depository")
As Interim Servicer under the Flow Interim Servicing Agreement,
dated as of October 1, 2004, Fixed and Adjustable Rate Mortgage Loans (the
"Agreement"), we hereby authorize and request you to establish an account, as an
Escrow Account pursuant to Section 2.06 of the Agreement, to be designated as
"Fremont Investment & Loan, in trust for Xxxxxxx Xxxxx Mortgage Company
Residential Fixed and Adjustable Rate Mortgage Loans and various Mortgagors."
All deposits in the account shall be subject to withdrawal therefrom by order
signed by the Interim Servicer. You may refuse any deposit which would result in
violation of the requirement that the account be fully insured as described
below. This letter is submitted to you in duplicate. Please execute and return
one original to us.
FREMONT INVESTMENT & LOAN
Interim Servicer
By:______________________________
Name:
Title:
Date:
The undersigned, as Depository, hereby certifies that the above
described account has been established under Account Number ______, at the
office of the Depository indicated above, and agrees to honor withdrawals on
such account as provided above. The full amount deposited at any time in the
account will be insured by the Federal Deposit Insurance Corporation through the
Bank Insurance Fund ("BIF") or the Savings Association Insurance Fund ("SAIF").
___________________________________
Depository
By:________________________________
Name:
Title:
Date:
EXHIBIT 6
FORM OF ANNUAL CERTIFICATION
Re: The [ ] agreement dated as of [ ], 200[ ] (the "Agreement"), among
Fremont Investment & Loan and Xxxxxxx Xxxxx Mortgage Company.
I, ________________________________, the _______________________ of
Fremont Investment and Loan (the "Company"), certify to Xxxxxxx Xxxxx Mortgage
Company, [the Depositor], and the [Master Servicer] [Securities Administrator]
[Trustee], and their officers, with the knowledge and intent that they will rely
upon this certification, that:
(1) I have reviewed the servicer compliance statement of the Company
provided in accordance with Item 1123 of Regulation AB (the "Compliance
Statement"), the report on assessment of the Company's compliance with the
servicing criteria set forth in Item 1122(d) of Regulation AB (the
"Servicing Criteria"), provided in accordance with Rules 13a-18 and 15d-18
under Securities Exchange Act of 1934, as amended (the "Exchange Act") and
Item 1122 of Regulation AB (the "Servicing Assessment"), the registered
public accounting firm's attestation report provided in accordance with
Rules 13a-18 and 15d-18 under the Exchange Act and Section 1122(b) of
Regulation AB (the "Attestation Report"), and all servicing reports,
officer's certificates and other information relating to the servicing of
the Mortgage Loans by the Company during 200[ ] that were delivered by the
Company to the [Depositor] [Master Servicer] [Securities Administrator]
[Trustee] pursuant to the Agreement (collectively, the "Company Servicing
Information");
(2) Based on my knowledge, the Company Servicing Information, taken
as a whole, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in
the light of the circumstances under which such statements were made, not
misleading with respect to the period of time covered by the Company
Servicing Information;
(3) Based on my knowledge, all of the Company Servicing Information
required to be provided by the Company under the Agreement has been
provided to the [Depositor] [Master Servicer] [Securities Administrator]
[Trustee];
(4) I am responsible for reviewing the activities performed by the
Company as servicer under the Agreement, and based on my knowledge and the
compliance review conducted in preparing the Compliance Statement and
except as disclosed in the Compliance Statement, the Servicing Assessment
or the Attestation Report, the Company has fulfilled its obligations under
the Agreement in all material respects; and
(5) The Compliance Statement required to be delivered by the Company
pursuant to this Agreement, and the Servicing Assessment and Attestation
Report required to be provided by the Company and by each Subcontractor
pursuant to the Agreement, have been provided to the [Depositor] [Master
Servicer]. Any material instances of noncompliance described in such
reports have been disclosed to the [Depositor] [Master Servicer]. Any
material instance of noncompliance with the Servicing Criteria has been
disclosed in such reports.
Date:_____________________________
By: ______________________________
Name:
Title:
EXHIBIT 7
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by Fremont Investment &
Loan [Subservicer] shall address, at a minimum, the criteria identified as below
as "Applicable Servicing Criteria":
--------------------------------------------------------------------------------------------------------------------
Applicable
Servicing Criteria Servicing 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 mortgage loans 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 mortgage loans are deposited into the appropriate
custodial bank accounts and related bank clearing accounts no more
than two business days following receipt, or such other number of
days specified in the transaction agreements.
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an
obligor or to an investor are made only by authorized
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.
1122(d)(2)(iv) The related accounts for the transaction, such as cash
reserve accounts or accounts established as a form of
overcollateralization, are separately maintained (e.g.,
with respect to commingling of cash) as set forth in
the transaction agreements.
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 mortgage loans serviced by the
Servicer.
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance
with timeframes, distribution priority and other terms set forth
in the transaction agreements.
1122(d)(3)(iii) 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 transaction
agreements.
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree with
cancelled checks, or other form of payment, or custodial bank
statements.
Pool Asset Administration
1122(d)(4)(i) Collateral or security on mortgage loans is maintained
as required by the transaction agreements or related
mortgage loan documents.
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as 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 mortgage loans, including any payoffs, made
in accordance with the related mortgage loan 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 mortgage loan documents.
1122(d)(4)(v) The Servicer's records regarding the mortgage loans
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 mortgage loans (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 mortgage loan 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 mortgage loans 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 mortgage
loans with variable rates are computed based on the related
mortgage loan 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 mortgage loan 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 mortgage loan documents and
state laws; and (C) such funds are returned to the
obligor within 30 calendar days of full repayment of
the related mortgage loans, 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.
1122(d)(4)(xiii) 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
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.
1122(d)(4)(xv) 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 transaction agreements.
Fremont Investment & Loan [SUBSERVICER]
Date:_____________________________________
By: ______________________________________
Name:
Title:
EXHIBIT AA
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT, dated May 26,
2006 ("Agreement"), is among Xxxxxxx Xxxxx Mortgage Company ("Assignor"), GS
Mortgage Securities Corp. ("Assignee"), and Impac Funding Corporation (the
"Company").
WHEREAS, the Assignor and Novelle Financial Services, Inc.
("Novelle") are parties to that certain Flow Mortgage Loan Purchase and
Warranties Agreement, dated as of December 1, 2005 (the "Purchase Agreement").
WHEREAS, the Company is the sole owner of Novelle.
NOW, THEREFORE, for and in consideration of good and valuable
consideration the receipt and sufficiency of which hereby are acknowledged, and
of the mutual covenants herein contained, the parties hereto hereby agree as
follows:
Assignment, Assumption and Conveyance
-------------------------------------
1. The Assignor hereby conveys, sells, grants, transfers and assigns
to the Assignee all of the right, title and interest (other than those rights
specifically retained by the Assignor pursuant to this Agreement) of the
Assignor, as purchaser, in, to and under (a) those certain mortgage loans listed
on the schedule (the "Mortgage Loan Schedule") attached hereto as Exhibit A (the
"Mortgage Loans"), (b) solely insofar as it relates to the Mortgage Loans, that
certain Purchase Agreement, between the Assignor, as purchaser (in such
capacity, the "Purchaser"), and Novelle, as seller. The Assignor hereby agrees
that it will (i) deliver possession of the notes evidencing the Mortgage Loans
to, or at the direction of, the Assignee or its designee and (ii) take in a
timely manner all necessary steps under all applicable laws to convey and to
perfect the conveyance of the Mortgage Loans as required under the Pooling
Agreement (as defined below).
The Assignor specifically reserves and does not assign to the
Assignee hereunder (i) any and all right, title and interest in, to and under
and any obligations of the Assignor with respect to any mortgage loans subject
to the Purchase Agreement that are not the Mortgage Loans set forth on the
Mortgage Loan Schedule and are not the subject of this Agreement or (ii) the
rights of the Purchaser under Section 13 and Subsection 14.01 of the Purchase
Agreement.
The Assignee hereby assumes all of the Assignor's obligations from
and after the date hereof under the Mortgage Loans and the Purchase Agreement
solely insofar as such obligations relate to the Mortgage Loans. The Assignee
does not assume hereby such obligations of Assignor prior to the date hereof.
Recognition of the Company
--------------------------
2. From and after the date hereof (the "Securitization Closing
Date"), the Company shall and does hereby recognize that the Assignee will
transfer the Mortgage Loans and assign its rights under the Purchase Agreement
(solely to the extent set forth herein) and this Agreement to LaSalle Bank
National Association, as trustee (including its successors in interest and any
successor trustees under the Pooling Agreement (as defined below), the
"Trustee"), of the GSAMP Trust 2006-HE3 (the "Trust") created pursuant to a
Pooling and Servicing Agreement, dated as of May 1, 2006 (the "Pooling
Agreement"), among the Assignee, the Trustee, Xxxxxx Loan Servicing LP, as a
servicer of certain Mortgage Loans ("Xxxxxx"), Select Portfolio Servicing, Inc.,
as a servicer of certain Mortgage Loans ("SPS"), Avelo Mortgage, L.L.C., as a
servicer of certain Mortgage Loans (together with Xxxxxx and SPS, including
their successors in interest and any successor servicers of the Mortgage Loans
under the Pooling Agreement, the "Servicers"), Deutsche Bank National Trust
Company, as a custodian ("Deutsche Bank"), X.X. Xxxxxx Trust Company, National
Association, as a custodian ("X.X. Xxxxxx"), U.S. Bank National Association, as
a custodian (together with Deutsche Bank and X.X. Xxxxxx, including their
successors in interest and any successor custodians of the Mortgage Loans under
the Pooling Agreement, the "Custodians") and Xxxxx Fargo Bank, N.A., as master
servicer (including its successors in interest and any successor master servicer
of the Mortgage Loans under the Pooling Agreement, the "Master Servicer") and as
securities administrator (including its successors in interest and any successor
securities administrator of the Mortgage Loans under the Pooling Agreement, the
"Securities Administrator"). The Company hereby acknowledges and agrees that
from and after the date hereof (i) the Trust will be the owner of the Mortgage
Loans and the Servicers will be the servicers of the Mortgage Loans on or after
the Transfer Date pursuant to the terms set forth in the Pooling Agreement, (ii)
the Company shall look solely to the Trust (including the Trustee, the
Securities Administrator, the Master Servicer and the Servicers acting on the
Trust's behalf) for performance of any obligations of the Assignor under the
Mortgage Loans and the Purchase Agreement (solely insofar as they relate to the
Mortgage Loans), (iii) the Trust (including the Trustee, the Securities
Administrator, the Master Servicer and the Servicers acting on the Trust's
behalf) shall have all the rights and remedies available to the Assignor,
insofar as they relate to the Mortgage Loans, under the Purchase Agreement,
including, without limitation, the enforcement of the document delivery
requirements set forth in Subsection 6.03 of the Purchase Agreement, and shall
be entitled to enforce all of the obligations of the Company thereunder insofar
as they relate to the Mortgage Loans, including without limitation, the remedies
for breaches of representations and warranties set forth in Subsection 9.03 of
the Purchase Agreement, (iv) all references to the Purchaser or the Custodian
under the Purchase Agreement as they relate to the Mortgage Loans shall be
deemed to refer to the Trust (including the Trustee, the Securities
Administrator, the Master Servicer and the Servicers acting on the Trust's
behalf) and (v) the Mortgage Loans will be part of a REMIC, and the Company
shall service the Mortgage Loans and any real property acquired upon default
thereof (including, without limitation, making or permitting any modification,
waiver or amendment of any term of any Mortgage Loan) prior to the applicable
Transfer Date in accordance with the Flow Interim Servicing Agreement, dated as
of December 1, 2005 (the "Servicing Agreement"), by and between the Assignor and
the Company but in no event in a manner that would (A) cause the REMIC to fail
to qualify as a REMIC or (B) result in the imposition of a tax upon the REMIC
(including but not limited to the tax on prohibited transactions as defined in
Section 860F(a)(2) of the Code, the tax on contributions to a REMIC set forth in
Section 860G(d) of the Code, and the tax on "net income from foreclosure
property" as set forth in Section 860G(c) of the Code). Neither the Company nor
the Assignor shall amend or agree to amend, modify, waive, or otherwise alter
any of the terms or provisions of the Purchase Agreement or the Servicing
Agreement which amendment, modification, waiver or other alteration would in any
way affect the Mortgage Loans or the Company's performance under the Purchase
Agreement or the Servicing Agreement with respect to the Mortgage Loans without
the prior written consent of the Trustee.
Representations and Warranties of the Company
---------------------------------------------
3. The Company warrants and represents to and covenants with, the
Assignor, the Assignee and the Trust as of the date hereof that:
(a) The Company is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its formation;
(b) The Company has full power and authority to execute, deliver
and perform its obligations under this Agreement, and has full power and
authority to perform its obligations under this Agreement, the Purchase
Agreement and the Servicing Agreement. The execution by the Company of
this Agreement is in the ordinary course of the Company's business and
will not conflict with, or result in a breach of, any of the terms,
conditions or provisions of the Company's charter or bylaws or any legal
restriction, or any material agreement or instrument to which the Company
is now a party or by which it is bound, or result in the violation of any
law, rule, regulation, order, judgment or decree to which the Company or
its property is subject. The execution, delivery and performance by the
Company of this Agreement have been duly authorized by all necessary
corporate actions on the part of the Company. This Agreement has been duly
executed and delivered by the Company, and, upon the due authorization,
execution and delivery by the Assignor and the Assignee, will constitute
the valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms except as enforceability
may be limited by bankruptcy, reorganization, insolvency, moratorium or
other similar laws now or hereafter in effect relating to creditors'
rights generally, and by general principles of equity regardless of
whether enforceability is considered in a proceeding in equity or at law;
(c) No consent, approval, order or authorization of, or
declaration, filing or registration with, any governmental entity is
required to be obtained or made by the Company in connection with the
execution, delivery or performance by the Company of this Agreement or the
consummation by it of the transaction contemplated hereby;
(d) There is no action, suit, proceeding or investigation pending
or threatened against the Company, before any court, administrative agency
or other tribunal, which would draw into question the validity of this
Agreement, the Purchase Agreement or the Servicing Agreement, or which,
either in any one instance or in the aggregate, is likely to result in any
material adverse change in the ability of the Company to perform its
obligations under this Agreement or the Purchase Agreement or the
Servicing Agreement, and the Company is solvent;
(e) No Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable, and no Mortgage Loan originated on or after October 1, 2002
through March 6, 2003 is governed by the Georgia Fair Lending Act. No
Mortgage Loan is covered by the Home Ownership and Equity Protection Act
of 1994 and no Mortgage Loan is in violation of any comparable state or
local law. The Mortgaged Property is not located in a jurisdiction where a
breach of this representation with respect to the related Mortgage Loan
may result in additional assignee liability to the Purchaser, as
determined by Purchaser in its reasonable discretion. No predatory or
deceptive lending practices, including, without limitation, the extension
of credit without regard to the ability of the Mortgagor to repay and the
extension of credit which has no apparent benefit to the Mortgagor, were
employed in the origination of the Mortgage Loan; and
(f) In connection with the origination of any Mortgage Loan, no
proceeds from any Mortgage Loan were used to finance or acquire a
single-premium credit life insurance policy. No Mortgagor was required to
purchase any single-premium credit insurance policy (e.g., life,
disability, accident, unemployment, or health insurance product) or debt
cancellation agreement as a condition of obtaining the extension of
credit. No Mortgagor obtained a prepaid single-premium credit insurance
policy (e.g., life, disability, accident, unemployment, mortgage, or
health insurance) in connection with the origination of the Mortgage Loan;
no proceeds from any Mortgage Loan were used to purchase single-premium
credit insurance policies or debt cancellation agreements as part of the
origination of, or as a condition to closing, such Mortgage Loan.
4. Pursuant to Section 13 of the Purchase Agreement, the Company
hereby represents and warrants, for the benefit of the Assignor, the Assignee
and the Trust, that the representations and warranties set forth in Subsections
9.01 and 9.02 of the Purchase Agreement are true and correct (with respect to
the representations and warranties set forth in Section 9.02 (a), the first
sentence of (b), the first sentence of (c) (other than the first clause
thereof), (d), (f) (except the last sentence of (f)), (n), (o), (p), the last
sentence of (s), (t) (except the first sentence of (t)), (w), (x), (y), (ii),
(qq), (rr), (ss), (tt) and (iii), as of the Transfer Date (as defined in the
Purchase Agreement)) as of December 20, 2005, as if such representations and
warranties were made on December 20, 2005.
Remedies for Breach of Representations and Warranties of the Company
--------------------------------------------------------------------
5. (a) The Company hereby acknowledges and agrees that the remedies
available to the Assignor, the Assignee and the Trust (including the Trustee,
the Securities Administrator, the Master Servicer and the Servicers acting on
the Trust's behalf) in connection with any breach of the representations and
warranties made by the Company set forth in Sections 3 and 4 hereof shall be as
set forth in Subsection 9.03 of the Purchase Agreement as if they were set forth
herein (including without limitation the repurchase and indemnity obligations
set forth therein, including its obligation to repurchase any Mortgage Loan in
breach of the representations in clauses (g), (i), (uu), (ww), (xx), (yy),
(iii), (jjj), (kkk), (lll) and (mmm) of Subsection 9.02 of the Purchase
Agreement within not more than 60 days of such discovery or receipt of notice of
such breach).
(b) Notwithstanding anything to the contrary contained herein or
in the Purchase Agreement, the fourth sentence of the second full paragraph of
Subsection 9.03 of the Purchase Agreement is hereby deleted and replaced in its
entirety with the following sentence:
"However, if the breach shall involve a representation or warranty
set forth in Subsection 9.02 (other than the representations and warranties set
forth in clauses (g), (i), (uu), (ww), (xx), (yy), (iii), (jjj), (kkk), (lll)
and (mmm) of Subsection 9.02) and the Seller discovers or receives notice of any
such breach within 120 days of the related Closing Date, the Seller shall, at
the Purchaser's option and provided that the Seller has a Qualified Substitute
Mortgage Loan, rather than repurchase the Mortgage Loan as provided above,
remove such Mortgage Loan (a "Deleted Mortgage Loan") and substitute in its
place a Qualified Substitute Mortgage Loan or Loans, provided that any such
substitution shall be effected not later than 120 days after the related Closing
Date."
(c) Notwithstanding anything to the contrary contained herein or
in the Purchase Agreement, the following language should be added as the last
sentence in the third full paragraph of Subsection 9.03 of the Purchase
Agreement:
"Accordingly, on the date of such substitution, the Seller will
remit to the Purchaser from its own funds an amount equal to the amount of such
shortfall plus one month's interest thereon at the Mortgage Interest Rate on the
Deleted Mortgage Loan."
(d) Bring Down. To the Assignor's knowledge, nothing has occurred
or failed to occur from and after the Closing Date set forth in such Purchase
Agreement to the Securitization Closing Date that would cause any of the
representations and warranties relating to the applicable Mortgage Loans set
forth in Subsection 9.02 of such Purchase Agreement to be incorrect in any
material respects as of the date hereof as if made on the date hereof.
6. The Company hereby acknowledges and agrees that the remedies
available to the Assignor, the Assignee and the Trust (including the Trustee,
the Master Servicer, the Securities Administrator and the Servicers acting on
the Trust's behalf) in connection with any breach of the representations and
warranties made by the Company set forth in Sections 3 and 4 hereof shall be as
set forth in Subsection 9.03 of the Purchase Agreement as if they were set forth
herein (including without limitation the repurchase and indemnity obligations
set forth therein).
7. Each of the Company and the Assignee hereby agree that the
provisions related to early payment default set forth in the third full
paragraph of Section 5 of the Purchase Price and Terms Agreement, dated December
1, 2005, between Novelle and the Assignor (the "PPTA") and the provisions
related to premium recapture set forth in the fourth full paragraph of Section 5
of the PPTA shall not apply to the Mortgage Loans.
8. The Company shall indemnify and hold harmless the Assignee, the
Servicers, the Master Servicer, the Securities Administrator and the Trustee and
their respective officers, directors and affiliates from and against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments and other costs and expenses arising out of or based
upon a breach of the Company's obligations under this Section 8, or the
Company's negligence, bad faith, willful misconduct or material misstatements or
omissions in connection therewith. If the indemnification provided for herein is
unavailable or insufficient to hold harmless the indemnified party, then the
Company agrees that it shall contribute to the amount paid or payable by the
Assignee, the Servicers, the Master Servicer, the Securities Administrator
and/or the Trustee (and their respective officers, directors and affiliates) as
a result of the losses, claims, damage or liabilities of the Assignee, the
Servicers, the Master Servicer, the Securities Administrator and/or the Trustee
in such proportion as is appropriate to reflect the relative fault of the
Assignee, the Servicers, the Master Servicer, the Securities Administrator or
the Trustee, as the case may be, on the one hand, and the Company on the other
in connection with a breach of the Company's obligation under this Section 8 or
the Company's negligence, bad faith, willful misconduct or material
misstatements or omissions in connection therewith.
Representations and Warranties of the Assignor
----------------------------------------------
9. The Assignor warrants and represents to the Assignee and the
Trust as of the date hereof that, with respect to each Mortgage Loan:
(a) The Assignor is the sole owner of record and holder of the
Mortgage Loan and the indebtedness evidenced by each Mortgage Note. The
Mortgage Loan is not assigned or pledged, and the Assignor has good,
indefeasible and marketable title thereto, and has full right to transfer
and sell the Mortgage Loan to the Assignee free and clear of any
encumbrance, equity, participation interest, lien, pledge, charge, claim
or security interest, and has full right and authority subject to no
interest or participation of, or agreement with, any other party, to sell
and assign each Mortgage Loan pursuant to this Agreement and following the
sale of each Mortgage Loan, the Assignee will own such Mortgage Loan free
and clear of any encumbrance, equity, participation interest, lien,
pledge, charge, claim or security interest. The Assignor intends to
relinquish all rights to possess, control and monitor the Mortgage Loan;
(b) The Assignor has not waived the performance by the Mortgagor
of any action, if the Mortgagor's failure to perform such action would
cause the Mortgage Loan to be in default, nor has the Company waived any
default resulting from any action or inaction by the Mortgagor;
(c) Any and all requirements of any federal, state or local law
including, without limitation, usury, truth-in-lending, real estate
settlement procedures, consumer credit protection, equal credit
opportunity and disclosure laws applicable to the Mortgage Loans have been
complied with, including, but not limited to, all applicable
anti-predatory and abusive lending laws; and
(d) No Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable. No Mortgage Loan is covered by the Home Ownership and Equity
Protection Act of 1994 and no Mortgage Loan is in violation of any
comparable state or local law. No Mortgage Loan originated on or after
October 1, 2002 through March 6, 2003 is governed by the Georgia Fair
Lending Act.
For the purposes of this Section 9(d) the following definitions shall
apply:
Covered Loan: A Mortgage Loan categorized as Covered pursuant to
Appendix E of Standard & Poor's Glossary.
Home Loan: A Mortgage Loan categorized as Home Loan pursuant to
Appendix E of Standard & Poor's Glossary.
Standard & Poor's Glossary: Version 5.6(d) of the Standard &
Poor's LEVELS(R) Glossary, or such version as may be in effect
from time to time.
High Cost Loan: A Mortgage Loan (a) covered by the Home Ownership
and Equity Protection Act of 1994, (b) a "high cost home,"
"threshold," "covered," (excluding New Jersey "Covered Home
Loans" as that term is defined in clause (1) of the definition of
that term in the New Jersey Home Ownership Security Act of 2002),
"high risk home," "predatory" or similar loan under any other
applicable state, federal or local law (or a similarly classified
loan using different terminology under a law imposing heightened
regulatory scrutiny or additional legal liability for residential
mortgage loans having high interest rates, points and/or fees) or
(c) categorized as High Cost pursuant to Appendix E of Standard &
Poor's Glossary. For avoidance of doubt, the parties agree that
this definition shall apply to any law regardless of whether such
law is presently, or in the future becomes, the subject of
judicial review or litigation.
Remedies for Breach of Representations and Warranties of the Assignor
---------------------------------------------------------------------
10. The Assignor hereby acknowledges and agrees that in the event of
any breach of the representations and warranties made by the Assignor set forth
in Section 9 hereof that materially and adversely affects the value of the
Mortgage Loans or the interest of the Assignee or the Trust therein within 60
days of the earlier of either discovery by or notice to the Assignor of such
breach of a representation or warranty, it shall cure, purchase or cause the
purchase of the applicable Mortgage Loan at the Repurchase Price set forth in
the Pooling Agreement.
Enforcement of Representations and Warranties of the Company
------------------------------------------------------------
11. The Assignor hereby agrees to use its best efforts to enforce
the remedies for a breach of the representations and warranties of the Company
set forth in Section 5 herein.
Miscellaneous
-------------
12. This Agreement shall be construed in accordance with the laws of
the State of New York, without regard to conflicts of law principles, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
13. No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced, with the prior
written consent of the Trustee.
14. This Agreement shall inure to the benefit of (i) the successors
and assigns of the parties hereto and (ii) the Trust (including the Trustee, the
Securities Administrator, the Master Servicer, and the Servicer acting on the
Trust's behalf). Any entity into which the Assignor, Assignee or Company may be
merged or consolidated shall, without the requirement for any further writing,
be deemed Assignor, Assignee or Company, respectively, hereunder.
15. Each of this Agreement, the Purchase Agreement and the Servicing
Agreement shall survive the conveyance of the Mortgage Loans and the assignment
of the Purchase Agreement and the Servicing Agreement (to the extent assigned
hereunder) by the Assignor to the Assignee and by the Assignee to the Trust and,
except as expressly set forth herein, nothing contained herein shall supersede
or amend the terms of the Purchase Agreement and the Servicing Agreement.
16. This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original and all such
counterparts shall constitute one and the same instrument.
17. In the event that any provision of this Agreement conflicts with
any provision of any of the Purchase Agreement or the Servicing Agreement with
respect to the Mortgage Loans, the terms of this Agreement shall control.
18. Capitalized terms used in this Agreement (including the exhibits
hereto) but not defined in this Agreement shall have the meanings given to such
terms in the Purchase Agreement or the Servicing Agreement, as applicable.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
GS MORTGAGE SECURITIES CORP.
By: /s/ Xxxxxxxx Xxxx
-----------------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
XXXXXXX XXXXX MORTGAGE COMPANY,
a New York limited partnership
By: XXXXXXX XXXXX REAL ESTATE
FUNDING CORP.,
a New York corporation, as
general partner
By: /s/ Xxxxx Xxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
IMPAC FUNDING CORPORATION
By: /s/ Xxx Xxxxxx
-----------------------------
Name: Xxx Xxxxxx
Title: VP
EXHIBIT A TO ASSIGNMENT AND RECOGNITION AGREEMENT
-------------------------------------------------
Mortgage Loan Schedule
================================================================================
FLOW MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT
XXXXXXX XXXXX MORTGAGE COMPANY
Purchaser
NOVELLE FINANCIAL SERVICES, INC.,
Seller
Dated as of December 1, 2005
Conventional,
Fixed and Adjustable Rate Residential Mortgage Loans
================================================================================
TABLE OF CONTENTS
SECTION 1. DEFINITIONS........................................................
SECTION 2. AGREEMENT TO PURCHASE..............................................
SECTION 3. MORTGAGE SCHEDULES.................................................
SECTION 4. PURCHASE PRICE.....................................................
SECTION 5. EXAMINATION OF MORTGAGE FILES......................................
SECTION 6. CONVEYANCE FROM SELLER TO PURCHASER................................
Subsection 6.01 Conveyance of Mortgage Loans...............................
Subsection 6.02 Books and Records..........................................
Subsection 6.03 Delivery of Mortgage Loan Documents........................
Subsection 6.04 Quality Control Procedures.................................
SECTION 7. SERVICING OF THE MORTGAGE LOANS....................................
SECTION 8. TRANSFER OF SERVICING..............................................
SECTION 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLER; REMEDIES
FOR BREACH.........................................................
Subsection 9.01 Representations and Warranties Regarding the Seller........
Subsection 9.02 Representations and Warranties Regarding Individual
Mortgage Loans.............................................
Subsection 9.03 Remedies for Breach of Representations and Warranties......
Subsection 9.04 [Reserved].................................................
Subsection 9.05 Purchaser's Right to Review................................
SECTION 10. CLOSING............................................................
SECTION 11. CLOSING DOCUMENTS..................................................
SECTION 12. COSTS..............................................................
SECTION 13. COOPERATION OF SELLER WITH A RECONSTITUTION........................
SECTION 14. THE SELLER.........................................................
Subsection 14.01 Additional Indemnification by the Seller;
Third Party Claims.........................................
Subsection 14.02 Merger or Consolidation of the Seller......................
SECTION 15. FINANCIAL STATEMENTS...............................................
SECTION 16. MANDATORY DELIVERY; GRANT OF SECURITY INTEREST.....................
SECTION 17. NOTICES............................................................
SECTION 18. SEVERABILITY CLAUSE................................................
SECTION 19. COUNTERPARTS.......................................................
SECTION 20. GOVERNING LAW......................................................
SECTION 21. INTENTION OF THE PARTIES...........................................
SECTION 22. SUCCESSORS AND ASSIGNS; ASSIGNMENT OF PURCHASE AGREEMENT...........
SECTION 23. WAIVERS............................................................
SECTION 24. EXHIBITS...........................................................
SECTION 25. GENERAL INTERPRETIVE PRINCIPLES....................................
SECTION 26. REPRODUCTION OF DOCUMENTS..........................................
SECTION 27. FURTHER AGREEMENTS.................................................
SECTION 28. RECORDATION OF ASSIGNMENTS OF MORTGAGE.............................
SECTION 29. NO SOLICITATION....................................................
SECTION 30. WAIVER OF TRIAL BY JURY............................................
SECTION 31. SUBMISSION TO JURISDICTION; WAIVERS................................
SECTION 32. CONFIDENTIAL INFORMATION...........................................
SECTION 33. COMPLIANCE WITH REGULATION AB......................................
Subsection 33.01 Intent of the Parties; Reasonableness......................
Subsection 33.02 Additional Representations and Warranties of the Seller....
Subsection 33.03 Information To Be Provided by the Seller...................
Subsection 33.04 Indemnification............................................
EXHIBITS
EXHIBIT A CONTENTS OF EACH MORTGAGE FILE
EXHIBIT B CONTENTS OF EACH CREDIT FILE
EXHIBIT C FORM OF SELLER'S OFFICER'S CERTIFICATE
EXHIBIT D FORM OF OPINION OF COUNSEL TO THE SELLER
EXHIBIT E FORM OF SECURITY RELEASE CERTIFICATION
EXHIBIT F FORM OF SECURITY RELEASE CERTIFICATION
EXHIBIT G FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT H [INTENTIONALLY OMITTED]
EXHIBIT I REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE POOL
CHARACTERISTICS OF THE MORTGAGE LOANS
EXHIBIT J ORIGINATOR'S UNDERWRITING GUIDELINES
EXHIBIT K MORTGAGE LOAN SCHEDULE
EXHIBIT L [INTENTIONALLY OMITTED]
EXHIBIT M ASSIGNMENT AND CONVEYANCE
EXHIBIT N FORM OF INDEMNIFICATION AGREEMENT
FLOW MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT
This FLOW MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT (the
"Agreement"), dated as of December 1, 2005, by and between Xxxxxxx Xxxxx
Mortgage Company, a New York limited partnership, having an office at 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Purchaser") and Novelle Financial
Services, Inc., a Delaware corporation, having an office at 0000 Xxxx Xxxxxx,
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000 (the "Seller").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, from time to time, the Seller desires to sell to the
Purchaser, and, from time to time, the Purchaser desires to purchase from the
Seller, certain conventional adjustable and fixed rate residential first and
second lien mortgage loans (the "Mortgage Loans") on a servicing released basis
as described herein, and which shall be delivered as a pool of whole loans;
WHEREAS, each Mortgage Loan is secured by a mortgage, deed of trust
or other security instrument creating a first or second lien on a
residential dwelling located in the jurisdiction indicated on the related
Mortgage Loan Schedule;
WHEREAS, the Purchaser and the Seller wish to prescribe the manner
of the conveyance and control of the Mortgage Loans; and
WHEREAS, following its purchase of the Mortgage Loans from the
Seller, the Purchaser desires to sell some or all of the Mortgage Loans to one
or more purchasers as a whole loan transfer or a public or private, rated or
unrated mortgage pass-through transaction;
NOW, THEREFORE, in consideration of the premises and mutual
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Purchaser and the
Seller agree as follows:
SECTION 1. Definitions.
For purposes of this Agreement the following capitalized terms shall
have the respective meanings set forth below.
Accepted Servicing Practices: With respect to any Mortgage Loan
those mortgage servicing practices of prudent mortgage lending institutions
which service mortgage loans of the same type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located and incorporating
the Delinquency Collection Policies and Procedures.
Act: The National Housing Act, as amended from time to time.
Adjustable Rate Mortgage Loan: An adjustable rate Mortgage Loan
purchased pursuant to this Agreement.
Affiliate: With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Agency Transfer: A Xxxxxx Xxx Transfer or a Freddie Mac Transfer.
Agreement: This Flow Mortgage Loan Purchase and Warranties Agreement
and all amendments hereof and supplements hereto.
ALTA: The American Land Title Association, or any successor thereto.
Appraised Value: The value set forth in an appraisal made in
connection with the origination of the related Mortgage Loan as the value of the
Mortgaged Property.
Appropriate Federal Banking Agency: Appropriate Federal Banking
Agency shall have the meaning ascribed to it by Section 1813(q) of Title 12 of
the United States Code, as amended from time to time.
Assignment and Assumption Agreement: As defined in Section 22.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
the sale of the Mortgage to the Purchaser.
BIF: The Bank Insurance Fund, or any successor thereto.
Business Day: Any day other than (i) a Saturday or Sunday, (ii) a
day on which banking and savings and loan institutions in (a) the State of New
York, (b) the state in which the Seller's servicing operations are located or
(c) or (iii) the State in which the Custodian's operations are located, are
authorized or obligated by law or executive order to be closed.
Closing Date: The date or dates set forth on the related Purchase
Price and Terms Agreement on which the Purchaser from time to time shall
purchase and the Seller from time to time shall sell, the Mortgage Loans listed
on the related Mortgage Loan Schedule
CLTV: As of the date of origination and as to any Second Lien
Mortgage Loan, the ratio, expressed as a percentage, of the (a) sum of (i) the
outstanding principal balance of the Second Lien Mortgage Loan as of the date of
origination and (ii) the outstanding principal balance as of the date of
origination of any mortgage loan or mortgage loans that are senior or equal in
priority to the Second Lien Mortgage Loan and which are secured by the same
Mortgaged Property to (b) the lesser of the Appraised Value and the purchase
price of the Mortgaged Property.
Code: Internal Revenue Code of 1986, as amended.
Commission: The United States Securities and Exchange Commission.
Condemnation Proceeds: All awards or settlements in respect of a
Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan Documents.
Convertible Mortgage Loan: Any individual Adjustable Rate Mortgage
Loan purchased pursuant to this Agreement which contains a provision whereby the
Mortgagor is permitted to convert the Adjustable Rate Mortgage Loan to a fixed
rate Mortgage Loan in accordance with the terms of the related Mortgage Note.
Covered Loan: A Mortgage Loan categorized as Covered pursuant to
Appendix E of Standard & Poor's Glossary.
Credit File: The items pertaining to a particular Mortgage Loan
referred to in Exhibit B annexed hereto, and any additional documents required
to be added to the credit File pursuant to this Agreement.
Custodial Account: The separate account or accounts created and
maintained pursuant to the Interim Servicing Agreement (with respect to each
Mortgage Loan, for an interim period, as specified therein).
Custodial Agreement: The agreement between the Purchaser and the
Custodian governing the retention of the originals of each Mortgage Note,
Mortgage, Assignment of Mortgage and other documents constituting the Mortgage
Files.
Custodian: Deutsche Bank (or such other Custodian as specified in
the related Purchase Price and Terms Agreement), or successors in interest or
permitted assigns, or any successor to the Custodian under the Custodial
Agreement as therein provided.
Cut-off Date: With respect to each Mortgage Loan in a Mortgage Loan
Package, the date set forth on the related Purchase Price and Terms Agreement.
Deleted Mortgage Loan: A Mortgage Loan that is repurchased or
replaced or to be replaced with a Qualified Substitute Mortgage Loan by the
Seller in accordance with the terms of this Agreement.
Delinquency Collection Policies and Procedures: The delinquency
collection policies and procedures of the Interim Servicer, a copy of which is
attached to the Interim Servicing Agreement as Exhibit 7.
Determination Date: The 20th day of each calendar month.
Depositor: The depositor, as such term is defined in Regulation AB,
with respect to any Securitization Transaction.
Due Date: The day of the month on which the Monthly Payment is due
on a Mortgage Loan, exclusive of any days of grace.
Equity Take-Out Refinanced Mortgage Loan: A Mortgage Loan used to
refinance an existing mortgage loan, the proceeds of which were in excess of the
outstanding principal balance of the existing mortgage loan.
Escrow Account: The separate account or accounts created and
maintained pursuant to the Interim Servicing Agreement (with respect to each
Mortgage Loan, for an interim period, as specified therein).
Escrow Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed by
the Mortgagor with the mortgagee pursuant to the Mortgage or any other document.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Xxxxxx Xxx: The Federal National Mortgage Association, or any
successor thereto.
Xxxxxx Xxx Guides: The Xxxxxx Xxx Selling Guide and the Xxxxxx Xxx
Servicing Guide and all amendments or additions thereto.
Xxxxxx Xxx Transfer: As defined in Section 13 hereof.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHA: The Federal Housing Administration, an agency within the United
States Department of Housing and Urban Development, or any successor thereto and
including the Federal Housing Commissioner and the Secretary of Housing and
Urban Development where appropriate under the FHA Regulations.
FHA Approved Mortgagee: A corporation or institution approved as a
mortgagee by the FHA under the Act, and applicable HUD regulations, and eligible
to own and service mortgage loans such as the FHA mortgage loans.
FICO: Fair Xxxxx Corporation, or any successor thereto.
Fitch: Fitch, Inc., or its successor in interest.
Fixed Rate Mortgage Loan: A fixed rate mortgage loan purchased
pursuant to this Agreement.
Freddie Mac: The Federal Home Loan Mortgage Corporation, or any
successor thereto.
Freddie Mac Transfer: As defined in Section 13 hereof.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan,
the fixed percentage amount set forth in the related Mortgage Note which amount
is added to the Index in accordance with the terms of the related Mortgage Note
to determine on each Interest Rate Adjustment Date the Mortgage Interest Rate
for such Mortgage Loan.
High Cost Loan: A Mortgage Loan (a) covered by the Home Ownership
and Equity Protection Act of 1994, (b) classified as a "high cost home,"
"threshold," "covered," "high risk home," "predatory" or similar loan under any
other applicable state, federal or local law (or a similarly classified loan
using different terminology under a law imposing heightened regulatory scrutiny
or additional legal liability for residential mortgage loans having high
interest rates, points and/or fees) or (c) categorized as High Cost pursuant to
Appendix E of Standard & Poor's Glossary. For avoidance of doubt, the parties
agree that this definition shall apply to any law regardless of whether such law
is presently, or in the future becomes, the subject of judicial review or
litigation.
Home Loan: A Mortgage Loan categorized as Home Loan pursuant to
Appendix E of Standard & Poor's Glossary.
HUD: The Department of Housing and Urban Development, or any federal
agency or official thereof which may from time to time succeed to the functions
thereof with regard to FHA Mortgage Insurance. The term "HUD," for purposes of
this Agreement, is also deemed to include subdivisions thereof such as the FHA
and Government National Mortgage Association.
Index: With respect to each Adjustable Rate Mortgage Loan, a rate
per annum as specified in the related Mortgage Loan Schedule.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property.
Interest Rate Adjustment Date: With respect to each adjustable rate
Mortgage Loan, the date, specified in the related Mortgage Note and the related
Mortgage Loan Schedule, on which the Mortgage Interest Rate is adjusted.
Interim Funder: With respect to each MERS Designated Mortgage Loan,
the Person named on the MERS(R) System as the interim funder pursuant to the
MERS Procedures Manual.
Interim Servicing Agreement: That certain Flow Interim Servicing
Agreement, dated as of the date hereof, by and between the Purchaser and the
Seller.
Investor: With respect to each MERS Designated Mortgage Loan, the
Person named on the MERS(R) System as the investor pursuant to the MERS
Procedures Manual.
Lifetime Rate Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute maximum Mortgage
Interest Rate thereunder. The Mortgage Interest Rate during the terms of each
Adjustable Rate Mortgage Loan shall not at any time exceed the Mortgage Interest
Rate at the time of origination of such Adjustable Rate Mortgage Loan by more
than the amount per annum set forth on the related Mortgage Loan Schedule.
Limited Documentation Program: The guidelines under which the Seller
generally originates Mortgage Loans principally on the basis of the
Loan-to-Value Ratio of the related Mortgage Loan and the creditworthiness of the
Mortgagor.
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or assignment
of such Mortgage Loan, trustee's sale, foreclosure sale or otherwise or the sale
of the related Mortgaged Property if the Mortgaged Property is acquired in
satisfaction of the Mortgage Loan.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan, the
ratio (expressed as a percentage) of the outstanding principal amount of the
Mortgage Loan as of the related Cut-off Date (unless otherwise indicated), to
the lesser of (a) the Appraised Value of the Mortgaged Property at origination
and (b) if the Mortgage Loan was made to finance the acquisition of the related
Mortgaged Property, the purchase price of the Mortgaged Property.
MERS: MERSCORP, Inc., its successors and assigns.
MERS Designated Mortgage Loan: Mortgage Loans for which (a) the
Seller has designated or will designate MERS as, and has taken or will take such
action as is necessary to cause MERS to be, the mortgagee of record, as nominee
for the Seller, in accordance with MERS Procedure Manual and (b) the Seller has
designated or will designate the Custodian as the Investor on the MERS(R)
System.
MERS Procedure Manual: The MERS Procedures Manual, as it may be
amended, supplemented or otherwise modified from time to time.
MERS Report: The report from the MERS(R) System listing MERS
Designated Mortgage Loans and other information.
MERS(R) System: MERS mortgage electronic registry system, as more
particularly described in the MERS Procedures Manual.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Moody's: Xxxxx'x Investors Service, Inc., and any successor thereto.
Mortgage: The mortgage, deed of trust or other instrument securing a
Mortgage Note, which creates a first or second lien on an unsubordinated estate
in fee simple in real property securing the Mortgage Note; except that with
respect to real property located in jurisdictions in which the use of leasehold
estates for residential properties is a widely-accepted practice, the mortgage,
deed of trust or other instrument securing the Mortgage Note may secure and
create a first or second lien upon a leasehold estate of the Mortgagor.
Mortgage File: The items pertaining to a particular Mortgage Loa
referred to in Exhibit A annexed hereto, and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: The annual rate of interest borne on a
Mortgage Note with respect to each Mortgage Loan.
Mortgage Interest Rate Cap: With respect to an Adjustable Rate
Mortgage Loan, the limit on each Mortgage Interest Rate adjustment as set forth
in the related Mortgage Note.
Mortgage Loan: An individual Mortgage Loan which is the subject of
this Agreement, each Mortgage Loan originally sold and subject to this Agreement
being identified on the related Mortgage Loan Schedule, which Mortgage Loan
includes without limitation the Mortgage File, the Credit File, the Servicing
File, the Monthly Payments, Principal Prepayments, Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds, Servicing Rights, Prepayment
Penalties, and all other rights, benefits, proceeds and obligations arising from
or in connection with such Mortgage Loan, excluding replaced or repurchased
mortgage loans.
Mortgage Loan Documents: The documents in the Mortgage File.
Mortgage Loan Package: A pool of Mortgage Loans sold to the
Purchaser by the Seller on a Closing Date.
Mortgage Loan Schedule: The schedule of Mortgage Loans, with respect
to each Mortgage Loan Package, attached as Exhibit A to the related Assignment
and Conveyance, setting forth the following information with respect to each
Mortgage Loan in the related Mortgage Loan Package: (1) the Seller's Mortgage
Loan identifying number; (2) the Mortgagor's name; (3) the street address of the
Mortgaged Property including the city, state and zip code; (4) a code indicating
whether the Mortgaged Property is owner-occupied, a second home or investment
property; (5) the number and type of residential units constituting the
Mortgaged Property (i.e., a single family residence, a 2-4 family residence, a
unit in a condominium project or a unit in a planned unit development,
manufactured housing); (6) the original months to maturity or the remaining
months to maturity from the related Cut-off Date, in any case based on the
original amortization schedule and, if different, the maturity expressed in the
same manner but based on the actual amortization schedule; (7) the LTV and CLTV,
each at the origination; (8) the Mortgage Interest Rate as of the related
Cut-off Date; (9) the date on which the Monthly Payment was due on the Mortgage
Loan and, if such date is not consistent with the Due Date currently in effect,
such Due Date; (10) the stated maturity date; (11) the amount of the Monthly
Payment as of the related Cut-off Date; (12) the last payment date on which a
Monthly Payment was actually applied to pay interest and the outstanding
principal balance; (13) the original principal amount of the Mortgage Loan; (14)
the principal balance of the Mortgage Loan as of the close of business on the
related Cut-off Date, after deduction of payments of principal due and collected
on or before the related Cut-off Date; (15) with respect to Adjustable Rate
Mortgage Loans, the Interest Rate Adjustment Date; (16) with respect to
Adjustable Rate Mortgage Loans, the Gross Margin; (17) with respect to
Adjustable Rate Mortgage Loans, the Lifetime Rate Cap under the terms of the
Mortgage Note; (18) with respect to Adjustable Rate Mortgage Loans, a code
indicating the type of Index; (19) with respect to Adjustable Rate Mortgage
Loans, the Periodic Rate Cap under the terms of the Mortgage Note; (20) with
respect to Adjustable Rate Mortgage Loans, the Periodic Rate Floor under the
terms of the Mortgage Note; (21) the type of Mortgage Loan (i.e., Fixed Rate,
Adjustable Rate, First Lien, Second Lien); (22) a code indicating the purpose of
the loan (i.e., purchase, rate and term refinance, equity take-out refinance);
(23) a code indicating the documentation style (i.e., full, alternative or
reduced); (24) the loan credit classification (as described in the Underwriting
Guidelines); (25) whether such Mortgage Loan provides for a Prepayment Penalty;
(26) the Prepayment Penalty period of such Mortgage Loan, if applicable; (27) )
a description of the Prepayment Penalty, if applicable; (28) the Mortgage
Interest Rate as of origination; (29) the credit risk score (FICO score) at
origination; (30) the date of origination; (31) the Mortgage Interest Rate
adjustment period; (32) the Mortgage Interest Rate adjustment percentage; (33)
the Mortgage Interest Rate floor; (34) the Mortgage Interest Rate calculation
method (i.e., 30/360, simple interest, other); (35) a code indicating whether
the Mortgage Loan is a Section 32 Mortgage Loan; (36) a code indicating whether
the Mortgage Loan is assumable; (37) a code indicating whether the Mortgage Loan
has been modified; (38) the one year payment history; (39) the Due Date for the
first Monthly Payment; (40) the original Monthly Payment due; (41) with respect
to the related Mortgagor, the debt-to-income ratio; (42) the Appraised Value of
the Mortgaged Property; (44) the sales price of the Mortgaged Property if the
Mortgage Loan was originated in connection with the purchase of the Mortgaged
Property and (45) a code indicating if the Mortgage Loan is a High Cost Loan or
Home Loan as such terms are defined in the then current Standard & Poor's
Glossary. With respect to the Mortgage Loans in the aggregate, the Mortgage Loan
Schedule shall set forth the following information, as of the related Cut-off
Date: (1) the number of Mortgage Loans; (2) the current aggregate outstanding
principal balance of the Mortgage Loans; (3) the weighted average Mortgage
Interest Rate of the Mortgage Loans; and (4) the weighted average maturity of
the Mortgage Loans.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgaged Property: The real property (or leasehold estate, if
applicable) securing repayment of the debt evidenced by a Mortgage Note.
Mortgagor: The obligor on a Mortgage Note.
Non-Servicing Related Representations and Warranties: Those
representations and warranties set forth in Sections 9.01 and 9.02 other than
the representations set forth in the definition of Servicing Related
Representations and Warranties.
Officer's Certificate: A certificate signed by the Chairman of the
Board or the Vice Chairman of the Board or a President or a Vice President and
by the Treasurer or the Secretary or one of the Assistant Treasurers or
Assistant Secretaries of the Seller, and delivered to the Purchaser as required
by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be counsel
for the Seller, reasonably acceptable to the Purchaser, provided that any
Opinion of Counsel relating to (a) the qualification of any account required to
be maintained pursuant to this Agreement as an Eligible Account, (b)
qualification of the Mortgage Loans in a REMIC or (c) compliance with the REMIC
Provisions, must be (unless otherwise stated in such Opinion of Counsel) an
opinion of counsel who (i) is in fact independent of the Seller and any master
servicer of the Mortgage Loans, (ii) does not have any material direct or
indirect financial interest in the Seller or any master servicer of the Mortgage
Loans or in an Affiliate of either and (iii) is not connected with the Seller or
any master servicer of the Mortgage Loans as an officer, employee, director or
person performing similar functions.
OTS: Office of Thrift Supervision, and any successor thereto.
Periodic Rate Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute maximum amount by
which the Mortgage Interest Rate therein may increase or decrease on an Interest
Rate Adjustment Date above or below the Mortgage Interest Rate previously in
effect. The Periodic Rate Cap for each Adjustable Rate Mortgage Loan is the rate
set forth on the Mortgage Loan Schedule.
Person: Any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization, government or any agency or political subdivision thereof.
Preliminary Mortgage Schedule: As defined in Section 3.
Prepayment Penalty: With respect to each Mortgage Loan, the fee, if
any, payable upon the prepayment, in whole or in part, of such Mortgage Loan, as
set forth in the related Mortgage Note.
Prime Rate: The prime rate announced to be in effect from time to
time, as published as the average rate in The Wall Street Journal (Northeast
edition).
Principal Prepayment: Any payment or other recovery of principal on
a Mortgage Loan which is received in advance of its scheduled Due Date,
including any Prepayment Penalty or premium thereon and which is not accompanied
by an amount of interest representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment.
Purchase Price: The price paid on the related Closing Date by the
Purchaser to the Seller in exchange for the Mortgage Loans in a Mortgage Loan
Package as calculated in Section 4 of this Agreement.
Purchase Price and Terms Agreement: With respect to each purchase of
a Mortgage Loan Package hereunder, that certain letter agreement setting forth
the general terms and conditions of such transaction consummated herein and
identifying the Mortgage Loans to be purchased hereunder, by and between the
Seller and the Purchaser.
Purchaser: Xxxxxxx Xxxxx Mortgage Company, a New York limited
partnership, and its successors in interest and assigns, and any successor to
the Purchaser under this Agreement as herein provided.
Qualified Appraiser: An appraiser, duly appointed by the Seller, who
had no interest, direct or indirect in the Mortgaged Property or in any loan
made on the security thereof, and whose compensation is not affected by the
approval or disapproval of the Mortgage Loan, and such appraiser and the
appraisal made by such appraiser both satisfy the requirements of Title XI of
the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 and the
regulations promulgated thereunder, all as in effect on the date the Mortgage
Loan was originated.
Qualified Correspondent: Any Person from which the Seller purchased
Mortgage Loans, provided that the following conditions are satisfied: (i) such
Mortgage Loans were originated pursuant to an agreement between the Seller and
such Person that contemplated that such Person would underwrite mortgage loans
from time to time, for sale to the Seller, in accordance with underwriting
guidelines designated by the Seller ("Designated Guidelines") or guidelines that
do not vary materially from such Designated Guidelines; (ii) such Mortgage Loans
were in fact underwritten as described in clause (i) above and were acquired by
the Seller within 180 days after origination; (iii) either (x) the Designated
Guidelines were, at the time such Mortgage Loans were originated, used by the
Seller in origination of mortgage loans of the same type as the Mortgage Loans
for the Seller's own account or (y) the Designated Guidelines were, at the time
such Mortgage Loans were underwritten, designated by the Seller on a consistent
basis for use by lenders in originating mortgage loans to be purchased by the
Seller; and (iv) the Seller employed, at the time such Mortgage Loans were
acquired by the Seller, pre-purchase or post-purchase quality assurance
procedures (which may involve, among other things, review of a sample of
mortgage loans purchased during a particular time period or through particular
channels) designed to ensure that Persons from which it purchased mortgage loans
properly applied the underwriting criteria designated by the Seller.
Qualified Insurer: An insurance company duly qualified as such under
the laws of the states in which the Mortgaged Properties are located, duly
authorized and licensed in such states to transact the applicable insurance
business and to write the insurance provided, approved as an insurer by Xxxxxx
Xxx and Freddie Mac and whose claims paying ability is rated in the highest
rating category by any of the Rating Agencies with respect to primary mortgage
insurance and in the two highest rating categories by A.M. Best's with respect
to hazard and flood insurance (or such other rating as may be required by a
Rating Agency in connection with a Securitization Transaction in order to
achieve the desired ratings for the securities to be issued in connection with
such Securitization Transaction).
Qualified Substitute Mortgage Loan: A mortgage loan eligible to be
substituted by the Seller for a Deleted Mortgage Loan which must, on the date of
such substitution, (i) have an outstanding principal balance, after deduction of
all scheduled payments due in the month of substitution (or in the case of a
substitution of more than one mortgage loan for a Deleted Mortgage Loan, an
aggregate principal balance), not in excess of the outstanding principal balance
of the Deleted Mortgage Loan; (ii) have a Mortgage Interest Rate not less than
and not more than 1% greater than the Mortgage Interest Rate of the Deleted
Mortgage Loan; (iii) have a remaining term to maturity not greater than and not
more than one (1) year less than that of the Deleted Mortgage Loan (iv) be of
the same type as the Deleted Mortgage Loan (i.e., fixed rate or adjustable rate
with same Periodic Rate Cap, Lifetime Rate Cap, Index and lien priority); and
(v) comply with each representation and warranty (respecting individual Mortgage
Loans) set forth in Section 9 hereof.
Rating Agency: Any of Fitch, Xxxxx'x or Standard & Poor's, or their
respective successors designated by the Purchaser.
Reconstitution: Any Securitization Transaction or Whole Loan
Transfer.
Reconstitution Agreements: The agreement or agreements entered into
by the Seller and the Purchaser and/or certain third parties on the
Reconstitution Date or Dates with respect to any or all of the Mortgage Loans
sold hereunder, in connection with a Whole Loan Transfer, Agency Transfer or a
Securitization Transaction pursuant to Section 13, including, but not limited
to, a seller's warranties and servicing agreement with respect to a Whole Loan
Transfer, and a pooling and servicing agreement and/or seller/servicer
agreements and related custodial/trust agreement and documents with respect to a
Securitization Transaction.
Reconstitution Date: As defined in Section 13.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. xx.xx. 29.1100-229.1123, as such may be
amended from time to time, and subject to such clarification and interpretation
as have been provided by the Commission in the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan.
7, 2005)) or by the staff of the Commission, or as may be provided by the
Commission or its staff from time to time.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating
to a REMIC, which appear at Section 860A through 860G of Subchapter M of Chapter
1, Subtitle A of the Code, and related provisions and regulations, rulings or
pronouncements promulgated thereunder, as the foregoing may be in effect from
time to time.
Remittance Date: The date specified in the Interim Servicing
Agreement (with respect to each Mortgage Loan, as specified therein).
Repurchase Price: With respect to any Mortgage Loan for which a
breach of a representation or warranty under this Agreement is found, a price
equal to the outstanding principal balance of the Mortgage Loan to be
repurchased as of the date of repurchase, plus accrued interest thereon at the
Mortgage Interest Rate from the date on which interest had last been paid
through the date of such repurchase, plus the amount of any outstanding advances
owed to any servicer, plus all costs and expenses incurred by the Purchaser or
any servicer arising out of or based upon such breach, including without
limitation costs and expenses incurred in the enforcement of the Seller's
repurchase obligation hereunder plus any costs and damages incurred by the
related trust with respect to any securitization of the Mortgage Loan in
connection with any violation by such Mortgage Loan of any predatory- or
abusive-lending law.
RESPA: Real Estate Settlement Procedures Act, as amended from time
to time.
Second Lien Mortgage Loan: A Mortgage Loan secured by a second lien
Mortgage on the related Mortgaged Property.
Securities Act: The Securities Act of 1933, as amended.
Securitization Transaction: Any transaction involving either (1) a
sale or other transfer of some or all of the Mortgage Loans directly or
indirectly to an issuing entity in connection with an issuance of publicly
offered or privately placed, rated or unrated mortgage-backed securities or (2)
an issuance of publicly offered or privately placed, rated or unrated
securities, the payments on which are determined primarily by reference to one
or more portfolios of residential mortgage loans consisting, in whole or in
part, of some or all of the Mortgage Loans.
Seller: Novelle Financial Services, Inc., its successors in interest
and assigns.
Seller Information: As defined in Subsection 33.04(a).
Servicing Fee: With respect to each Mortgage Loan subject to the
Interim Servicing Agreement, an amount per month as set forth in the Interim
Servicing Agreement.
Servicing Fee Rate: An amount per annum as set forth in the Interim
Servicing Agreement.
Servicing File: With respect to each Mortgage Loan, the file
retained by the Seller consisting of originals of all documents in the Mortgage
File which are not delivered to the Purchaser or the Custodian and copies of the
Mortgage Loan Documents set forth in as provided in Subsection 6.03 hereof.
[Servicing Related Representations and Warranties: Those
representations and warranties set forth in Section 9.02(a), the first sentence
of (b), the first sentence of (c) (other than the first clause thereof), (d),
(f) (except the last sentence of (f)), (n), (o), (p), the last sentence of (s),
(t) (except the first sentence of (t)), (w), (x), (y), (ii), (qq), (rr), (ss),
(tt) and (iii).]
Servicing Rights: Any and all of the following: (a) any and all
rights to service the Mortgage Loans; (b) any payments to or monies received by
the Seller for servicing the Mortgage Loans; (c) any late fees, penalties or
similar payments with respect to the Mortgage Loans but not including any
Prepayment Penalties; (d) all agreements or documents creating, defining or
evidencing any such servicing rights to the extent they relate to such servicing
rights and all rights of the Seller thereunder; (e) Escrow Payments or other
similar payments with respect to the Mortgage Loans and any amounts actually
collected by the Seller with respect thereto; (f) all accounts and other rights
to payment related to any of the property described in this paragraph; and (g)
any and all documents, files, records, servicing files, servicing documents,
servicing records, data tapes, computer records, or other information pertaining
to the Mortgage Loans or pertaining to the past, present or prospective
servicing of the Mortgage Loans.
Sponsor: The sponsor, as such term is defined in Regulation AB, with
respect to any Securitization Transaction.
Standard & Poor's: Standard & Poor's Rating Services, a division of
The XxXxxx-Xxxx Companies Inc., and its successors in interest.
Standard & Poor's Glossary: The Standard & Poor's LEVELS(R)
Glossary, as may be in effect from time to time.
Stated Principal Balance: As to each Mortgage Loan, (i) the
principal balance of the Mortgage Loan at the related Cut-off Date after giving
effect to payments of principal due on or before such date, to the extent
received, minus (ii) all amounts previously distributed to the Purchaser with
respect to the related Mortgage Loan representing payments or recoveries of
principal or advances in lieu thereof.
Static Pool Information: Static pool information as described in
Item 1105(a)(1)-(3) and 1105(c) of Regulation AB.
Successor Servicer: A servicer designated by the Purchaser pursuant
to Section 8 and Subsection 9.03 which is entitled to the benefits of the
indemnifications set forth in Subsections 9.03 and 14.01.
Third-Party Originator: Each Person, other than a Qualified
Correspondent, that originated Mortgage Loans acquired by the Seller.
Transfer Date: With respect to each Mortgage Loan, (a) the date set
forth in the related Purchase Price and Terms Agreement or (b) such other date
as mutually agreed by the Seller and the Purchaser.
Underwriting Guidelines: The underwriting guidelines of the Seller,
a copy of which is attached hereto as Exhibit J.
VA Approved Lender: Those lenders which are approved by the VA to
act as a lender in connection with the origination of VA mortgage loans.
Whole Loan Agreement: Any Reconstitution Agreement in respect of a
Whole Loan Transfer.
Whole Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans, other than a Securitization Transaction.
SECTION 2. Agreement to Purchase.
The Seller, on each related Closing Date, agrees to sell, and the
Purchaser agrees to purchase, Mortgage Loans having an aggregate principal
balance on the related Cut-off Date in an amount as set forth in the related
Purchase Price and Terms Agreement, or in such other amount as agreed by the
Purchaser and the Seller as evidenced by the aggregate scheduled principal
balance of the Mortgage Loans accepted by the Purchaser on the related Closing
Date.
SECTION 3. Mortgage Schedules.
The Seller shall provide the Purchaser with certain information
constituting a preliminary listing of the Mortgage Loans to be purchased on the
related Closing Date in accordance with the related Purchase Price and Terms
Agreement and this Agreement (a "Preliminary Mortgage Schedule").
The Seller shall deliver the related Mortgage Loan Schedule for the
Mortgage Loans to be purchased on the related Closing Date to the Purchaser at
least two (2) Business Days prior to the related Closing Date. The related
Mortgage Loan Schedule shall be the Preliminary Mortgage Schedule with those
Mortgage Loans which have not been funded prior to the related Closing Date
deleted.
SECTION 4. Purchase Price.
The Purchase Price for each Mortgage Loan shall be the percentage of
par as stated in the related Purchase Price and Terms Agreement (subject to
adjustment as provided therein), multiplied by the Stated Principal Balance, as
of the related Cut-off Date, of the Mortgage Loans, after application of
payments of principal actually received on or before the related Cut-off Date.
In addition to the Purchase Price as described above, the Purchaser
shall pay to the Seller, on the related Closing Date, accrued interest on the
Stated Principal Balance of the related Mortgage Loans as of the related Cut-off
Date at the weighted average Mortgage Interest Rate of those Mortgage Loans from
the date interest was paid through on the Mortgage Loan through the day prior to
the related Closing Date, inclusive. The Purchase Price plus accrued interest as
set forth in the preceding paragraph shall be paid to the Seller by wire
transfer of immediately available funds to an account designated by the Seller
in writing.
The Purchaser shall be entitled to (1) all principal received after
the related Cut-off Date, (2) all other recoveries of late charges, prepayment
penalties, assumption fees or other charges collected after the related Cut-off
Date, and (3) all payments of interest on the Mortgage Loans at the Mortgage
Interest Rate.
SECTION 5. Examination of Mortgage Files.
At least ten (10) Business Days prior to the related Closing Date,
the Seller shall deliver to the Purchaser or its designee in escrow, for
examination with respect to each Mortgage Loan in the related Mortgage Loan
Package to be purchased, the related Mortgage File, including a copy of the
Assignment of Mortgage, pertaining to each Mortgage Loan.
At least ten (10) Business Days prior to the related Closing Date,
with respect to each Mortgage Loan in the related Mortgage Loan Package to be
purchased, the Seller shall make the related Servicing Files and Credit Files
available to the Purchaser for examination at such other location as shall
otherwise be acceptable to the Purchaser.
Such examination of the Mortgage Files may be made by the Purchaser
or its designee at any reasonable time before or after the related Closing Date.
If the Purchaser makes such examination prior to the related Closing Date and
determines, in its sole discretion, that any Mortgage Loans are unacceptable to
the Purchaser for any reason, such Mortgage Loans shall be deleted from the
related Mortgage Loan Schedule, and may be replaced by a Qualified Substitute
Mortgage Loan (or Loans) acceptable to the Purchaser. The Purchaser may, at its
option and without notice to the Seller, purchase some or all of the Mortgage
Loans without conducting any partial or complete examination. The fact that the
Purchaser or its designee has conducted or has failed to conduct any partial or
complete examination of the Mortgage Files or the Credit Files shall not affect
the Purchaser's (or any of its successor's) rights to demand repurchase,
substitution or other relief as provided herein.
In the event that the Seller fails to deliver the Credit Files with
respect to any Mortgage Loan after the related Closing Date, the Seller shall,
upon the request of the Purchaser, repurchase such Mortgage Loan at the price
and in the manner specified in Subsection 9.03.
Purchaser acknowledges and agrees that Purchaser shall obligate any
servicer to hold all nonpublic personal information received or obtained by it
with respect to any Mortgage Loan in accordance with all applicable laws,
including but not limited to the privacy provisions of the Xxxxx-Xxxxx-Xxxxxx
Act ("GLB") and any other comparable federal or state law. Purchaser shall
obligate any servicer to maintain appropriate safeguards to protect the
confidentiality of all information concerning the Mortgage Loans in accordance
with the GLB and its implementing regulations, as the same may be amended from
time to time, and all other applicable federal and state privacy laws and
regulations.
SECTION 6. Conveyance from Seller to Purchaser.
Subsection 6.01 Conveyance of Mortgage Loans.
The Seller, on each related Closing Date, does hereby sell,
transfer, assign, set over and convey to the Purchaser, without recourse, but
subject to the terms of this Agreement, all rights, title and interest of the
Seller in and to the Mortgage Loans in the related Mortgage Loan Package, and
the Mortgage Files and all rights and obligations arising under the documents
contained therein for each Mortgage Loan in the related Mortgage Loan Package.
Subsection 6.02 Books and Records.
Record title to each Mortgage as of the related Closing Date shall
be in the name of MERS, the Seller, an Affiliate of the Seller, the Purchaser or
one or more designees of the Purchaser, as the Purchaser shall select.
Notwithstanding the foregoing, each Mortgage and related Mortgage Note shall be
possessed solely by the Purchaser or the appropriate designee of the Purchaser,
as the case may be. All rights arising out of the Mortgage Loans including, but
not limited to, all funds received by the Seller after the related Cut-off Date
on or in connection with a Mortgage Loan shall be vested in the Purchaser or one
or more designees of the Purchaser; provided, however, that all funds received
on or in connection with a Mortgage Loan shall be received and held by the
Seller in trust for the benefit of the Purchaser or the appropriate designee of
the Purchaser, as the case may be, as the owner of the Mortgage Loans pursuant
to the terms of this Agreement.
The sale of each Mortgage Loan shall be reflected on the Seller's
balance sheet and other financial statements as a sale of assets by the Seller.
The Seller shall be responsible for maintaining, and shall maintain,
a complete set of books and records for each Mortgage Loan which shall be marked
clearly to reflect the ownership of each Mortgage Loan by the Purchaser. In
particular, the Seller shall maintain in its possession, available for
inspection by the Purchaser, and shall deliver to the Purchaser upon demand,
evidence of compliance with all federal, state and local laws, rules and
regulations, including but not limited to documentation as to the method used in
determining the applicability of the provisions of the National Flood Insurance
Act of 1968, as amended, to the Mortgaged Property, documentation evidencing
insurance coverage and periodic inspection reports, as would be retained by a
prudent lender. To the extent that original documents are not required for
purposes of realization of Liquidation Proceeds or Insurance Proceeds, documents
maintained by the Seller may be in the form of microfilm or microfiche so long
as the Seller complies with the customary requirements of a prudent lender.
Subsection 6.03 Delivery of Mortgage Loan Documents.
The Seller shall deliver and release to the Custodian no later than
ten (10) Business Days prior to the related Closing Date the Mortgage Files with
respect to each Mortgage Loan in the related Mortgage Loan Package.
The Custodian shall certify its receipt of all such Mortgage Loan
Documents required to be delivered pursuant to the Custodial Agreement for the
related Closing Date, as evidenced by the Initial Certification of the Custodian
in the form annexed to the Custodial Agreement.
The Seller shall forward to the Custodian, or to such other Person
as the Purchaser shall designate in writing, original documents evidencing an
assumption, modification, consolidation or extension of any Mortgage Loan
entered into in accordance with this Agreement within two (2) weeks of their
execution, provided, however, that the Seller shall provide the Custodian, or to
such other Person as the Purchaser shall designate in writing, with a certified
true copy of any such document submitted for recordation within two (2) weeks of
its execution, and shall promptly provide the original of any document submitted
for recordation or a copy of such document certified by the appropriate public
recording office to be a true and complete copy of the original within ninety
(90) days of its submission for recordation.
In the event any document listed on Exhibit A as constituting a part
of the Mortgage Files and required to be delivered to the Custodian pursuant to
this Subsection 6.03, including an original or copy of any document submitted
for recordation to the appropriate public recording office, is not so delivered
to the Custodian, or to such other Person as the Purchaser shall designate in
writing, on the related Closing Date (other than with respect to the Assignments
of Mortgage which shall be delivered to the Custodian in blank on or prior to
the related Closing Date and recorded subsequently by the Purchaser or its
designee or document submitted for recordation to the appropriate public
recording office), and in the event that the Seller does not cure such failure
within thirty (30) days of discovery or receipt of written notification of such
failure from the Purchaser, the related Mortgage Loan shall, upon the request of
the Purchaser, be repurchased by the Seller at the price and in the manner
specified in Subsection 9.03. The foregoing repurchase obligation shall not
apply in the event that the Seller cannot deliver an original document submitted
for recordation to the appropriate public recording office within the specified
period due to a delay caused by the recording office in the applicable
jurisdiction; provided that (i) the Seller shall instead deliver a recording
receipt of such recording office or, if such recording receipt is not available,
an officer's certificate of an officer of the Seller, confirming that such
documents have been accepted for recording; provided that, upon request of the
Purchaser and delivery by the Purchaser to the Seller of a schedule of the
Mortgage Loans, the Seller shall reissue and deliver to the Purchaser or its
designee said officer's certificate and (ii) such document is delivered within
twelve (12) months of the related Closing Date.
The Seller shall pay all initial recording, registration or transfer
fees, if any, for the assignments of mortgage and any other fees or costs in
transferring all original documents to the Custodian or, upon written request of
the Purchaser, to the Purchaser or the Purchaser's designee. The Purchaser or
the Purchaser's designee shall be responsible for recording the Assignments of
Mortgage and shall be reimbursed by the Seller for the costs associated
therewith pursuant to the preceding sentence.
Subsection 6.04 Quality Control Procedures.
The Seller shall have an internal quality control program that
verifies the existence and accuracy of the legal documents, credit documents,
property appraisals, and underwriting decisions. The program shall include
evaluating and monitoring the overall quality of the Seller's loan production.
The program is to ensure that the Mortgage Loans are originated in accordance
with the Underwriting Guidelines; guard against dishonest, fraudulent, or
negligent acts; and guard against errors and omissions by officers, employees,
or other authorized persons.
SECTION 7. Servicing of the Mortgage Loans.
The Mortgage Loans have been sold by the Seller to the Purchaser on
a servicing released basis. Subject to and upon the terms and conditions of this
Agreement, the Seller hereby sells, transfers, assigns, conveys and delivers to
the Purchaser the Servicing Rights.
The Purchaser shall retain the Seller as contract servicer of the
Mortgage Loans for an interim period pursuant to and in accordance with the
terms and conditions contained in the Interim Servicing Agreement (with respect
to each Mortgage Loan, for an interim period, as specified therein). The
Purchaser and Seller shall execute the Interim Servicing Agreement on the date
hereof, and, with respect to each Mortgage Loan Package to be interim serviced
thereunder, shall execute an Acknowledgement Agreement in the form of Exhibit 6
to the Interim Servicing Agreement on each related Closing Date. Pursuant to the
Interim Servicing Agreement, the Seller shall begin servicing the Mortgage Loans
on behalf of the Purchaser and shall be entitled to the Servicing Fee with
respect to such Mortgage Loans from the related Closing Date until the related
Transfer Date.
SECTION 8. Transfer of Servicing.
On the related Transfer Date, the Purchaser, or its designee, shall
assume all servicing responsibilities related to, and the Seller shall cease all
servicing responsibilities related to the Mortgage Loans. The related Transfer
Date shall be the date determined in accordance with the Interim Servicing
Agreement (with respect to each Mortgage Loan, for an interim period, as
specified therein).
On or prior to the related Transfer Date, the Seller shall, at its
sole cost and expense, take such steps as may be necessary or appropriate to
effectuate and evidence the transfer of the servicing of the related Mortgage
Loans to the Successor Servicer, including but not limited to the following:
(a) Notice to Mortgagors. The Seller shall mail to the Mortgagor of
each related Mortgage Loan a letter advising such Mortgagor of the transfer of
the servicing of the related Mortgage Loan to the Purchaser, or its designee, in
accordance with the Xxxxxxxx Xxxxxxxx National Affordable Housing Act of 1990,
as amended; provided, however, the content and format of the letter shall have
the prior approval of the Purchaser. The Seller shall provide the Purchaser with
copies of all such related notices no later than the related Transfer Date.
(b) Notice to Taxing Authorities and Insurance Companies. The Seller
shall transmit to the applicable taxing authorities and insurance companies
(including primary mortgage insurance policy insurers, if applicable) and/or
agents, notification of the transfer of the servicing to the Purchaser, or its
designee, and instructions to deliver all notices, tax bills and insurance
statements, as the case may be, to the Purchaser or its designee from and after
the related Transfer Date. The Seller shall provide the Purchaser and its
designee with copies of all such notices no later than the related Transfer
Date.
(c) Delivery of Servicing Records. The Seller shall forward to the
Purchaser, or its designee, all servicing records and the Servicing File in the
Seller's possession relating to each related Mortgage Loan including the
information enumerated in the Interim Servicing Agreement (with respect to each
such Mortgage Loan, for an interim period, as specified therein).
(d) Escrow Payments. The Seller shall provide the Purchaser, or its
designee, with immediately available funds by wire transfer in the amount of the
net Escrow Payments and suspense balances and all loss draft balances associated
with the related Mortgage Loans. The Seller shall provide the Purchaser with an
accounting statement of Escrow Payments and suspense balances and loss draft
balances sufficient to enable the Purchaser to reconcile the amount of such
payment with the accounts of the Mortgage Loans. Additionally, the Seller shall
wire transfer to the Purchaser the amount of any agency, trustee or prepaid
Mortgage Loan payments and all other similar amounts held by the Seller.
(e) Payoffs and Assumptions. The Seller shall provide to the
Purchaser, or its designee, copies of all assumption and payoff statements
generated by the Seller on the related Mortgage Loans from the related Cut-off
Date to the related Transfer Date.
(f) Mortgage Payments Received Prior to Transfer Date. Prior to the
related Transfer Date all payments received by the Seller on each related
Mortgage Loan shall be properly applied to the account of the particular
Mortgagor.
(g) Mortgage Payments Received After Transfer Date. The amount of
any related Monthly Payments received by the Seller after the related Transfer
Date shall be forwarded to the Purchaser by overnight mail on or prior to the
date which is one Business Day after the date of receipt. The Seller shall
notify the Purchaser of the particulars of the payment, which notification
requirement shall be satisfied if the Seller forwards with its payment
sufficient information to permit appropriate processing of the payment by the
Purchaser. The Seller shall assume full responsibility for the necessary and
appropriate legal application of such Monthly Payments received by the Seller
after the related Transfer Date with respect to related Mortgage Loans then in
foreclosure or bankruptcy; provided, for purposes of this Agreement, necessary
and appropriate legal application of such Monthly Payments shall include, but
not be limited to, endorsement of a Monthly Payment to the Purchaser with the
particulars of the payment such as the account number, dollar amount, date
received and any special Mortgagor application instructions and the Seller shall
comply with the foregoing requirements with respect to all Monthly Payments
received by the it after the related Transfer Date.
(h) Misapplied Payments. Misapplied payments shall be processed as
follows:
1. All parties shall cooperate in correcting misapplication
errors;
2. The party receiving notice of a misapplied payment
occurring prior to the related Transfer Date and discovered after
the related Transfer Date shall immediately notify the other party;
3. If a misapplied payment which occurred prior to the related
Transfer Date cannot be identified and said misapplied payment has
resulted in a shortage in a Custodial Account or Escrow Account, the
Seller shall be liable for the amount of such shortage. The Seller
shall reimburse the Purchaser for the amount of such shortage within
thirty (30) days after receipt of written demand therefor from the
Purchaser;
4. If a misapplied payment which occurred prior to the related
Transfer Date has created an improper Purchase Price as the result
of an inaccurate outstanding principal balance, a check shall be
issued to the party shorted by the improper payment application
within five (5) Business Days after notice thereof by the other
party; and
5. Any check issued under the provisions of this Section 8(h)
shall be accompanied by a statement indicating the corresponding
Seller and/or the Purchaser Mortgage Loan identification number and
an explanation of the allocation of any such payments.
(i) Books and Records. On the related Transfer Date, the books,
records and accounts of the Seller with respect to the related Mortgage Loans
shall be in accordance with all Accepted Servicing Practices (as defined in the
Interim Servicing Agreement).
(j) Reconciliation. The Seller shall on or before the related
Transfer Date, reconcile principal balances and make any monetary adjustments
necessary to accurately and correctly reconcile all servicing activities with
respect to such Mortgage Loan, including all payments received and all advances
made relating to such Mortgage Loan. Any such monetary adjustments will be
transferred between the Seller and the Purchaser as appropriate.
(k) IRS Forms. The Seller shall file all IRS Forms 1099, 1099A, 1098
or 1041 and K-1 which are required to be filed on or before the related Transfer
Date in relation to the servicing and ownership of the related Mortgage Loans.
The Seller shall provide copies of such forms to the Purchaser upon request and
shall reimburse the Purchaser for any costs or penalties incurred by the
Purchaser due to the Seller's failure to comply with this paragraph.
SECTION 9. Representations, Warranties and Covenants of the Seller;
Remedies for Breach.
Subsection 9.01 Representations and Warranties Regarding the Seller.
The Seller represents, warrants and covenants to the Purchaser, its
successors and assigns and the Successor Servicer that as of the date hereof and
as of each Closing Date:
(a) Due Organization and Authority. The Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all licenses necessary to carry on its business as now being
conducted and is licensed, qualified and in good standing in each state wherein
it owns or leases any material properties or where a Mortgaged Property is
located, if the laws of such state require licensing or qualification in order
to conduct business of the type conducted by the Seller, and in any event the
Seller is in compliance with the laws of any such state to the extent necessary
to ensure the enforceability of the related Mortgage Loan in accordance with the
terms of this Agreement; the Seller has the full power, authority and legal
right to hold, transfer and convey the Mortgage Loans and to execute and deliver
this Agreement and to perform its obligations hereunder; the execution, delivery
and performance of this Agreement (including all instruments of transfer to be
delivered pursuant to this Agreement) by the Seller and the consummation of the
transactions contemplated hereby have been duly and validly authorized; this
Agreement and all agreements contemplated hereby have been duly executed and
delivered and constitute the valid, legal, binding and enforceable obligations
of the Seller, regardless of whether such enforcement is sought in a proceeding
in equity or at law; and all requisite corporate action has been taken by the
Seller to make this Agreement and all agreements contemplated hereby valid and
binding upon the Seller in accordance with their terms;
(b) Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in the ordinary course of
business of the Seller, and the transfer, assignment and conveyance of the
Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are
not subject to the bulk transfer or any similar statutory provisions in effect
in any applicable jurisdiction;
(c) No Conflicts. Neither the execution and delivery of this
Agreement, the acquisition or origination of the Mortgage Loans by the Seller,
the sale of the Mortgage Loans to the Purchaser, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with the
terms and conditions of this Agreement, will conflict with or result in a breach
of any of the terms, conditions or provisions of the Seller's charter or by-laws
or other organizational documents or any legal restriction or any agreement or
instrument to which the Seller is now a party or by which it is bound, or
constitute a default or result in an acceleration under any of the foregoing, or
result in the violation of any law, rule, regulation, order, judgment or decree
to which the Seller or its property is subject, or result in the creation or
imposition of any lien, charge or encumbrance that would have an adverse effect
upon any of its properties pursuant to the terms of any mortgage, contract, deed
of trust or other instrument, or impair the ability of the Purchaser to realize
on the Mortgage Loans, impair the value of the Mortgage Loans, or impair the
ability of the Purchaser to realize the full amount of any insurance benefits
accruing pursuant to this Agreement;
(d) Ability To Perform; Solvency. The Seller does not believe, nor
does it have any reason or cause to believe, that it cannot perform each and
every covenant contained in this Agreement. The Seller is solvent and the sale
of the Mortgage Loans will not cause the Seller to become insolvent. The sale of
the Mortgage Loans is not undertaken with the intent to hinder, delay or defraud
any of Seller's creditors;
(e) No Litigation Pending. There is no action, suit, proceeding or
investigation pending or threatened against the Seller, before any court,
administrative agency or other tribunal asserting the invalidity of this
Agreement, seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or which, either in any one instance or in the
aggregate, may result in any material adverse change in the business,
operations, financial condition, properties or assets of the Seller, or in any
material impairment of the right or ability of the Seller to carry on its
business substantially as now conducted, or in any material liability on the
part of the Seller, or which would draw into question the validity of this
Agreement or the Mortgage Loans or of any action taken or to be taken in
connection with the obligations of the Seller contemplated herein, or which
would be likely to impair materially the ability of the Seller to perform under
the terms of this Agreement. There is no action, suit, proceeding or
investigation pending against the Seller with respect to the Mortgage Loans
relating to fraud, predatory lending, servicing or closing practices;
(f) No Consent Required. No consent, approval, authorization or
order of, or registration or filing with, or notice to any court or governmental
agency or body including HUD, the FHA or the VA is required for the execution,
delivery and performance by the Seller of or compliance by the Seller with this
Agreement or the Mortgage Loans, the delivery of a portion of the Mortgage Files
to the Custodian or the sale of the Mortgage Loans or the consummation of the
transactions contemplated by this Agreement, or if required, such approval has
been obtained prior to the related Closing Date;
(g) Selection Process. The Mortgage Loans were selected from among
the outstanding one- to four-family mortgage loans in the Seller's portfolio at
the related Closing Date as to which the representations and warranties set
forth in Subsection 9.02 could be made and such selection was not made in a
manner so as to affect adversely the interests of the Purchaser;
(h) Delivery to the Custodian. The Mortgage Note, the Mortgage, the
Assignment of Mortgage and any other documents required to be delivered with
respect to each Mortgage Loan pursuant to the Custodial Agreement, and any other
documents required to be delivered with respect to each Mortgage Loan pursuant
to Section 6.03 hereof, shall be delivered to the Custodian. With respect to
each Mortgage Loan, the Seller will be in possession of a complete Mortgage File
in compliance with Exhibit A hereto, except for such documents as will be
delivered to the Custodian;
(i) Mortgage Loan Characteristics. The characteristics of the
Mortgage Loans are as set forth on the description of the pool characteristics
for the Mortgage Loans delivered pursuant to Section 11 on the related Closing
Date in the form attached as Exhibit I hereto;
(j) No Untrue Information. Neither this Agreement nor any
information, statement, tape, diskette, report, form, or other document
furnished or to be furnished pursuant to this Agreement or any Reconstitution
Agreement or in connection with the transactions contemplated hereby (including
any Securitization Transaction, Whole Loan Transfer or Agency Transfer) contains
an untrue statement of fact or omits to state a fact necessary to make the
statements contained herein or therein not misleading;
(k) Financial Statements. The Seller has delivered to the Purchaser
financial statements as to its last three complete fiscal years and any later
quarter ended more than 60 days prior to the execution of this Agreement. All
such financial statements fairly present the pertinent results of operations and
changes in financial position for each of such periods and the financial
position at the end of each such period of the Seller and its subsidiaries and
have been prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as set forth in the
notes thereto. There has been no change in the business, operations, financial
condition, properties or assets of the Seller since the date of the Seller's
financial statements that would have a material adverse effect on its ability to
perform its obligations under this Agreement. The Seller has completed any forms
requested by the Purchaser in a timely manner and in accordance with the
provided instructions;
(l) Loan Experience. The Seller has delivered information as to its
loan gain and loss experience in respect of foreclosures, its loan delinquency
experience for the immediately preceding three-year period, prepayment speed and
individual loan loss severities and delinquency histories for at least the
immediately preceding year, in each case with respect to mortgage loans owned by
it and such mortgage loans serviced for others during such period, and all such
information so delivered shall be true and correct in all material respects;
(m) No Brokers. The Seller has not dealt with any broker, investment
banker, agent or other person that may be entitled to any commission or
compensation in connection with the sale of the Mortgage Loans;
(n) Sale Treatment. The Seller intends to reflect the transfer of
the Mortgage Loans as a sale on the books and records of the Seller and the
Seller has determined that the disposition of the Mortgage Loans pursuant to
this Agreement will be afforded sale treatment for tax and accounting purposes;
(o) Owner of Record. Except for a MERS Designated Mortgage Loan, the
Seller is the owner of record of each Mortgage and the indebtedness evidenced by
each Mortgage Note, except for any Assignments of Mortgage which have been sent
for recording, and upon recordation the Seller will be the owner of record of
each Mortgage and the indebtedness evidenced by each Mortgage Note, and upon the
sale of the Mortgage Loans to the Purchaser, the Seller will retain the Mortgage
Files with respect thereto in trust only for the purpose of servicing and
supervising the servicing of each Mortgage Loan;
(p) Reasonable Purchase Price. The Seller deems the consideration
received upon the sale of the Mortgage Loans under this Agreement to be fair
consideration and reasonably equivalent value for the Mortgage Loans;
(q) Seller's Origination. The Seller's decision to originate any
mortgage loan or to deny any mortgage loan application is an independent
decision based upon Xxxxxx's underwriting guidelines, and is in no way made as a
result of Purchaser's decision to purchase, or not to purchase, or the price
Purchaser may offer to pay for, any such mortgage loan, if originated;
(r) Reports. On or prior to the date which is two Business Days
after the related Closing Date, Seller will provide the Custodian and the
Purchaser with a MERS Report reflecting the Custodian as Investor with respect
to each MERS Designated Mortgage Loan and no Person as Interim Funder for each
MERS Designated Mortgage Loan; and
(s) MERS Designations. With respect to each MERS Designated Mortgage
Loan, on the related Closing Date, the Seller has initiated the process of
designating the Custodian as the Investor on the MERS(R) System. With respect to
each MERS Designated Mortgage Loan, no Person is listed as Interim Funder on the
MERS(R) System.
Subsection 9.02 Representations and Warranties Regarding Individual
Mortgage Loans.
The Seller hereby represents and warrants to the Purchaser, its
successors and assigns and the Successor Servicer that, as to each Mortgage
Loan, as of the related Closing Date for such Mortgage Loan:
(a) Mortgage Loans as Described. The information set forth in the
related Mortgage Loan Schedule is complete, true and correct;
(b) Payments Current. All payments required to be made up to the
related Closing Date for the Mortgage Loan under the terms of the Mortgage Note,
other than payments for which the related due date was not thirty (30) or more
days prior to the related Closing Date, have been made and credited. No Mortgage
Loan has been delinquent for thirty (30) or more days at any time since the
origination of the Mortgage Loan;
(c) No Outstanding Charges. There are no defaults in complying with
the terms of the Mortgage, and no delinquent taxes, governmental assessments,
insurance premiums, water, sewer and municipal charges, leasehold payments or
ground rents, or an escrow of funds has been established in an amount sufficient
to pay for every such item which remains unpaid and which has been assessed but
is not yet due and payable. The Seller has not advanced funds, or induced,
solicited or knowingly received any advance of funds by a party other than the
Mortgagor, directly or indirectly, for the payment of any amount required under
the Mortgage Loan, except for interest accruing from the date of the Mortgage
Note or date of disbursement of the Mortgage Loan proceeds, whichever is
earlier, to the day which precedes by one month the Due Date of the first
installment of principal and interest;
(d) Original Terms Unmodified. The terms of the Mortgage Note and
Mortgage have not been impaired, waived, altered or modified in any respect,
from the date of origination except by a written instrument which has been
recorded, if necessary to protect the interests of the Purchaser, and which has
been delivered to the Custodian or to such other Person as the Purchaser shall
designate in writing, and the terms of which are reflected in the related
Mortgage Loan Schedule. No Mortgage Loan has been modified so as to restructure
the payment obligations or re-age the Mortgage Loan. The substance of any such
waiver, alteration or modification has been approved by the title insurer, if
any, to the extent required by the policy, and its terms are reflected on the
related Mortgage Loan Schedule, if applicable. No Mortgagor has been released,
in whole or in part, except in connection with an assumption agreement, approved
by the issuer of the title insurer, to the extent required by the policy, and
which assumption agreement is part of the Mortgage Loan File delivered to the
Custodian or to such other Person as the Purchaser shall designate in writing
and the terms of which are reflected in the related Mortgage Loan Schedule;
(e) No Defenses. The Mortgage Loan is not subject to any right of
rescission, set-off, counterclaim or defense, including without limitation the
defense of usury, nor will the operation of any of the terms of the Mortgage
Note or the Mortgage, or the exercise of any right thereunder, render either the
Mortgage Note or the Mortgage unenforceable, in whole or in part, or subject to
any right of rescission, set-off, counterclaim or defense, including without
limitation the defense of usury, and no such right of rescission, set-off,
counterclaim or defense has been asserted with respect thereto, and no Mortgagor
was a debtor in any state or Federal bankruptcy or insolvency proceeding at the
time the Mortgage Loan was originated;
(f) Hazard Insurance. Pursuant to the terms of the Mortgage, all
buildings or other improvements upon the Mortgaged Property are insured by a
generally acceptable insurer against loss by fire, hazards of extended coverage
and such other hazards as are provided for in the Xxxxxx Xxx Guides or by
Freddie Mac, as well as all additional requirements set forth in Section 2.10 of
the Interim Servicing Agreement. If required by the National Flood Insurance Act
of 1968, as amended, each Mortgage Loan is covered by a flood insurance policy
meeting the requirements of the current guidelines of the Federal Insurance
Administration is in effect which policy conforms to Xxxxxx Xxx and Freddie Mac,
as well as all additional requirements set forth in Section 2.10 of the Interim
Servicing Agreement. All individual insurance policies contain a standard
mortgagee clause naming the Seller and its successors and assigns as mortgagee,
and all premiums thereon have been paid. The Mortgage obligates the Mortgagor
thereunder to maintain the hazard insurance policy at the Mortgagor's cost and
expense, and on the Mortgagor's failure to do so, authorizes the holder of the
Mortgage to obtain and maintain such insurance at such Xxxxxxxxx's cost and
expense, and to seek reimbursement therefor from the Mortgagor. Where required
by state law or regulation, the Mortgagor has been given an opportunity to
choose the carrier of the required hazard insurance, provided the policy is not
a "master" or "blanket" hazard insurance policy covering a condominium, or any
hazard insurance policy covering the common facilities of a planned unit
development. The hazard insurance policy is the valid and binding obligation of
the insurer, is in full force and effect, and will be in full force and effect
and inure to the benefit of the Purchaser upon the consummation of the
transactions contemplated by this Agreement. The Seller has not engaged in, and
has no knowledge of the Mortgagor's or any servicer's having engaged in, any act
or omission which would impair the coverage of any such policy, the benefits of
the endorsement provided for herein, or the validity and binding effect of such
policy, without limitation, no unlawful fee, commission, kickback or other
unlawful compensation or value of any kind has been or will be received,
retained or realized by any attorney, firm or other person or entity, and no
such unlawful items have been received, retained or realized by the Seller;
(g) Compliance with Applicable Laws. Any and all requirements of any
federal, state or local law including, without limitation, usury,
truth-in-lending, real estate settlement procedures, consumer credit protection,
equal credit opportunity and disclosure laws or unfair and deceptive practices
laws applicable to the Mortgage Loan including, without limitation, any
provisions relating to prepayment penalties, have been complied with, the
consummation of the transactions contemplated hereby will not involve the
violation of any such laws or regulations. Each Mortgage Loan at the time it was
made complied in all material respects with applicable local, state, and federal
laws, including, but not limited to, all applicable predatory and abusive
lending laws. The Seller shall maintain in its possession, available for the
Purchaser's inspection, and shall deliver to the Purchaser upon demand, evidence
of compliance with all such requirements;
(h) No Satisfaction of Mortgage. The Mortgage has not been
satisfied, canceled, subordinated or rescinded, in whole or in part, and the
Mortgaged Property has not been released from the lien of the Mortgage, in whole
or in part, nor has any instrument been executed that would effect any such
release, cancellation, subordination or rescission. The Seller has not waived
the performance by the Mortgagor of any action, if the Mortgagor's failure to
perform such action would cause the Mortgage Loan to be in default, nor has the
Seller waived any default resulting from any action or inaction by the
Mortgagor;
(i) Location and Type of Mortgaged Property. The Mortgaged Property
is located in the state identified in the related Mortgage Loan Schedule and
consists of real property with a detached single family residence erected
thereon, or a two- to four-family dwelling, or an individual condominium unit in
a low-rise condominium project, or an individual unit in a planned unit
development or a de minimis planned unit development which is in each case four
stories or less, provided, however, that any mobile home (double wide only) or
manufactured dwelling shall conform with the applicable Xxxxxx Xxx and Xxxxxxx
Mac requirements regarding such dwellings and that no Mortgage Loan is secured
by a single parcel of real property with a cooperative housing corporation, a
log home or a mobile home erected thereon or by a mixed-use property, a property
in excess of 10 acres, or other unique property types. As of the date of
origination, no portion of the Mortgaged Property was used for commercial
purposes, and since the date of origination, no portion of the Mortgaged
Property has been used for commercial purposes; provided, that Mortgaged
Properties which contain a home office shall not be considered as being used for
commercial purposes as long as the Mortgaged Property has not been altered for
commercial purposes and is not storing any chemicals or raw materials other than
those commonly used for homeowner repair, maintenance and/or household purposes.
With respect to any Mortgage Loan secured by a Mortgaged Property improved by
manufactured housing, (i) the related manufactured housing unit is permanently
affixed to the land, and (ii) the related manufactured housing unit and the
related land are subject to a Mortgage properly filed in the appropriate public
recording office and naming the Seller as mortgagee and (iii) the related
Mortgaged Property is not located in the state of New Jersey.
(j) Valid First or Second Lien. The Mortgage is a valid, subsisting,
enforceable and perfected, first or second lien (as applicable) on the Mortgaged
Property, including all buildings and improvements on the Mortgaged Property and
all installations and mechanical, electrical, plumbing, heating and air
conditioning systems located in or annexed to such buildings, and all additions,
alterations and replacements made at any time with respect to the foregoing. The
lien of the Mortgage is subject only to:
1. the lien of current real property taxes and assessments not
yet due and payable;
2. covenants, conditions and restrictions, rights of way,
easements and other matters of the public record as of the date of
recording acceptable to prudent mortgage lending institutions
generally and specifically referred to in the lender's title
insurance policy delivered to the originator of the Mortgage Loan
and (a) specifically referred to or otherwise considered in the
appraisal made for the originator of the Mortgage Loan or (b) which
do not adversely affect the Appraised Value of the Mortgaged
Property set forth in such appraisal;
3. other matters to which like properties are commonly subject
which do not materially interfere with the benefits of the security
intended to be provided by the Mortgage or the use, enjoyment, value
or marketability of the related Mortgaged Property; and
4. with respect to Second Lien Mortgage Loans, the lien of the
first mortgage on the Mortgaged Property.
Any security agreement, chattel mortgage or equivalent document
related to and delivered in connection with the Mortgage Loan establishes and
creates a valid, subsisting, enforceable and perfected (A) first lien and first
priority security interest with respect to each first lien mortgage loan, or (B)
second lien and second priority security interest with respect to each Second
Lien Mortgage Loan, in either case, on the property described therein and Seller
has full right to sell and assign the same to Purchaser.
(k) Validity of Mortgage Documents. The Mortgage Note and the
Mortgage and any other agreement executed and delivered by a Mortgagor in
connection with a Mortgage Loan are genuine, and each is the legal, valid and
binding obligation of the maker thereof enforceable in accordance with its terms
(including, without limitation, any provisions therein relating to Prepayment
Charges). All parties to the Mortgage Note, the Mortgage and any other such
related agreement had legal capacity to enter into the Mortgage Loan and to
execute and deliver the Mortgage Note, the Mortgage and any such agreement, and
the Mortgage Note, the Mortgage and any other such related agreement have been
duly and properly executed by other such related parties. No fraud, error,
omission, misrepresentation or similar occurrence with respect to a Mortgage
Loan has taken place on the part of any Person, including without limitation,
the Mortgagor, any appraiser, any builder or developer, or any other party
involved in the origination or servicing of the Mortgage Loan;
(l) Full Disbursement of Proceeds. The Mortgage Loan has been closed
and the proceeds of the Mortgage Loan have been fully disbursed and there is no
requirement for future advances thereunder, and any and all requirements as to
completion of any on-site or off-site improvement and as to disbursements of any
escrow funds therefor have been complied with. All costs, fees and expenses
incurred in making or closing the Mortgage Loan and the recording of the
Mortgage were paid, and the Mortgagor is not entitled to any refund of any
amounts paid or due under the Mortgage Note or Mortgage;
(m) Ownership. The Seller is the sole owner of record and holder of
the Mortgage Loan and the indebtedness evidenced by each Mortgage Note. The
Mortgage Loan is not assigned or pledged, and the Seller has good, indefeasible
and marketable title thereto, and has full right to transfer and sell the
Mortgage Loan to the Purchaser free and clear of any encumbrance, equity,
participation interest, lien, pledge, charge, claim or security interest, and
has full right and authority subject to no interest or participation of, or
agreement with, any other party, to sell and assign each Mortgage Loan pursuant
to this Agreement and following the sale of each Mortgage Loan, the Purchaser
will own such Mortgage Loan free and clear of any encumbrance, equity,
participation interest, lien, pledge, charge, claim or security interest. The
Seller intends to relinquish all rights to possess, control and monitor the
Mortgage Loan. After the related Closing Date, the Seller will have no right to
modify or alter the terms of the sale of the Mortgage Loan and the Seller will
have no obligation or right to repurchase the Mortgage Loan or substitute
another Mortgage Loan, except as provided in this Agreement;
(n) Doing Business. All parties which have had any interest in the
Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or,
during the period in which they held and disposed of such interest, were) (1) in
compliance with any and all applicable licensing requirements of the laws of the
state wherein the Mortgaged Property is located, and (2) either (i) organized
under the laws of such state, or (ii) qualified to do business in such state, or
(iii) a federal savings and loan association, a savings bank or a national bank
having a principal office in such state, or (3) not doing business in such
state;
(o) CLTV, LTV. No Mortgage Loan that is a Second Lien Mortgage Loan
has a CLTV in excess of 100%. No Mortgage Loan has an LTV greater than 100%.
(p) Title Insurance. The Mortgage Loan is covered by an ALTA
lender's title insurance policy, or with respect to any Mortgage Loan for which
the related Mortgaged Property is located in California a CLTA lender's title
insurance policy, or other generally acceptable form of policy or insurance
acceptable to Xxxxxx Xxx or Freddie Mac and each such title insurance policy is
issued by a title insurer acceptable to Xxxxxx Xxx or Freddie Mac and qualified
to do business in the jurisdiction where the Mortgaged Property is located,
insuring the Seller, its successors and assigns, as to the first priority lien
(with respect to first lien Mortgage Loans) or second priority lien (with
respect to Second Lien Mortgage Loans) of the Mortgage in the original principal
amount of the Mortgage Loan, subject only to the exceptions contained in clauses
(1), (2), (3) and (4) of paragraph (j) of this Subsection 9.02, and in the case
of adjustable rate Mortgage Loans, against any loss by reason of the invalidity
or unenforceability of the lien resulting from the provisions of the Mortgage
providing for adjustment to the Mortgage Interest Rate and Monthly Payment.
Where required by state law or regulation, the Mortgagor has been given the
opportunity to choose the carrier of the required mortgage title insurance.
Additionally, such lender's title insurance policy affirmatively insures ingress
and egress, and against encroachments by or upon the Mortgaged Property or any
interest therein. The title policy does not contain any special exceptions
(other than the standard exclusions) for zoning and uses and has been marked to
delete the standard survey exceptions or to replace the standard survey
exception with a specific survey reading. The Seller, its successors and
assigns, are the sole insureds of such lender's title insurance policy, and such
lender's title insurance policy is valid and remains in full force and effect
and will be in force and effect upon the consummation of the transactions
contemplated by this Agreement. No claims have been made under such lender's
title insurance policy, and no prior holder of the related Mortgage, including
the Seller, has done, by act or omission, anything which would impair the
coverage of such lender's title insurance policy, including without limitation,
no unlawful fee, commission, kickback or other unlawful compensation or value of
any kind has been or will be received, retained or realized by any attorney,
firm or other person or entity, and no such unlawful items have been received,
retained or realized by the Seller;
(q) No Defaults. Other than payments due but not yet thirty (30)
days or more delinquent, there is no default, breach, violation or event which
would permit acceleration existing under the Mortgage or the Mortgage Note and
no event which, with the passage of time or with notice and the expiration of
any grace or cure period, would constitute a default, breach, violation or event
which would permit acceleration, and neither the Seller nor any of its
affiliates nor any of their respective predecessors, have waived any default,
breach, violation or event which would permit acceleration. With respect to each
Second Lien Mortgage Loan, (i) the prior mortgage is in full force and effect,
(ii) there is no default, breach, violation or event of acceleration existing
under such prior mortgage or the related mortgage note, (iii) as of the related
Closing Date, no event which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a default, breach,
violation or event of acceleration thereunder, and either (A) the prior mortgage
contains a provision which allows or (B) applicable law requires, the mortgagee
under the Second Lien Mortgage Loan to receive notice of, and affords such
mortgagee an opportunity to cure any default by payment in full or otherwise
under the prior mortgage;
(r) No Mechanics' Liens. There are no mechanics' or similar liens or
claims which have been filed for work, labor or material (and no rights are
outstanding that under law could give rise to such liens) affecting the related
Mortgaged Property which are or may be liens prior to, or equal or coordinate
with, the lien of the related Mortgage, unless insured against by a title
insurance policy;
(s) Location of Improvements; No Encroachments. All improvements
which were considered in determining the Appraised Value of the Mortgaged
Property lay wholly within the boundaries and building restriction lines of the
Mortgaged Property, and no improvements on adjoining properties encroach upon
the Mortgaged Property. No improvement located on or being part of the Mortgaged
Property is in violation of any applicable zoning law or regulation;
(t) Origination; Payment Terms. The Mortgage Loan was originated by
a mortgagee approved by the Secretary of Housing and Urban Development pursuant
to Sections 203 and 211 of the National Housing Act, a savings and loan
association, a savings bank, a commercial bank, credit union, insurance company
or other similar institution which is supervised and examined by a federal or
state authority. No Mortgage Loan contains terms or provisions which would
result in negative amortization. Principal payments on the Mortgage Loan
commenced no more than sixty (60) days after funds were disbursed in connection
with the Mortgage Loan. The Mortgage Interest Rate as well as the Lifetime Rate
Cap and the Periodic Cap, are as set forth on Exhibit I hereto. The Mortgage
Note is payable in equal monthly installments of principal and/or interest,
which installments of interest, with respect to Adjustable Rate Mortgage Loans,
are subject to change due to the adjustments to the Mortgage Interest Rate on
each Interest Rate Adjustment Date, with interest calculated and payable in
arrears, sufficient (except with respect to interest-only loans) to amortize the
Mortgage Loan fully by the stated maturity date, over an original term of not
more than thirty (30) years from commencement of amortization. The Mortgage Loan
is payable on the first day of each month. There are no Convertible Mortgage
Loans which contain a provision allowing the Mortgagor to convert the Mortgage
Note from an adjustable interest rate Mortgage Note to a fixed interest rate
Mortgage Note. No Mortgage Loan is a balloon mortgage loan that has an original
stated maturity of less than seven (7) years;
(u) Customary Provisions. The Mortgage contains customary and
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for the realization against the Mortgaged Property of the
benefits of the security provided thereby, including, (i) in the case of a
Mortgage designated as a deed of trust, by trustee's sale, and (ii) otherwise by
judicial foreclosure. Upon default by a Mortgagor on a Mortgage Loan and
foreclosure on, or trustee's sale of, the Mortgaged Property pursuant to the
proper procedures, the holder of the Mortgage Loan will be able to deliver good
and merchantable title to the Mortgaged Property. There is no homestead or other
exemption available to a Mortgagor which would interfere with the right to sell
the Mortgaged Property at a trustee's sale or the right to foreclose the
Mortgage, subject to applicable federal and state laws and judicial precedent
with respect to bankruptcy and right of redemption or similar law;
(v) Conformance with Agency and Underwriting Standards. The Mortgage
Loan was underwritten in accordance with the Underwriting Standards (a copy of
which is attached hereto as Exhibit J). The Mortgage Note and Mortgage are on
forms acceptable to Freddie Mac or Xxxxxx Xxx and the Seller has not made any
representations to a Mortgagor that are inconsistent with the mortgage
instruments used;
(w) Occupancy of the Mortgaged Property. The Mortgaged Property is
lawfully occupied under applicable law. All inspections, licenses and
certificates required to be made or issued with respect to all occupied portions
of the Mortgaged Property and, with respect to the use and occupancy of the
same, including but not limited to certificates of occupancy and fire
underwriting certificates, have been made or obtained from the appropriate
authorities;
(x) No Additional Collateral. The Mortgage Note is not and has not
been secured by any collateral except the lien of the corresponding Mortgage and
the security interest of any applicable security agreement or chattel mortgage
referred to in clause (j) above;
(y) Deeds of Trust. In the event the Mortgage constitutes a deed of
trust, a trustee, authorized and duly qualified under applicable law to serve as
such, has been properly designated and currently so serves and is named in the
Mortgage, and no fees or expenses are or will become payable by the Purchaser to
the trustee under the deed of trust, except in connection with a trustee's sale
after default by the Mortgagor;
(z) Acceptable Investment. There are no circumstances or conditions
with respect to the Mortgage, the Mortgaged Property, the Mortgagor, the
Mortgage File or the Mortgagor's credit standing that can reasonably be expected
to cause private institutional investors to regard the Mortgage Loan as an
unacceptable investment, cause the Mortgage Loan to become delinquent, or
adversely affect the value or marketability of the Mortgage Loan, or cause the
Mortgage Loans to prepay during any period materially faster or slower than the
mortgage loans originated by the Seller generally;
(aa) Delivery of Mortgage Documents. The Mortgage Note, the
Mortgage, the Assignment of Mortgage and any other documents constituting the
Mortgage File for each Mortgage Loan have been delivered to the Custodian. The
Seller is in possession of a complete, true and accurate Mortgage File in
compliance with Exhibit A hereto, except for such documents the originals of
which have been delivered to the Custodian;
(bb) Condominiums/Planned Unit Developments. If the Mortgaged
Property is a condominium unit or a planned unit development (other than a de
minimis planned unit development) such condominium or planned unit development
project such Mortgage Loan was originated in accordance with, and the Mortgaged
Property meets the guidelines set forth in the Seller's Underwriting Guidelines;
(cc) Transfer of Mortgage Loans. The Assignment of Mortgage (except
with respect to any Mortgage that has been recorded in the name of MERS or its
designee), with respect to each Mortgage Loan is in recordable form and is
acceptable for recording under the laws of the jurisdiction in which the
Mortgaged Property is located. The transfer, assignment and conveyance of the
Mortgage Notes and the Mortgages by the Seller are not subject to the bulk
transfer or similar statutory provisions in effect in any applicable
jurisdiction;
(dd) Due-On-Sale. With respect to each Fixed Rate Mortgage Loan, the
Mortgage contains an enforceable provision for the acceleration of the payment
of the unpaid principal balance of the Mortgage Loan in the event that the
Mortgaged Property is sold or transferred without the prior written consent of
the mortgagee thereunder, and such provision is enforceable;
(ee) Assumability. None of the Mortgage Loans are, by their terms,
assumable;
(ff) No Buydown Provisions; No Graduated Payments or Contingent
Interests. The Mortgage Loan does not contain provisions pursuant to which
Monthly Payments are paid or partially paid with funds deposited in any separate
account established by the Seller, the Mortgagor, or anyone on behalf of the
Mortgagor, or paid by any source other than the Mortgagor nor does it contain
any other similar provisions which may constitute a "buydown" provision. The
Mortgage Loan is not a graduated payment mortgage loan and the Mortgage Loan
does not have a shared appreciation or other contingent interest feature;
(gg) Consolidation of Future Advances. Any future advances made to
the Mortgagor prior to the related Cut-off Date have been consolidated with the
outstanding principal amount secured by the Mortgage, and the secured principal
amount, as consolidated, bears a single interest rate and single repayment term.
The lien of the Mortgage securing the consolidated principal amount is expressly
insured as having first or second lien priority (as applicable) by a title
insurance policy, an endorsement to the policy insuring the mortgagee's
consolidated interest or by other title evidence acceptable to Xxxxxx Xxx and
Freddie Mac. The consolidated principal amount does not exceed the original
principal amount of the Mortgage Loan;
(hh) Mortgaged Property Undamaged; No Condemnation Proceedings.
There is no proceeding pending or to the best of Seller's knowledge threatened
for the total or partial condemnation of the Mortgaged Property. The Mortgaged
Property is undamaged by waste, fire, earthquake or earth movement, windstorm,
flood, hurricane, tornado or other casualty so as to affect adversely the value
of the Mortgaged Property as security for the Mortgage Loan or the use for which
the premises were intended and each Mortgaged Property is in good repair;
(ii) Collection Practices; Escrow Deposits; Interest Rate
Adjustments. The origination, servicing and collection practices used by the
Seller, and any prior servicer with respect to the Mortgage Loan have been in
all respects in compliance with Accepted Servicing Practices, applicable laws
and regulations, and have been in all respects legal and proper and prudent in
the mortgage origination and servicing business. With respect to escrow deposits
and Escrow Payments, all such payments are in the possession of, or under the
control of the Seller and there exist no deficiencies in connection therewith
for which customary arrangements for repayment thereof have not been made. All
Escrow Payments have been collected in full compliance with state and federal
law and the provisions of the related Mortgage Note and Mortgage. An escrow of
funds is not prohibited by applicable law and has been established in an amount
sufficient to pay for every item that remains unpaid and has been assessed but
is not yet due and payable. No escrow deposits or Escrow Payments or other
charges or payments due the Seller have been capitalized under the Mortgage or
the Mortgage Note. All Mortgage Interest Rate adjustments have been made in
strict compliance with state and federal law and the terms of the related
Mortgage and Mortgage Note on the related Interest Rate Adjustment Date. The
Seller executed and delivered any and all notices required under applicable law
and the terms of the related Mortgage Note and Mortgage regarding the Mortgage
Interest Rate and the Monthly Payment adjustments. Any interest required to be
paid pursuant to state, federal and local law has been properly paid and
credited;
(jj) Conversion to Fixed Interest Rate. With respect to Adjustable
Rate Mortgage Loans, the Mortgage Loan is not a Convertible Mortgage Loan;
(kk) Other Insurance Policies. To the best of Seller's knowledge, no
action, inaction or event has occurred and no state of facts exists or has
existed that has resulted or will result in the exclusion from, denial of, or
defense to coverage under any applicable, special hazard insurance policy, or
bankruptcy bond, irrespective of the cause of such failure of coverage. In
connection with the placement of any such insurance, no commission, fee, or
other compensation has been or will be received by the Seller or by any officer,
director, or employee of the Seller or any designee of the Seller or any
corporation in which the Seller or any officer, director, or employee had a
financial interest at the time of placement of such insurance;
(ll) No Violation of Environmental Laws. The Mortgaged Property is
free from any and all toxic or hazardous substances and there exists no
violation of any local, state or federal environmental law, rule or regulation.
There is no pending action or proceeding directly involving the Mortgaged
Property in which compliance with any environmental law, rule or regulation is
an issue; and nothing further remains to be done to satisfy in full all
requirements of each such law, rule or regulation constituting a prerequisite to
use and enjoyment of said property;
(mm) Servicemembers Civil Relief Act of 2003. The Mortgagor has not
notified the Seller, and the Seller has no knowledge of any relief requested or
allowed to the Mortgagor under the Servicemembers Civil Relief Act of 2003;
(nn) Appraisal. The Mortgage File contains an appraisal of the
related Mortgaged Property signed prior to the approval of the Mortgage Loan
application by a Qualified Appraiser, duly appointed by the related originator,
who had no interest, direct or indirect in the Mortgaged Property or in any loan
made on the security thereof, and whose compensation is not affected by the
approval or disapproval of the Mortgage Loan, and the appraisal and appraiser
both satisfy the requirements of Xxxxxx Xxx or Freddie Mac and Title XI of the
Financial Institutions Reform, Recovery, and Enforcement Act of 1989 and the
regulations promulgated thereunder, all as in effect on the date the Mortgage
Loan was originated;
(oo) Disclosure Materials. To the extent required by law, the
Mortgagor has executed a statement to the effect that the Mortgagor has received
all disclosure materials required by, and the Seller has complied with, all
applicable law with respect to the making of the Mortgage Loans. The Seller
shall maintain such statement in the Mortgage File;
(pp) Construction or Rehabilitation of Mortgaged Property. No
Mortgage Loan was made in connection with the construction or rehabilitation of
a Mortgaged Property or facilitating the trade-in or exchange of a Mortgaged
Property;
(qq) Value of Mortgaged Property. The Seller has no knowledge of any
circumstances existing that could be expected to adversely affect the value or
the marketability of any Mortgaged Property or Mortgage Loan or to cause the
Mortgage Loans to prepay during any period materially faster or slower than
similar mortgage loans held by the Seller generally secured by properties in the
same geographic area as the related Mortgaged Property;
(rr) No Defense to Insurance Coverage. The Seller has caused or will
cause to be performed any and all acts required to preserve the rights and
remedies of the Purchaser in any insurance policies applicable to the Mortgage
Loans including, without limitation, any necessary notifications of insurers,
assignments of policies or interests therein, and establishments of coinsured,
joint loss payee and mortgagee rights in favor of the Purchaser. No action has
been taken or failed to be taken, no event has occurred and no state of facts
exists or has existed on or prior to the related Closing Date (whether or not
known to the Seller on or prior to such date) which has resulted or will result
in an exclusion from, denial of, or defense to coverage under any primary
mortgage insurance (including, without limitation, any exclusions, denials or
defenses which would limit or reduce the availability of the timely payment of
the full amount of the loss otherwise due thereunder to the insured) whether
arising out of actions, representations, errors, omissions, negligence, or fraud
of the Seller, the related Mortgagor or any party involved in the application
for such coverage, including the appraisal, plans and specifications and other
exhibits or documents submitted therewith to the insurer under such insurance
policy, or for any other reason under such coverage, but not including the
failure of such insurer to pay by reason of such insurer's breach of such
insurance policy or such insurer's financial inability to pay;
(ss) Escrow Analysis. With respect to each Mortgage, the Seller has
within the last twelve (12) months (unless such Mortgage was originated within
such twelve-month period) analyzed the required Escrow Payments for each
Mortgage and adjusted the amount of such payments so that, assuming all required
payments are timely made, any deficiency will be eliminated on or before the
first anniversary of such analysis, or any overage will be refunded to the
Mortgagor, in accordance with RESPA and any other applicable law;
(tt) Prior Servicing. Each Mortgage Loan has been serviced in strict
compliance with Accepted Servicing Practices;
(uu) Credit Information. As to each consumer report (as defined in
the Fair Credit Reporting Act, Public Law 91-508) or other credit information
furnished by the Seller to the Purchaser, that Seller has full right and
authority and is not precluded by law or contract from furnishing such
information to the Purchaser and the Purchaser is not precluded by the terms of
the Mortgage Loan Documents from furnishing the same to any subsequent or
prospective purchaser of such Mortgage. The Seller has in its capacity as
servicer, for each Mortgage Loan, fully furnished, in accordance with the Fair
Credit Reporting Act and its implementing regulations, accurate and complete
information (e.g., favorable and unfavorable) on its borrower credit files to
Equifax, Experian and Trans Union Credit Information Company (three of the
credit repositories), on a monthly basis. The Servicer will transmit full-file
credit reporting data for each Mortgage Loan pursuant to Xxxxxx Xxx Guide
Announcement 95-19 and that for each Mortgage Loan, Servicer agrees it shall
report one of the following statuses each month as follows: new origination,
current, delinquent (30-, 60-, 90-days, etc.), foreclosed, or charged-off.
(vv) Leaseholds. If the Mortgage Loan is secured by a long-term
residential lease, (1) the lessor under the lease holds a fee simple interest in
the land; (2) the terms of such lease expressly permit the mortgaging of the
leasehold estate, the assignment of the lease without the lessor's consent and
the acquisition by the holder of the Mortgage of the rights of the lessee upon
foreclosure or assignment in lieu of foreclosure or provide the holder of the
Mortgage with substantially similar protections; (3) the terms of such lease do
not (a) allow the termination thereof upon the lessee's default without the
holder of the Mortgage being entitled to receive written notice of, and
opportunity to cure, such default, (b) allow the termination of the lease in the
event of damage or destruction as long as the Mortgage is in existence, (c)
prohibit the holder of the Mortgage from being insured (or receiving proceeds of
insurance) under the hazard insurance policy or policies relating to the
Mortgaged Property or (d) permit any increase in rent other than pre-established
increases set forth in the lease; (4) the original term of such lease is not
less than 15 years; (5) the term of such lease does not terminate earlier than
five years after the maturity date of the Mortgage Note; and (6) the Mortgaged
Property is located in a jurisdiction in which the use of leasehold estates in
transferring ownership in residential properties is a widely accepted practice;
(ww) Prepayment Penalty. The Mortgage Loan is subject to a
prepayment penalty as provided in the related Mortgage Note except as set forth
on the related Mortgage Loan Schedule. With respect to each Mortgage Loan that
has a prepayment penalty feature, each such prepayment penalty is enforceable
and will be enforced by the Seller for the benefit of the Purchaser, and each
prepayment penalty is permitted pursuant to federal, state and local law. Each
such prepayment penalty is in an amount not more than the maximum amount
permitted under applicable law and no such prepayment penalty may be imposed for
a term in excess of five (5) years. With respect to any Mortgage Loan that
contains a provision permitting imposition of a premium upon a prepayment prior
to maturity: (i) prior to the loan's origination, the Mortgagor agreed to such
premium in exchange for a monetary benefit, including but not limited to a rate
or fee reduction, (ii) prior to the loan's origination, the Mortgagor was
offered the option of obtaining a mortgage loan that did not require payment of
such a premium, (iii) the prepayment premium is disclosed to the Mortgagor in
the loan documents pursuant to applicable state, local and federal law, and (iv)
notwithstanding any state, local or federal law to the contrary, the Servicer
shall not impose such prepayment premium in any instance when the mortgage debt
is accelerated as the result of the Mortgagor's default in making the loan
payments;
(xx) Predatory Lending Regulations. No Mortgage Loan is a High Cost
Loan or Covered Loan, as applicable, and no Mortgage Loan originated on or after
October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending
Act. No Mortgage Loan is covered by the Home Ownership and Equity Protection Act
of 1994 and no Mortgage Loan is in violation of any comparable state or local
law. The Mortgaged Property is not located in a jurisdiction where a breach of
this representation with respect to the related Mortgage Loan may result in
additional assignee liability to the Purchaser, as determined by Purchaser in
its reasonable discretion. No predatory or deceptive lending practices,
including, without limitation, the extension of credit without regard to the
ability of the Mortgagor to repay and the extension of credit which has no
apparent benefit to the Mortgagor, were employed in the origination of the
Mortgage Loan;
(yy) Single-premium Credit Life Insurance Policy. In connection with
the origination of any Mortgage Loan, no proceeds from any Mortgage Loan were
used to finance or acquire a single-premium credit life insurance policy. No
Mortgagor was required to purchase any single-premium credit insurance policy
(e.g., life, disability, accident, unemployment, or health insurance product) or
debt cancellation agreement as a condition of obtaining the extension of credit.
No Mortgagor obtained a prepaid single-premium credit insurance policy (e.g.,
life, disability, accident, unemployment, mortgage, or health insurance) in
connection with the origination of the Mortgage Loan; no proceeds from any
Mortgage Loan were used to purchase single-premium credit insurance policies or
debt cancellation agreements as part of the origination of, or as a condition to
closing, such Mortgage Loan;
(zz) Tax Service Contract; Flood Certification Contract. Each
Mortgage Loan is covered by a paid in full, life of loan, tax service contract
and a paid in full, life of loan, flood certification contract and each of these
contracts is assignable to the Purchaser;
(aaa) Qualified Mortgage. The Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code;
(bbb) Regarding the Mortgagor. The Mortgagor is one or more natural
persons and/or trustees for an Illinois land trust or a trustee under a "living
trust" and such "living trust" is in compliance with Xxxxxx Xxx guidelines for
such trusts;
(ccc) Recordation. Each original Mortgage was recorded and, except
for those Mortgage Loans subject to the MERS identification system, all
subsequent assignments of the original Mortgage (other than the assignment to
the Purchaser) have been recorded in the appropriate jurisdictions wherein such
recordation is necessary to perfect the lien thereof as against creditors of the
Seller, or is in the process of being recorded;
(ddd) FICO Scores. Each Mortgagor has a non-zero FICO score. No
Mortgage Loan has a Mortgagor with a FICO score of less than 500; and
(eee) Compliance with Anti-Money Laundering Laws. The Seller has
complied with all applicable anti-money laundering laws and regulations,
including without limitation the USA Patriot Act of 2001 (collectively, the
"Anti-Money Laundering Laws"); the Seller has established an anti-money
laundering compliance program as required by the Anti-Money Laundering Laws, has
conducted the requisite due diligence in connection with the origination of each
Mortgage Loan for purposes of the Anti-Money Laundering Laws, including with
respect to the legitimacy of the applicable Mortgagor and the origin of the
assets used by the said Xxxxxxxxx to purchase the property in question, and
maintains, and will maintain, sufficient information to identify the applicable
Mortgagor for purposes of the Anti-Money Laundering Laws.
(fff) Litigation. The Mortgage Loan is not subject to any
outstanding litigation for fraud, origination, predatory lending, servicing or
closing practices.
(ggg) MERS Designations. With respect to each MERS Designated
Mortgage Loan, the Seller has designated the Custodian as the Investor and no
Person is listed as Interim Funder on the MERS(R) System;
(hhh) Reports. On or prior to the related Closing Date, the Seller
has provided the Custodian and the Purchaser with a MERS Report listing the
Custodian as the Investor with respect to each MERS Designated Mortgage Loan;
and
(iii) Origination Practices. No Mortgagor was encouraged or required
to select a Mortgage Loan product offered by the Mortgage Loan's originator
which is a higher cost product designed for less creditworthy borrowers, unless
at the time of the Mortgage Loan's origination, such Xxxxxxxxx did not qualify
taking into account credit history and debt-to-income ratios for a lower-cost
credit product then offered by the Mortgage Loan's originator or any affiliate
of the Mortgage Loan's originator. If, at the time of loan application, the
Mortgagor may have qualified for a lower-cost credit product then offered by any
mortgage lending affiliate of the Mortgage Loan's originator, the Mortgage
Loan's originator referred the Mortgagor's application to such affiliate for
underwriting consideration;
(jjj) Underwriting Methodology. The methodology used in underwriting
the extension of credit for each Mortgage Loan employs, in part, objective
mathematical principles which relate the Mortgagor's income, assets and
liabilities to the proposed payment and such underwriting methodology does not
rely on the extent of the Mortgagor's equity in the collateral as the principal
determining factor in approving such credit extension. Such underwriting
methodology confirmed that at the time of origination (application/approval) the
Mortgagor had a reasonable ability to make timely payments on the Mortgage Loan.
(kkk) Points and Fees. All points and fees related to each Mortgage
Loan were disclosed in writing to the Mortgagor in accordance with applicable
state and federal law and regulation.
(lll) Fees Charges. All fees and charges (including finance charges)
and whether or not financed, assessed, collected or to be collected in
connection with the origination and servicing of each Mortgage Loan has been
disclosed in writing to the Mortgagor in accordance with applicable state and
federal law and regulation; and
(mmm) Arbitration. With respect to any Mortgage Loan originated on
or after August 1, 2004, neither the related Mortgage nor the related Mortgage
Note requires the Mortgagor to submit to arbitration to resolve any dispute
arising out of or relating in any way to the Mortgage Loan transaction.
Subsection 9.03 Remedies for Breach of Representations and
Warranties.
It is understood and agreed that the representations and warranties
set forth in Subsections 9.01 and 9.02 shall survive the sale of the Mortgage
Loans to the Purchaser and shall inure to the benefit of the Purchaser, its
successors and assigns and the Successor Servicer, notwithstanding any
restrictive or qualified endorsement on any Mortgage Note or Assignment of
Mortgage or the examination or failure to examine any Mortgage File. Upon
discovery by either the Seller or the Purchaser of a breach of any of the
foregoing representations and warranties, the party discovering such breach
shall give prompt written notice to the other.
Within thirty (30) days of the earlier of either discovery by or
notice to the Seller of any breach of a representation or warranty which
materially and adversely affects the value of the Mortgage Loans or the interest
of the Purchaser therein (or which materially and adversely affects the value of
the applicable Mortgage Loan or the interest of the Purchaser therein in the
case of a representation and warranty relating to a particular Mortgage Loan),
the Seller shall use its best efforts promptly to cure such breach in all
material respects and, if such breach cannot be cured, the Seller shall, at the
Purchaser's option, repurchase such Mortgage Loan at the Repurchase Price,
together with all expenses incurred by the Purchaser as a result of such
repurchase. Notwithstanding the above sentence, within thirty (30) days of the
earlier of either discovery by, or notice to, the Seller of any breach of the
representations or warranties set forth in clauses (uu), (ww), (xx), (yy), (aaa)
or (mmm) of Subsection 9.02, the Seller shall repurchase such Mortgage Loan at
the Repurchase Price, together with all expenses incurred by the Purchaser as a
result of such repurchase. In the event that a breach shall involve any
representation or warranty set forth in Subsection 9.01, and such breach cannot
be cured within thirty (30) days of the earlier of either discovery by or notice
to the Seller of such breach, all of the Mortgage Loans shall, at the
Purchaser's option, be repurchased by the Seller at the Repurchase Price.
However, if the breach shall involve a representation or warranty set forth in
Subsection 9.02 (other than the representations and warranties set forth in
(uu), (ww), (xx), (yy), (aaa), or (mmm) of such Subsection) and the Seller
discovers or receives notice of any such breach within 120 days of the related
Closing Date, the Seller may, at the Purchaser's option and provided that the
Seller has a Qualified Substitute Mortgage Loan, rather than repurchase the
Mortgage Loan as provided above, remove such Mortgage Loan (a "Deleted Mortgage
Loan") and substitute in its place a Qualified Substitute Mortgage Loan or
Loans; provided that any such substitution shall be effected not later than 120
days after the related Closing Date. If the Seller has no Qualified Substitute
Mortgage Loan, it shall repurchase the deficient Mortgage Loan. Any repurchase
of a Mortgage Loan or Loans pursuant to the foregoing provisions of this
Subsection 9.03 shall be accomplished by direct remittance of the Repurchase
Price to the Purchaser or its designee in accordance with the Purchaser's
instructions.
At the time of repurchase or substitution, the Purchaser and the
Seller shall arrange for the reassignment of the Deleted Mortgage Loan to the
Seller and the delivery to the Seller of any documents held by the Custodian
relating to the Deleted Mortgage Loan. In the event of a repurchase or
substitution, the Seller shall, simultaneously with such reassignment, give
written notice to the Purchaser that such repurchase or substitution has taken
place, amend the related Mortgage Loan Schedule to reflect the withdrawal of the
Deleted Mortgage Loan from this Agreement, and, in the case of substitution,
identify a Qualified Substitute Mortgage Loan and amend the related Mortgage
Loan Schedule to reflect the addition of such Qualified Substitute Mortgage Loan
to this Agreement. In connection with any such substitution, the Seller shall be
deemed to have made as to such Qualified Substitute Mortgage Loan the
representations and warranties set forth in this Agreement except that all such
representations and warranties set forth in this Agreement shall be deemed made
as of the date of such substitution. The Seller shall effect such substitution
by delivering to the Custodian or to such other party as the Purchaser may
designate in writing for such Qualified Substitute Mortgage Loan the documents
required by Subsection 6.03, with the Mortgage Note endorsed as required by
Subsection 6.03. No substitution will be made in any calendar month after the
Determination Date for such month. The Seller shall remit directly to the
Purchaser, or its designee in accordance with the Purchaser's instructions the
Monthly Payment on such Qualified Substitute Mortgage Loan or Loans in the month
following the date of such substitution. Monthly Payments due with respect to
Qualified Substitute Mortgage Loans in the month of substitution shall be
retained by the Seller. For the month of substitution, distributions to the
Purchaser shall include the Monthly Payment due on any Deleted Mortgage Loan in
the month of substitution, and the Seller shall thereafter be entitled to retain
all amounts subsequently received by the Seller in respect of such Deleted
Mortgage Loan.
For any month in which the Seller substitutes a Qualified Substitute
Mortgage Loan for a Deleted Mortgage Loan, the Seller shall determine the amount
(if any) by which the aggregate principal balance of all Qualified Substitute
Mortgage Loans as of the date of substitution is less than the aggregate Stated
Principal Balance of all Deleted Mortgage Loans (after application of scheduled
principal payments due in the month of substitution). The amount of such
shortfall shall be distributed by the Seller directly to the Purchaser or its
designee in accordance with the Purchaser's instructions within two (2) Business
Days of such substitution. Accordingly, on the date of such substitution, the
Seller will remit to the Servicer from its own funds for deposit into the
Custodial Account an amount equal to the amount of such shortfall plus one
month's interest thereon at the Mortgage Loan remittance rate.
In addition to such repurchase or substitution obligation, the
Seller shall indemnify the Purchaser, its successors and assigns and the
Successor Servicer and hold them harmless against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments, and other costs and expenses resulting from any claim, demand,
defense or assertion based on or grounded upon, or resulting from, a breach of
the Seller representations and warranties contained in this Agreement or any
Reconstitution Agreement. It is understood and agreed that the obligations of
the Seller set forth in this Subsection 9.03 to cure, substitute for or
repurchase a defective Mortgage Loan and to indemnify the Purchaser, its
successors and assigns and the Successor Servicer as provided in this Subsection
9.03 constitute the sole remedies respecting a breach of the foregoing
representations and warranties. For purposes of this paragraph, "Purchaser"
shall mean the Person then acting as the Purchaser under this Agreement and any
and all Persons who previously were "Purchasers" under this Agreement and
"Successor Servicer" shall mean the Person then acting as the Successor Servicer
under this Agreement and any and all Persons who previously were "Successor
Servicers" under this Agreement.
Any cause of action against the Seller relating to or arising out of
the breach of any representations and warranties made in Subsections 9.01 and
9.02 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by
the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by
the Seller to cure such breach or repurchase such Mortgage Loan as specified
above, and (iii) demand upon the Seller by the Purchaser for compliance with
this Agreement.
Subsection 9.04 [Reserved].
Subsection 9.05 Purchaser's Right to Review.
Prior to the related Closing Date, the Purchaser shall have the
right to perform on-site due diligence at the premises of the Seller with
respect to the Mortgage Loans. The Seller will provide information and otherwise
cooperate with the due diligence reviews of the Purchaser, its co-investor's,
its financial partner's, and the rating agencies. The Seller shall make the
legal files and the credit files, together with any payment histories,
collection histories, bankruptcy histories, broker's price opinions, to the
extent available, and any other information with respect to the Mortgage Loans
requested by the Purchaser, available at the Seller's offices for review by
Purchaser or its agents during normal business hours before the related Closing
Date. The Purchaser shall have the right to order additional broker's price
opinions in its sole discretion at the Purchaser's expense.
The Purchaser shall have the right to reject any Mortgage Loan (a)
for which the documentation listed in Subsection 6.03 is missing or defective in
whole or in part, (b) for which the related broker's price opinion is below the
appraisal provided in connection with the origination of the related Mortgage
Loan, (c) for which the loan-to-value ratio calculated based upon the broker's
price opinion is greater than 100%, (d) which does not conform to the Seller's
underwriting guidelines, (e) which does not conform to the terms of the related
Purchase Price and Terms Letter or is in breach of the representations and
warranties set forth in this Purchase Agreement, (f) that is not securitizable
in the reasonable opinion of the Purchaser, or (g) which does not conform to the
terms of any applicable federal, state, or local law or regulation. The
Purchaser shall use its best efforts to notify the Seller of any such rejected
Mortgage Loan immediately upon discovery.
The fact that the Purchaser has conducted or failed to conduct any
partial or complete examination of the files shall not affect the Purchaser's
(or any of its successor's) rights to demand repurchase or other relief for
breach of Mortgage Loan representations and warranties, missing or defective
documents or as otherwise provided in this Agreement.
SECTION 10. Closing.
The closing for the purchase and sale of the Mortgage Loans in each
Mortgage Loan Package shall take place on the related Closing Date. At the
Purchaser's option, the Closing shall be either: by telephone, confirmed by
letter or wire as the parties shall agree, or conducted in person, at such place
as the parties shall agree.
The closing for the Mortgage Loans to be purchased on each Closing
Date shall be subject to each of the following conditions:
(A) at least two (2) Business Days prior to the related
Closing Date or such later date on which the Purchaser has
identified to the Seller the final list of Mortgage Loans the
Purchaser desires to purchase, the Seller shall deliver to the
Purchaser via electronic medium a Mortgage Loan Schedule acceptable
to the Purchaser;
(B) all of the representations and warranties of the Seller
under this Agreement shall be true and correct as of the related
Closing Date and no event shall have occurred which, with notice or
the passage of time, would constitute a default under this
Agreement;
(C) the Purchaser shall have received, or the Purchaser's
attorneys shall have received in escrow, all Closing Documents as
specified in Section 11 of this Agreement, in such forms as are
agreed upon and reasonably acceptable to the Purchaser, duly
executed by all signatories other than the Purchaser as required
pursuant to the terms hereof;
(D) the Seller shall have delivered and released to the
Custodian all documents required hereunder; and
(E) all other terms and conditions of this Agreement and the
related Purchase Price and Terms Agreement shall have been complied
with.
Subject to the foregoing conditions, the Purchaser shall pay to the
Seller on the related Closing Date the Purchase Price, plus accrued interest
pursuant to Section 4 of this Agreement, by wire transfer of immediately
available funds to the account(s) designated by the Seller.
SECTION 11. Closing Documents.
(a) The Closing Documents for the Mortgage Loans to be purchased on
the initial Closing Date shall consist of fully executed originals of the
following documents:
1. this Agreement;
2. the Interim Servicing Agreement, any account certifications
and all other documents required thereunder;
3. an Officer's Certificate, in the form of Exhibit C hereto
with respect to the Seller, including all attachments thereto;
4. an Opinion of Counsel of the Seller (who may be an employee
of the Seller), in the form of Exhibit D hereto ("Opinion of Counsel
of the Seller");
5. a Security Release Certification, substantially in the form
of Exhibit E or F, as applicable, hereto executed by any person, as
requested by the Purchaser, if any of the Mortgage Loans have at any
time been subject to any security interest, pledge or hypothecation
for the benefit of such person;
6. the Underwriting Guidelines to be attached hereto as
Exhibit J;
7. a certificate or other evidence of merger or change of
name, signed or stamped by the applicable regulatory authority, if
any of the Mortgage Loans were acquired by the Seller by merger or
acquired or originated by the Seller while conducting business under
a name other than its present name, if applicable.
(b) The Closing Documents to be delivered on each Closing Date shall
consist of fully executed originals of the following documents:
1. an Assignment and Conveyance in the form of Exhibit M
hereto, including all exhibits;
2. a Purchase Price and Terms Agreement;
3. the related Mortgage Loan Schedule, with one copy to be
attached to the related Assignment and Conveyance;
4. each of the documents required to be delivered by the
Seller pursuant to Subsection 6.03 hereof;
5. the initial certification of the Custodian with respect to
the related Mortgage Loan Package;
6. a Security Release Certification, substantially in the form
of Exhibit E or F, as applicable, hereto executed by any person, as
requested by the Purchaser, if any of the Mortgage Loans have at any
time been subject to any security interest, pledge or hypothecation
for the benefit of such person;
7. a certificate or other evidence of merger or change of
name, signed or stamped by the applicable regulatory authority, if
any of the Mortgage Loans were acquired by the Seller by merger or
acquired or originated by the Seller while conducting business under
a name other than its present name, if applicable; and
8. if requested by the Purchaser in connection with a material
change in Seller's financial condition or corporate structure, an
updated Officer's Certificate, in the form of Exhibit C hereto,
including all attachments thereto and an updated Opinion of Counsel
of the Seller, in the form of Exhibit D hereto.
The Seller shall bear the risk of loss of the closing documents
until such time as they are received by the Purchaser or its attorneys.
SECTION 12. Costs.
The Purchaser shall pay its due diligence fees and the fees and
expenses of its counsel. All servicing fees incurred prior to the related
Closing Date, and all costs and expenses incurred in connection with the
transfer of the Mortgage Loans, fees to transfer files and prepare
assignments/endorsements, all initial recording fees, if any, for the
assignments of mortgage for all Mortgage Loans not recorded in the name of MERS,
all fees, if any, for transferring record ownership on the MERS(R) System of
Mortgage Loans recorded in the name of MERS, custodial fees, including the costs
associated with clearing exceptions, (including costs to record intervening
assignments and any existing assumption and modification agreements), together
with the fees and expenses of Seller's counsel, shall be payable by the Seller.
SECTION 13. Cooperation of Seller with a Reconstitution.
The Seller and the Purchaser agree that with respect to some or all
of the Mortgage Loans, after the related Closing Date, on one or more dates
(each a "Reconstitution Date") at the Purchaser's sole option, the Purchaser may
effect a sale (each a "Reconstitution") of some or all of the Mortgage Loans
then subject to this Agreement, without recourse, to:
(i) Xxxxxx Xxx under its Cash Purchase Program or MBS Program
(Special Servicing Option) (each a "Xxxxxx Xxx Transfer"); or
(ii) Freddie Mac (the "Freddie Mac Transfer"); or
(iii) one or more third party purchasers in one or more Whole Loan
Transfers; or
(iv) one or more trusts or other entities to be formed as part of
one or more Securitization Transactions.
The Seller agrees to execute in connection with any Agency Transfer,
any and all pool purchase contracts, and/or agreements reasonably acceptable to
the Seller among the Purchaser, the Seller, Xxxxxx Xxx or Freddie Mac (as the
case may be) and any servicer in connection with a Whole Loan Transfer, a
seller's warranties and servicing agreement or a participation and servicing
agreement in form and substance reasonably acceptable to the Seller, and in
connection with a Securitization Transaction, a pooling and servicing agreement
in form and substance reasonably acceptable to the Seller (collectively the
agreements referred to herein are designated, the "Reconstitution Agreements").
With respect to the first three (3) Whole Loan Transfers or
Securitization Transactions entered into by the Purchaser with respect to each
Mortgage Loan Package, the Seller agrees (1) to cooperate fully with the
Purchaser and any prospective purchaser with respect to all reasonable requests
and due diligence procedures; (2) to execute, deliver and perform all
Reconstitution Agreements reasonably required by the Purchaser; and deliver an
opinion of counsel in form and substance satisfactory to the Purchaser if
requested by the Purchaser; (3) (a) to restate the representations and
warranties set forth in this Agreement (i) with respect to Non-Servicing Related
Representations and Warranties, as of the related Closing Date and (ii) with
respect to Servicing-Related Representations and Warranties, as of the related
Transfer Date, or (b) make the representations and warranties set forth in the
related selling/servicing guide of the master servicer or issuer, as the case
may be, or such representations and warranties as may be required by any Rating
Agency or prospective purchaser of the related securities or such Mortgage
Loans, in connection with such Reconstitution. The Seller shall use its
reasonable best efforts to provide to such master servicer or issuer, as the
case may be, and any other participants in such Reconstitution: (i) any and all
information and appropriate verification of information which may be reasonably
available to the Seller or its affiliates, whether through letters of its
auditors and counsel or otherwise, as the Purchaser or any such other
participant shall request; (ii) such additional representations, warranties,
covenants, opinions of counsel, letters from auditors, and certificates of
public officials or officers of the Seller as are reasonably believed necessary
by the Purchaser or any such other participant; and (iii) to execute, deliver
and satisfy all conditions set forth in an indemnity agreement substantially in
the form of Exhibit N hereto. The Seller shall indemnify the Purchaser, each
Affiliate designated by the Purchaser, each Person who controls the Purchaser or
such Affiliate and the Successor Servicer and hold each of them harmless from
and against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments, and any other costs, fees and
expenses that each of them may sustain in any way related to any information
that contains an untrue statement of material fact or omits to state a material
fact required to be stated therein or necessary to make the information and
statements therein not misleading provided by or on behalf of the Seller
regarding the Seller (or if the Seller is not the originator, the originator of
the Mortgage Loans), the Seller's servicing practices or performance, the
Mortgage Loans or the Underwriting Guidelines set forth in any offering document
prepared in connection with any Reconstitution; provided that Purchaser requests
such information from Seller. For purposes of the previous sentence, "Purchaser"
shall mean the Person then acting as the Purchaser under this Agreement and any
and all Persons who previously were "Purchasers" under this Agreement and
"Successor Servicer" shall mean the Person then acting as the Successor Servicer
under this Agreement and any and all Persons who previously were "Successor
Servicers" under this Agreement. Moreover, the Seller agrees to cooperate with
all reasonable requests made by the Purchaser to effect such Reconstitution
Agreements.
In the event the Purchaser has elected to have the Seller hold
record title to the Mortgages, prior to the Reconstitution Date, the Seller
shall prepare an assignment of mortgage in blank or to the prospective purchaser
or trustee, as applicable, from the Seller acceptable to the prospective
purchaser or trustee, as applicable, for each Mortgage Loan that is part of the
Reconstitution and shall pay all preparation and recording costs associated
therewith. In connection with the Reconstitution, the Seller shall execute each
assignment of mortgage, track such Assignments of Mortgage to ensure they have
been recorded and deliver them as required by the prospective purchaser or
trustee, as applicable, upon the Seller's receipt thereof. Additionally, the
Seller shall prepare and execute, at the direction of the Purchaser, any note
endorsement in connection with any and all seller/servicer agreements.
All Mortgage Loans not sold or transferred pursuant to a
Reconstitution shall remain subject to this Agreement and with respect thereto
this Agreement shall remain in full force and effect.
SECTION 14. The Seller.
Subsection 14.01 Additional Indemnification by the Seller; Third
Party Claims.
The Seller shall indemnify the Purchaser and hold it harmless
against any and all claims, losses, damages, penalties, fines, forfeitures,
legal fees (including (without limitation) legal fees incurred in connection
with the enforcement of the Seller's indemnification obligation under this
Subsection 14.01) and related costs, judgments, and any other costs, fees and
expenses that the Purchaser or the Successor Servicer may sustain in any way
related to (a) any breach of any of Seller's representations, warranties or
covenants set forth in this Agreement, (b) the failure of the Seller to perform
its duties under this Agreement or (c) the failure of the Seller to service the
Mortgage Loans in strict compliance with the terms of the Interim Servicing
Agreement or any Reconstitution Agreement entered into pursuant to Section 13.
The Seller immediately shall notify the Purchaser if a claim is made by a third
party with respect to this Agreement or any Reconstitution Agreement or the
Mortgage Loans, assume (with the prior written consent of the Purchaser) the
defense of any such claim and pay all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and satisfy any judgment or
decree which may be entered against it or the Purchaser in respect of such
claim. The Purchaser promptly shall reimburse the Seller for all amounts
advanced by it pursuant to the preceding sentence, except when the claim is in
any way related to (a) a breach of any of Seller's representations, warranties
or covenants set forth in this Agreement, (b) the failure of the Seller to
materially perform its duties under this Agreement or (c) the failure of the
Seller to service the Mortgage Loans in compliance with the terms of the Interim
Servicing Agreement or any Reconstitution Agreement entered into pursuant to
Section 13.
Subsection 14.02 Merger or Consolidation of the Seller.
The Seller will keep in full effect its existence, rights and
franchises as a corporation under the laws of the state of its formation except
as permitted herein, and will obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its duties under this Agreement.
Any Person into which the Seller may be merged or consolidated, or
any entity resulting from any merger, conversion or consolidation to which the
Seller shall be a party, or any Person succeeding to the business of the Seller,
shall be the successor of the Seller hereunder, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided, however, that the
successor or surviving Person shall have a net worth of at least $17,500,000.
SECTION 15. Financial Statements.
The Seller understands that in connection with the Purchaser's
marketing of the Mortgage Loans, the Purchaser shall make available to
prospective purchasers audited financial statements of the Seller for the most
recently completed three fiscal years respecting which such statements are
available, as well as a Consolidated Statement of Condition of the Seller at the
end of the last two fiscal years covered by such Consolidated Statement of
Operations. The Seller shall also make available any comparable interim
statements to the extent any such statements have been prepared by the Seller
(and are available upon request to members or stockholders of the Seller or the
public at large). The Seller, if it has not already done so, agrees to furnish
promptly to the Purchaser copies of the statements specified above. The Seller
shall also make available information on its servicing performance with respect
to loans serviced for others, including delinquency ratios.
The Seller also agrees to allow reasonable access to a knowledgeable
financial or accounting officer for the purpose of answering questions asked by
any prospective purchaser regarding recent developments affecting the Seller or
the financial statements of the Seller.
SECTION 16. Mandatory Delivery; Grant of Security Interest.
The sale and delivery on the related Closing Date of the Mortgage
Loans is mandatory from and after the date of the execution of the related
Purchase Price and Terms Agreement, it being specifically understood and agreed
that each Mortgage Loan is unique and identifiable on the date hereof and that
an award of money damages would be insufficient to compensate the Purchaser for
the losses and damages incurred by the Purchaser (including damages to
prospective purchasers of the Mortgage Loans) in the event of the Seller's
failure to deliver (i) each of the related Mortgage Loans or (ii) one or more
Qualified Substitute Mortgage Loans or (iii) one or more Mortgage Loans
otherwise acceptable to the Purchaser on or before the related Closing Date. The
Seller hereby grants to the Purchaser a lien on and a continuing security
interest in each Mortgage Loan and each document and instrument evidencing each
such Mortgage Loan to secure the performance by the Seller of its obligations
under the related Purchase Price and Terms Agreement, and the Seller agrees that
it shall hold such Mortgage Loans in custody for the Purchaser subject to the
Purchaser's (i) right to reject any Mortgage Loan (or Qualified Substitute
Mortgage Loan) under the terms of this Agreement and to require another Mortgage
Loan (or Qualified Substitute Mortgage Loan) to be substituted therefor, and
(ii) obligation to pay the Purchase Price for the Mortgage Loans. All rights and
remedies of the Purchaser under this Agreement are distinct from, and cumulative
with, any other rights or remedies under this Agreement or afforded by law or
equity and all such rights and remedies may be exercised concurrently,
independently or successively.
SECTION 17. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed, by registered or
certified mail, return receipt requested, or, if by other means, when received
by the other party at the address as follows:
(i) if to the Seller:
Novelle Financial Services, Inc.
0000 Xxxx Xxxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
Fax: (000) 000-0000
(ii) if to the Purchaser:
Xxxxxxx Xxxxx Mortgage Company
000 0xx Xxx. South, Suite 000X
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxxxxx
or such other address as may hereafter be furnished to the other party by like
notice. Any such demand, notice or communication hereunder shall be deemed to
have been received on the date delivered to or received at the premises of the
addressee (as evidenced, in the case of registered or certified mail, by the
date noted on the return receipt).
SECTION 18. Severability Clause.
Any part, provision, representation or warranty of this Agreement
which is prohibited or unenforceable or is held to be void or unenforceable in
any jurisdiction shall be ineffective, as to such jurisdiction, to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof. If the invalidity of any
part, provision, representation or warranty of this Agreement shall deprive any
party of the economic benefit intended to be conferred by this Agreement, the
parties shall negotiate, in good-faith, to develop a structure the economic
effect of which is nearly as possible the same as the economic effect of this
Agreement without regard to such invalidity.
SECTION 19. Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
SECTION 20. Governing Law.
This Agreement shall be deemed in effect when a fully executed
counterpart thereof is received by the Purchaser in the State of New York and
shall be deemed to have been made in the State of New York. The Agreement shall
be construed in accordance with the laws of the State of New York and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with the substantive laws of the State of New York (without regard to
conflicts of laws principles), except to the extent preempted by federal law.
SECTION 21. Intention of the Parties.
It is the intention of the parties that the Purchaser is purchasing,
and the Seller is selling the Mortgage Loans and not a debt instrument of the
Seller or another security. Accordingly, the parties hereto each intend to treat
the transaction for federal income tax purposes as a sale by the Seller, and a
purchase by the Purchaser, of the Mortgage Loans. Moreover, the arrangement
under which the Mortgage Loans are held shall be consistent with classification
of such arrangement as a grantor trust in the event it is not found to represent
direct ownership of the Mortgage Loans. The Purchaser shall have the right to
review the Mortgage Loans and the related Mortgage Loan Files to determine the
characteristics of the Mortgage Loans which shall affect the Federal income tax
consequences of owning the Mortgage Loans and the Seller shall cooperate with
all reasonable requests made by the Purchaser in the course of such review.
SECTION 22. Successors and Assigns; Assignment of Purchase
Agreement.
This Agreement shall bind and inure to the benefit of and be
enforceable by the Seller and the Purchaser and the respective permitted
successors and assigns of the Seller and the successors and assigns of the
Purchaser. This Agreement shall not be assigned, pledged or hypothecated by the
Seller to a third party without the prior written consent of the Purchaser,
which consent may be withheld by the Purchaser in its sole discretion. This
Agreement may be assigned, pledged or hypothecated by the Purchaser in whole or
in part, and with respect to one or more of the Mortgage Loans, without the
consent of the Seller. If the Purchaser assigns any or all of its rights as
Purchaser hereunder, the assignee of the Purchaser will become the "Purchaser"
hereunder to the extent of such assignment. Any such assignment by the Purchaser
shall be accompanied by the delivery and execution of an Assignment and
Assumption Agreement (the "Assignment and Assumption Agreement") in the form
attached hereto as Exhibit G.
SECTION 23. Waivers.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced.
SECTION 24. Exhibits.
The exhibits to this Agreement are hereby incorporated and made a
part hereof and are an integral part of this Agreement.
SECTION 25. General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Agreement have the meanings assigned
to them in this Agreement and include the plural as well as the singular, and
the use of any gender herein shall be deemed to include the other gender;
(b) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
(c) references herein to "Articles," "Sections," "Subsections,"
"Paragraphs," and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other subdivisions of
this Agreement;
(d) reference to a Subsection without further reference to a Section
is a reference to such Subsection as contained in the same Section in which the
reference appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(e) the words "herein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision; and
(f) the term "include" or "including" shall mean without limitation
by reason of enumeration.
SECTION 26. Reproduction of Documents.
This Agreement and all documents relating thereto, including,
without limitation, (a) consents, waivers and modifications which may hereafter
be executed, (b) documents received by any party at the closing, and (c)
financial statements, certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties agree
that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the original
is in existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
SECTION 27. Further Agreements.
The Seller and the Purchaser each agree to execute and deliver to
the other such reasonable and appropriate additional documents, instruments or
agreements as may be necessary or appropriate to effectuate the purposes of this
Agreement.
SECTION 28. Recordation of Assignments of Mortgage.
To the extent permitted by applicable law, for Mortgage Loans which
are not registered with MERS, each of the Assignments of Mortgage is subject to
recordation in all appropriate public offices for real property records in all
the counties or their comparable jurisdictions in which any or all of the
Mortgaged Properties are situated, and in any other appropriate public recording
office or elsewhere, such recordation to be effected at the Seller's expense in
the event recordation is either necessary under applicable law or requested by
the Purchaser (which request may be made by the Purchaser at any time following
the related Closing Date) at its sole option.
SECTION 29. No Solicitation.
From and after the related Closing Date, the Seller agrees that it
will not take any action or permit or cause any action to be taken by any of its
agents or affiliates, or by any independent contractors on the Seller's behalf,
to personally, by telephone or mail, solicit the Mortgagor under any Mortgage
Loan for any purpose whatsoever, including to refinance a Mortgage Loan, in
whole or in part, without the prior written consent of the Purchaser. It is
understood and agreed that all rights and benefits relating to the solicitation
of any Mortgagors and the attendant rights, title and interest in and to the
list of such Mortgagors and data relating to their Mortgages (including
insurance renewal dates) shall be transferred to the Purchaser pursuant hereto
on the related Closing Date and the Seller shall take no action to undermine
these rights and benefits. Notwithstanding the foregoing, it is understood and
agreed that promotions undertaken by the Seller or any affiliate of the Seller
which are directed to the general public at large, including, without
limitation, mass mailing, internet and e-mail solicitations, based in all
instances, on commercially acquired mailing lists (which may not be targeted at
the Mortgagors) and newspaper, radio and television advertisements shall not
constitute solicitation under this Section 29.
SECTION 30. Waiver of Trial by Jury.
THE SELLER AND THE PURCHASER EACH KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 31. Submission to Jurisdiction; Waivers.
The Seller hereby irrevocably and unconditionally:
(A) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT, OR FOR RECOGNITION AND
ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE
GENERAL JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, THE
FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT
IN SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH
ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR
PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO
PLEAD OR CLAIM THE SAME;
(C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR
PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED
OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL),
POSTAGE PREPAID, TO ITS ADDRESS SET FORTH HEREIN OR AT SUCH OTHER
ADDRESS OF WHICH THE PURCHASER SHALL HAVE BEEN NOTIFIED; AND
(D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO
EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR
SHALL LIMIT THE RIGHT TO SUE IN ANY OTHER JURISDICTION.
SECTION 32. Confidential Information.
The Seller and Purchaser understand and agree that this Agreement,
any other agreements executed in connection with the sale contemplated
hereunder, any agreements executed in connection with any Reconstitution, and
any offering circulars or other disclosure documents produced in connection with
any Reconstitution are confidential and proprietary to the Purchaser or Seller,
and the Seller and Purchaser agree to hold such documents confidential and not
to divulge such documents to anyone except (a) to the extent required by law or
judicial order or to enforce its rights or remedies under this Agreement, (b) to
the extent such information enters into the public domain other than through the
wrongful act of the Seller or the Purchaser, as the case may be, (c) as is
necessary in working with legal counsel, rating agencies, auditors, agents,
taxing authorities or other governmental agencies or (d) the federal income tax
treatment of the transactions hereunder, any fact relevant to understanding the
federal tax treatment of the transactions hereunder, and all materials of any
kind (including opinions or other tax analyses) relating to such federal income
tax treatment; provided that the Seller may not disclose the name of or
identifying information with respect to Purchaser or any pricing terms or other
nonpublic business or financial information that is unrelated to the purported
or claimed federal income tax treatment of the transactions hereunder and is not
relevant to understanding the purported or claimed federal income tax treatment
of the transactions hereunder. Moreover, the Seller understands and agrees that
this Agreement, any other agreements executed in connection with the sale
contemplated hereunder, any agreements executed in connection with the
securitization of the Mortgage Loans, and any offering circulars or other
disclosure documents produced in connection with such securitization are
confidential and proprietary to the Purchaser, and the Seller agrees to hold
such documents confidential and not to divulge such documents to anyone except
(a) to the extent required by law or judicial order or to enforce its rights or
remedies under this Agreement, (b) to the extent such information enters into
the public domain other than through the wrongful act of the Seller, or (c) as
is necessary in working with legal counsel, auditors, agents, rating agencies,
taxing authorities or other governmental agencies. The rights and obligations
set forth in this paragraph shall survive the Closing Date and shall not merge
into the closing documents but shall be independently enforceable by the parties
hereto.
SECTION 33. Compliance with Regulation AB.
Subsection 33.01 Intent of the Parties; Reasonableness.
The Purchaser and the Seller acknowledge and agree that the purpose
of Section 33 of this Agreement is to facilitate compliance by the Purchaser and
any Depositor with the provisions of Regulation AB and related rules and
regulations of the Commission. Although Regulation AB is applicable by its terms
only to offerings of asset-backed securities that are registered under the
Securities Act, the Company acknowledges that investors in privately offered
securities may require that the Purchaser or any Depositor provide comparable
disclosure in unregistered offerings. References in this Agreement to compliance
with Regulation AB include provision of comparable disclosure in private
offerings. Neither the Purchaser nor any Depositor shall 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
thereunder (or the provision in a private offering of disclosure comparable to
that required under the Securities Act). The Seller 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 or
consensus among participants in the asset-backed securities markets, and agrees
to comply with requests made by the Purchaser or any Depositor in good faith for
delivery of information under these provisions on the basis of evolving
interpretations of Regulation AB. In connection with any Securitization
Transaction, the Seller shall cooperate with the Purchaser to deliver to the
Purchaser (including any of its assignees or designees) and any Depositor, any
and all statements, reports, certifications, records and any other information
necessary in the good faith determination of the Purchaser or any Depositor to
permit the Purchaser or such Depositor to comply with the provisions of
Regulation AB, together with such disclosures relating to the Seller, any
Third-Party Originator and the Mortgage Loans, or the servicing of the Mortgage
Loans, reasonably believed by the Purchaser or any Depositor to be necessary in
order to effect such compliance.
The Purchaser (including any of its assignees or designees) shall
cooperate with the Seller by providing timely notice of requests for information
under these provisions and by reasonably limiting such requests to information
required, in the Purchaser's reasonable judgment, to comply with Regulation AB.
Subsection 33.02 Additional Representations and Warranties of the
Seller.
(a) The Seller shall be deemed to represent to the Purchaser and to
any Depositor, as of the date on which information is first provided to the
Purchaser or any Depositor under Subsection 33.03 that, except as disclosed in
writing to the Purchaser or such Depositor prior to such date: (i) there are no
material legal or governmental proceedings pending (or known to be contemplated
by governmental authorities) against the Seller or any Third-Party Originator;
and (ii) there are no affiliations, relationships or transactions relating to
the Seller or any Third-Party Originator with respect to any Securitization
Transaction and any party thereto identified by the related Depositor of a type
described in Item 1119 of Regulation AB.
(b) If so requested by the Purchaser or any Depositor on any date
following the date on which information is first provided to the Purchaser or
any Depositor under Subsection 33.03, the Seller shall, within five (5) 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
request, provide reasonably adequate disclosure of the pertinent facts, in
writing, to the requesting party.
Subsection 33.03 Information To Be Provided by the Seller.
In connection with any Securitization Transaction the Seller shall
(i) within five (5) Business Days following request by the Purchaser or any
Depositor, provide to the Purchaser and such Depositor (or, as applicable, cause
each Third-Party Originator to provide), in writing and in form and substance
reasonably satisfactory to the Purchaser and such Depositor, the information and
materials specified in paragraphs (a) and (b) of this Subsection, and (ii) as
promptly as practicable following notice to or discovery by the Seller, provide
to the Purchaser and any Depositor (in writing and in form and substance
reasonably satisfactory to the Purchaser and such Depositor) the information
specified in paragraph (d) of this Subsection.
(a) If so requested by the Purchaser or any Depositor, the Seller
shall provide such information regarding (i) the Seller, as originator of the
Mortgage Loans (including as an acquirer of Mortgage Loans from a Qualified
Correspondent), or (ii) each Third-Party Originator, as is requested for the
purpose of compliance with Items 1103(a)(1), 1105, 1110, 1117 and 1119 of
Regulation AB. Such information shall include, at a minimum:
(A) the originator's form of organization;
(B) a description of the originator's origination program and
how long the originator has been engaged in originating residential
mortgage loans, which description shall include a discussion of the
originator's experience in originating mortgage loans of a similar
type as the Mortgage Loans; information regarding the size and
composition of the originator's origination portfolio; and
information that may be material, in the good faith judgment of the
Purchaser or any Depositor, to an analysis of the performance of the
Mortgage Loans, such as the originator's credit-granting or
underwriting criteria for mortgage loans of similar type(s) as the
Mortgage Loans and such other information as the Purchaser or any
Depositor may reasonably request for the purpose of compliance with
Item 1110(b)(2) of Regulation AB; provided that for the avoidance of
doubt, such information shall not include the static pool
information required by Item 1105 of Regulation AB;
(C) a description of any material legal or governmental
proceedings pending (or known to be contemplated by governmental
authorities) against the Seller and each Third-Party Originator; and
(D) a description of any affiliation or relationship between
the Seller, each Third-Party Originator and any of the following
parties to a Securitization Transaction, as such parties are
identified to the Seller by the Purchaser or any Depositor in
writing in advance of such Securitization Transaction:
1. the sponsor;
2. the depositor;
3. the issuing entity;
4. any servicer;
5. any trustee;
6. any originator;
7. any significant obligor;
8. any enhancement or support provider; and
9. any other material transaction party
provided, that affiliations and relationships with respect to
Third-Party Originators are those affiliations and relationships
known by the Seller after reasonable investigation.
(b) If so requested by the Purchaser or any Depositor, the Seller
shall provide (or, as applicable, cause each Third-Party Originator to provide)
Static Pool Information with respect to the mortgage loans (of a similar type as
the Mortgage Loans, as reasonably identified by the Purchaser as provided below)
originated by (i) the Seller, if the Seller is an originator of Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
and/or (ii) each Third-Party Originator. Such Static Pool Information shall be
prepared by the Seller (or Third-Party Originator) on the basis of its
reasonable, good faith interpretation of the requirements of Item 1105(a)(1)-(3)
of Regulation AB, subject to the unavailability of such information as
contemplated by Item 1105(f). To the extent that there is reasonably available
to the Seller (or Third-Party Originator) Static Pool Information with respect
to more than one mortgage loan type, the Purchaser or any Depositor shall be
entitled to specify whether some or all of such information shall be provided
pursuant to this paragraph. The content and presentation of such Static Pool
Information may be in the form customarily provided by the Seller, and need not
be customized for the Purchaser or any Depositor. Such Static Pool Information
for each vintage origination year or prior securitized pool, as applicable,
shall be presented in increments no less frequently than quarterly over the life
of the mortgage loans included in the vintage origination year or prior
securitized pool. The most recent periodic increment must be as of a date no
later than 135 days prior to the date of the prospectus or other offering
document in which the Static Pool Information is to be included or incorporated
by reference. The Static Pool Information shall be provided in an electronic
format that provides a permanent record of the information provided, such as a
portable document format (pdf) file, or other such electronic format as
customarily provided by Seller or if Seller does not customarily provide such
information as reasonably required by the Purchaser or the Depositor, as
applicable.
Promptly following notice or discovery of a material error in Static
Pool Information provided pursuant to the immediately preceding paragraph
(including an omission to include therein information required to be provided
pursuant to such paragraph), the Seller shall provide corrected Static Pool
Information to the Purchaser or any Depositor, as applicable, in the same format
in which Static Pool Information was previously provided to such party by the
Seller.
If so requested by the Purchaser or any Depositor, the Seller shall
provide (or, as applicable, cause each Third-Party Originator to provide), at
the expense of the requesting party (to the extent of any additional incremental
expense associated with delivery pursuant to this Agreement), such agreed-upon
procedures letters of certified public accountants reasonably acceptable to the
Purchaser or Depositor, as applicable, pertaining to Static Pool Information
relating to prior securitized pools for securitizations closed on or after
January 1, 2006 or, in the case of Static Pool Information with respect to the
Seller's or Third-Party Originator's originations or purchases, to calendar
months commencing January 1, 2006, as the Purchaser or such Depositor shall
reasonably request. Such letters shall be addressed to and be for the benefit of
such parties as the Purchaser or such Depositor shall designate, which may
include, by way of example, any Sponsor, any Depositor and any broker dealer
acting as underwriter, placement agent or initial purchaser with respect to a
Securitization Transaction. Any such statement or letter may take the form of a
standard, generally applicable document accompanied by a reliance letter
authorizing reliance by the addressees designated by the Purchaser or such
Depositor.
(c) With respect to those Mortgage Loans that were originated by the
Seller and sold to the Purchaser pursuant to this Agreement and subsequently
securitized by the Purchaser or any of its Affiliates, the Purchaser shall, to
the extent consistent with then-current industry practice, cause the servicer
(or another party to such securitization) under the securitization to provide,
information with respect to the Mortgage Loans from and after cut-off date of
such securitization necessary for the Seller to comply with its obligations
under Regulation AB, including, without limitation, providing to the Seller
static pool information, as set forth in Item 1105(a)(2) and (5) of Regulation
AB.
(d) If so requested by the Purchaser or any Depositor for the
purpose of satisfying its reporting obligation under the Exchange Act with
respect to any class of asset-backed securities, the Seller shall (or shall
cause each Third-Party Originator to) (i) notify the Purchaser and any Depositor
in writing of any material litigation or governmental proceedings pending
against the Seller or any Third-Party Originator and (ii) provide to the
Purchaser and any Depositor a description of such proceedings.
Subsection 33.04 Indemnification.
The Seller shall indemnify the Purchaser, each affiliate of the
Purchaser, and each of the following parties participating in a Securitization
Transaction: each sponsor and issuing entity; each Person responsible for the
preparation, execution or filing of any report required to be filed with the
Commission with respect to such Securitization Transaction, or for execution of
a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange
Act with respect to such Securitization Transaction; each broker dealer acting
as underwriter, placement agent or initial purchaser, each Person who controls
any of such parties or the Depositor (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act); and the respective present
and former directors, officers, employees and agents of each of the foregoing
and of the Depositor, 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 in
any information, report, certification, accountants' letter or other
material provided in written or electronic form under this Section
33 by or on behalf of the Seller, or provided under this Section 33
by or on behalf of any Third-Party Originator at the Seller's
request (collectively, the "Seller Information"), or (B) the
omission to state in the Seller Information a material fact required
to be stated in the Seller Information or necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, by way of
clarification, that clause (B) of this paragraph shall be construed
solely by reference to the Seller Information and not to any other
information communicated in connection with a sale or purchase of
securities, without regard to whether the Seller Information or any
portion thereof is presented together with or separately from such
other information;
(ii) any failure by the Seller or any Third-Party Originator
to deliver any information, report, certification, accountants'
letter or other material when and as required under this Section 33;
or
(iii) any breach by the Seller of a representation or warranty
set forth in Subsection 33.02(a) or in a writing furnished pursuant
to Subsection 33.02(b) and made as of a date prior to the closing
date of the related Securitization Transaction, to the extent that
such breach is not cured by such closing date, or any breach by the
Seller of a representation or warranty in a writing furnished
pursuant to Subsection 33.02(b) to the extent made as of a date
subsequent to such closing date.
In the case of any failure of performance described in clause
(a)(ii) of this Section, the Seller shall promptly reimburse the Purchaser, any
Depositor, as applicable, and each Person responsible for the preparation,
execution or filing of any report required to be filed with the Commission with
respect to such Securitization Transaction, or for execution of a certification
pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect
to such Securitization Transaction, for all costs reasonably incurred by each
such party in order to obtain the information, report, certification,
accountants' letter or other material not delivered as required by the Seller or
any Third-Party Originator.
[Signatures Commence on Following Page]
IN WITNESS WHEREOF, the Seller and the Purchaser have caused
their names to be signed hereto by their respective officers thereunto duly
authorized as of the date first above written.
XXXXXXX XXXXX MORTGAGE COMPANY,
a New York limited partnership
(Purchaser)
By: XXXXXXX XXXXX REAL ESTATE
FUNDING CORP., a New York
corporation, as General
Partner
By: _____________________________
Name:
Title:
NOVELLE FINANCIAL SERVICES, INC.,
(Seller)
By: _____________________________
Name:
Title:
[MLPA NOVELLE FINANCIAL SERVICES, INC. DEC 2005]
EXHIBIT A
CONTENTS OF EACH MORTGAGE FILE
------------------------------
With respect to each Mortgage Loan, the Mortgage File shall include
each of the following items, which shall be available for inspection by the
Purchaser and any prospective Purchaser, and which shall be delivered to the
Custodian, or to such other Person as the Purchaser shall designate in writing,
pursuant to Section 6 of the Flow Mortgage Loan Purchase and Warranties
Agreement to which this Exhibit is attached (the "Agreement"):
(a) the original Mortgage Note bearing all intervening endorsements,
endorsed "Pay to the order of _________, without recourse" and signed in the
name of the last endorsee (the "Last Endorsee") by an authorized officer. To the
extent that there is no room on the face of the Mortgage Notes for endorsements,
the endorsement may be contained on an allonge, if state law so allows and the
Custodian is so advised by the Seller that state law so allows. If the Mortgage
Loan was acquired by the Seller in a merger, the endorsement must be by "[Last
Endorsee], successor by merger to [name of predecessor]". If the Mortgage Loan
was acquired or originated by the Last Endorsee while doing business under
another name, the endorsement must be by "[Last Endorsee], formerly known as
[previous name]";
(b) the original of any guarantee executed in connection with the
Mortgage Note;
(c) the original Mortgage with evidence of recording thereon. If in
connection with any Mortgage Loan, the Seller cannot deliver or cause to be
delivered the original Mortgage with evidence of recording thereon on or prior
to the related Closing Date because of a delay caused by the public recording
office where such Mortgage has been delivered for recordation or because such
Mortgage has been lost or because such public recording office retains the
original recorded Mortgage, the Seller shall deliver or cause to be delivered to
the Custodian, a photocopy of such Mortgage, together with (i) in the case of a
delay caused by the public recording office, an Officer's Certificate of the
Seller (or certified by the title company, escrow agent, or closing attorney)
stating that such Mortgage has been dispatched to the appropriate public
recording office for recordation and that the original recorded Mortgage or a
copy of such Mortgage certified by such public recording office to be a true and
complete copy of the original recorded Mortgage will be promptly delivered to
the Custodian upon receipt thereof by the Seller; or (ii) in the case of a
Mortgage where a public recording office retains the original recorded Mortgage
or in the case where a Mortgage is lost after recordation in a public recording
office, a copy of such Mortgage certified by such public recording office to be
a true and complete copy of the original recorded Mortgage;
(d) the originals of all assumption, modification, consolidation or
extension agreements, if any, with evidence of recording thereon;
(e) except with respect to each MERS Designated Mortgage Loan, the
original Assignment of Mortgage for each Mortgage Loan, in form and substance
acceptable for recording. The Assignment of Mortgage must be duly recorded only
if recordation is either necessary under applicable law or commonly required by
private institutional mortgage investors in the area where the Mortgaged
Property is located or on direction of the Purchaser as provided in this
Agreement. If the Assignment of Mortgage is to be recorded, the Mortgage shall
be assigned to the Purchaser. If the Assignment of Mortgage is not to be
recorded, the Assignment of Mortgage shall be delivered in blank. If the
Mortgage Loan was acquired by the Seller in a merger, the Assignment of Mortgage
must be made by "Novelle Financial Services, Inc., successor by merger to [name
of predecessor]". If the Mortgage Loan was acquired or originated by the Seller
while doing business under another name, the Assignment of Mortgage must be by
"Novelle Financial Services, Inc., formerly known as [previous name]";
(f) the originals of all intervening assignments of mortgage (if
any) evidencing a complete chain of assignment from the originator to the Last
Endorsee (or to MERS with respect to each MERS Designated Mortgage Loan) with
evidence of recording thereon, or if any such intervening assignment has not
been returned from the applicable recording office or has been lost or if such
public recording office retains the original recorded assignments of mortgage,
the Seller shall deliver or cause to be delivered to the Custodian, a photocopy
of such intervening assignment, together with (i) in the case of a delay caused
by the public recording office, an Officers Certificate of the Seller (or
certified by the title company, escrow agent, or closing attorney) stating that
such intervening assignment of mortgage has been dispatched to the appropriate
public recording office for recordation and that such original recorded
intervening assignment of mortgage or a copy of such intervening assignment of
mortgage certified by the appropriate public recording office to be a true and
complete copy of the original recorded intervening assignment of mortgage will
be promptly delivered to the Custodian upon receipt thereof by the Seller; or
(ii) in the case of an intervening assignment where a public recording office
retains the original recorded intervening assignment or in the case where an
intervening assignment is lost after recordation in a public recording office, a
copy of such intervening assignment certified by such public recording office to
be a true and complete copy of the original recorded intervening assignment;
(g) The original mortgagee policy of title insurance or, in the
event such original title policy is unavailable, a certified true copy of the
related policy binder or commitment for title certified to be true and complete
by the title insurance company; and
(h) security agreement, chattel mortgage or equivalent document
executed in connection with the Mortgage.
In the event an Officer's Certificate of the Seller is delivered to
the Purchaser because of a delay caused by the public recording office in
returning any recorded document, the Seller shall deliver to the Purchaser,
within ninety (90) days of the related Closing Date, an Officer's Certificate
which shall (i) identify the recorded document, (ii) state that the recorded
document has not been delivered to the Custodian due solely to a delay caused by
the public recording office, (iii) state the amount of time generally required
by the applicable recording office to record and return a document submitted for
recordation, and (iv) specify the date the applicable recorded document will be
delivered to the Custodian. An extension of the date specified in (iv) above may
be requested from the Purchaser, which consent shall not be unreasonably
withheld.
EXHIBIT B
CONTENTS OF EACH CREDIT FILE
----------------------------
(a) The original hazard insurance policy and, if required by law,
flood insurance policy.
(b) Residential loan application.
(c) Mortgage Loan closing statement.
(d) Verification of employment and income (except for Mortgage Loans
originated under a Limited Documentation Program).
(e) Verification of acceptable evidence of source and amount of
downpayment.
(f) Credit report on the Mortgagor.
(g) Residential appraisal report, if available.
(h) Photograph of the Mortgaged Property.
(i) Survey of the Mortgaged Property, if any.
(j) Copy of each instrument necessary to complete identification of
any exception set forth in the exception schedule in the title policy, i.e., map
or plat, restrictions, easements, sewer agreements, home association
declarations, etc.
(k) All required disclosure statements.
(l) If available, termite report, structural engineer's report,
water potability and septic certification.
(m) Sales contract, if applicable.
(n) Tax receipts, insurance premium receipts, ledger sheets, payment
history from date of origination, insurance claim files, correspondence, current
and historical computerized data files, and all other processing, underwriting
and closing papers and records which are customarily contained in a mortgage
loan file and which are required to document the Mortgage Loan or to service the
Mortgage Loan.
(o) Amortization schedule, if applicable.
EXHIBIT C
SELLER'S OFFICER'S CERTIFICATE
------------------------------
I, ____________________, hereby certify that I am the duly elected
[Vice] President of Novelle Financial Services, Inc., a corporation organized
under the laws of the State of Delaware (the "Company") and further as follows:
1. Attached hereto as Exhibit 1 is a true, correct and complete copy
of the charter of the Company which is in full force and effect on the
date hereof and which has been in effect without amendment, waiver,
rescission or modification since ___________.
2. Attached hereto as Exhibit 2 is a true, correct and complete copy
of the bylaws of the Company which are in effect on the date hereof and
which have been in effect without amendment, waiver, rescission or
modification since ___________.
3. Attached hereto as Exhibit 3 is an original certificate of good
standing of the Company issued within ten days of the date hereof, and no
event has occurred since the date thereof which would impair such
standing.
4. Attached hereto as Exhibit 4 is a true, correct and complete copy
of the corporate resolutions of the Board of Directors of the Company
authorizing the Company to execute and deliver each of the Flow Mortgage
Loan Purchase and Warranties Agreement, dated as of December 1, 2005, by
and between Xxxxxxx Xxxxx Mortgage Company (the "Purchaser") and the
Company (the "Purchase Agreement"), the Flow Interim Servicing Agreement,
dated as of December 1, 2005, by and between the Purchaser and the Company
(the "Servicing Agreement", together with the Purchase Agreement, the
"Agreements") and such resolutions are in effect on the date hereof and
have been in effect without amendment, waiver, rescission or modification
since ____________.
5. Either (i) no consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Company of or compliance by the Company
with the Agreements, the sale of the mortgage loans or the consummation of
the transactions contemplated by the agreements; or (ii) any required
consent, approval, authorization or order has been obtained by the
Company.
6. Neither the consummation of the transactions contemplated by, nor
the fulfillment of the terms of the Agreements conflicts or will conflict
with or results or will result in a breach of or constitutes or will
constitute a default under the charter or by-laws of the Company, the
terms of any indenture or, to the best of the Company's knowledge, other
agreement or instrument to which the Company is a party or by which it is
bound or to which it is subject, or any statute or order, rule,
regulations, writ, injunction or decree of any court, governmental
authority or regulatory body to which the Company is subject or by which
it is bound.
7. To the best of my knowledge, there is no action, suit, proceeding
or investigation pending or threatened against the Company which, in my
judgment, either in any one instance or in the aggregate, may result in
any material adverse change in the business, operations, financial
condition, properties or assets of the Company or in any material
impairment of the right or ability of the Company to carry on its business
substantially as now conducted or in any material liability on the part of
the Company or which would draw into question the validity of the
Agreements, or the mortgage loans or of any action taken or to be taken in
connection with the transactions contemplated hereby, or which would be
likely to impair materially the ability of the Company to perform under
the terms of the Agreements.
8. Each person who, as an officer or representative of the Company,
signed the Agreements and any other document delivered or on the date
hereof in connection with any purchase described in the agreements set
forth above was, at the respective times of such signing and delivery, and
is now, a duly elected or appointed, qualified and acting officer or
representative of the Company and the signatures of such persons appearing
on such documents are their genuine signatures.
9. The Company is duly authorized to engage in the transactions
described and contemplated in the Agreements.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the
seal of the Company.
Dated: ____________________ By:__________________________
Name:________________________
[Seal] Title: [Vice] President
I, ________________________, an [Assistant] Secretary of Novelle
Financial Services, Inc., hereby certify that ____________ is the duly elected,
qualified and acting [Vice] President of the Company and that the signature
appearing above is [her] [his] genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated: ____________________ By:__________________________
Name:________________________
Title: [Assistant] Secretary
EXHIBIT D
FORM OF OPINION OF COUNSEL TO THE SELLER
(date)
Xxxxxxx Xxxxx Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
You have requested [our] [my] opinion, as [Assistant] General
Counsel to ___________________ (the "Company"), with respect to certain matters
in connection with the sale by the Company of the Mortgage Loans pursuant to
that certain Flow Mortgage Loan Purchase and Warranties Agreement by and between
the Company and Xxxxxxx Xxxxx Mortgage Company (the "Purchaser"), dated as of
_________ __, 200_ (the "Purchase Agreement") which sale is in the form of whole
loans and that certain Flow Interim Servicing Agreement by and between the
Company and Xxxxxxx Xxxxx Mortgage Company (the "Purchaser"), dated as of
_________ __, 200_ (the "Servicing Agreement", together with the Purchase
Agreement, the "Agreements"). Capitalized terms not otherwise defined herein
have the meanings set forth in the Purchase Agreement.
[We] [I] have examined the following documents:
1. the Agreements;
2. the form of Assignment of Mortgage;
3. the form of endorsement of the Mortgage Notes; and
4. such other documents, records and papers as we have deemed
necessary and relevant as a basis for this opinion.
To the extent [we] [I] have deemed necessary and proper, [we] [I]
have relied upon the representations and warranties of the Company contained in
the Purchase Agreement. [We] [I] have assumed the authenticity of all documents
submitted to [us] [me] as originals, the genuineness of all signatures, the
legal capacity of natural persons and the conformity to the originals of all
documents.
Based upon the foregoing, it is [our] [my] opinion that:
1. The Company is a [type of entity] duly organized, validly
existing and in good standing under the laws of ___________
and is qualified to transact business in, and is in good
standing under, the laws of [the state of incorporation].
2. The Company has the power to engage in the transactions
contemplated by the Agreements and all requisite power,
authority and legal right to execute and deliver such
Agreements and to perform and observe the terms and conditions
of such Agreements.
3. Each of the Agreements has been duly authorized, executed and
delivered by the Company, and is a legal, valid and binding
agreement enforceable in accordance with its respective terms
against the Company, subject to bankruptcy laws and other
similar laws of general application affecting rights of
creditors and subject to the application of the rules of
equity, including those respecting the availability of
specific performance, none of which will materially interfere
with the realization of the benefits provided thereunder or
with the Purchaser's ownership of the Mortgage Loans.
4. The Company has been duly authorized to allow certain of its
officers to execute any and all documents by original
signature in order to complete the transactions contemplated
by the Agreements.
5. The Company has been duly authorized to allow certain
employees to execute by original [or facsimile] signature the
endorsements to the Mortgage Notes and the Assignments of
Mortgages, and the original [or facsimile] signature of the
employee at the Company executing the endorsements to the
Mortgage Notes and the Assignments of Mortgages represents the
legal and valid signature of said officer of the Company.
6. Either (i) no consent, approval, authorization or order of any
court or governmental agency or body is required for the
execution, delivery and performance by the Company of or
compliance with the Agreements and the sale of the Mortgage
Loans by the Company or the consummation of the transactions
contemplated by the Agreements or (ii) any required consent,
approval, authorization or order has been obtained by the
Company.
7. Neither the consummation of the transactions contemplated by,
nor the fulfillment of the terms of, the Agreements conflicts
or will conflict with or results or will result in a breach of
or constitutes or will constitute a default under the charter
or by-laws of the Company, the terms of any indenture or, to
the best of the Company's knowledge, other agreement or
instrument to which the Company is a party or by which it is
bound or to which it is subject, or violates any statute or
order, rule, regulations, writ, injunction or decree of any
court, governmental authority or regulatory body to which the
Company is subject or by which it is bound.
8. There is no action, suit, proceeding or investigation pending
or, to the best of [our] [my] knowledge, threatened against
the Company which, in [our] [my] judgment, either in any one
instance or in the aggregate, may result in any material
adverse change in the business, operations, financial
condition, properties or assets of the Company or in any
material impairment of the right or ability of the Company to
carry on its business substantially as now conducted or in any
material liability on the part of the Company or which would
draw into question the validity of the Agreements to which it
is a party or the Mortgage Loans or of any action taken or to
be taken in connection with the transactions contemplated
thereby, or which would be likely to impair materially the
ability of the Company to perform under the terms of the
Agreements.
9. The sale of each Mortgage Note and Mortgage as and in the
manner contemplated by the Purchase Agreement and the
Servicing Agreement is sufficient to fully transfer to the
Purchaser all right, title and interest of the Company thereto
as noteholder and mortgagee.
10. The Mortgages have been duly assigned and the Mortgage Notes
have been duly endorsed as provided in Exhibit A to the
Purchase Agreement. The Assignments of Mortgage are in
recordable form, except for the insertion of the name of the
assignee, and upon the name of the assignee being inserted,
are acceptable for recording under the laws of the state where
each related Mortgaged Property is located. The endorsement of
the Mortgage Notes, the delivery to the Purchaser, or its
designee, of the Assignments of Mortgage, and the delivery of
the original endorsed Mortgage Notes to the Purchaser, or its
designee, are sufficient to permit the Purchaser to avail
itself of all protection available under applicable law
against the claims of any present or future creditors of the
Company, and are sufficient to prevent any other sale,
transfer, assignment, pledge or hypothecation of the Mortgages
and the Mortgage Notes by the Company from being enforceable.
This opinion is given to you for your sole benefit, and no other
person or entity is entitled to rely hereon except that the purchaser or
purchasers to which you initially and directly resell the Mortgage Loans may
rely on this opinion as if it were addressed to them as of its date.
Very truly yours,
-----------------------------
[Name]
[Assistant] General Counsel
EXHIBIT E
FORM OF SECURITY RELEASE CERTIFICATION
--------------------------------------
___________________, 200__
[Federal Home Loan Bank of
______ (the "Association")]
___________________________
___________________________
___________________________
Attention: ___________________________
___________________________
Re: Notice of Sale and Release of Collateral
Dear Sirs:
This letter serves as notice that Novelle Financial Services, Inc.,
a corporation organized pursuant to the laws of the State of Delaware (the
"Company") has committed to sell to Xxxxxxx Xxxxx Mortgage Company under a Flow
Mortgage Loan Purchase and Warranties Agreement, dated as of ______ __, 200_,
certain mortgage loans originated by the Association. The Company warrants that
the mortgage loans to be sold to Xxxxxxx Xxxxx Mortgage Company are in addition
to and beyond any collateral required to secure advances made by the Association
to the Company.
The Company acknowledges that the mortgage loans to be sold to
Xxxxxxx Xxxxx Mortgage Company shall not be used as additional or substitute
collateral for advances made by the Association. Xxxxxxx Xxxxx Mortgage Company
understands that the balance of the Company's mortgage loan portfolio may be
used as collateral or additional collateral for advances made by the
Association, and confirms that it has no interest therein.
Execution of this letter by the Association shall constitute a full
and complete release of any security interest, claim, or lien which the
Association may have against the mortgage loans to be sold to Xxxxxxx Xxxxx
Mortgage Company.
Very truly yours,
___________________________
By:__________________________
Name:________________________
Title:_______________________
Date:________________________
Acknowledged and approved:
___________________________
By:_____________________________
Name:___________________________
Title:__________________________
Date:___________________________
EXHIBIT F
FORM OF SECURITY RELEASE CERTIFICATION
--------------------------------------
I. Release of Security Interest
----------------------------
The financial institution named below hereby relinquishes any and
all right, title and interest it may have in all Mortgage Loans to be purchased
by to Xxxxxxx Xxxxx Mortgage Company from the Company named below pursuant to
that certain Flow Mortgage Loan Purchase and Warranties Agreement, dated as of
______ __, 200_, and certifies that all notes, mortgages, assignments and other
documents in its possession relating to such Mortgage Loans have been delivered
and released to the Company named below or its designees, as of the date and
time of the sale of such Mortgage Loans to Xxxxxxx Xxxxx Mortgage Company.
Name and Address of Financial Institution
________________________________
(name)
________________________________
(Address)
By:_____________________________
II. Certification of Release
------------------------
The Company named below hereby certifies to
___________________________ that, as of the date and time of the sale of the
above-mentioned ___________________________________ the security interests in
the Mortgage Loans released by the above-named financial institution comprise
all security interests relating to or affecting any and all such Mortgage Loans.
The Company warrants that, as of such time, there are and will be no other
security interests affecting any or all of such Mortgage Loans.
_____________________________
By:__________________________
Title:_______________________
Date:________________________
EXHIBIT G
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
-------------------------------------------
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated ______________, between
__________________________________, a ___________________ corporation
("Assignor") and ________________________________, a __________________
corporation ("Assignee"):
For good and valuable consideration the receipt and sufficiency of
which hereby are acknowledged, and of the mutual covenants herein contained, the
parties hereto hereby agree as follows:
1. The Assignor hereby grants, transfers, conveys and assigns to
Assignee, as Purchaser, all of the right, title and interest of Assignor with
respect to the mortgage loans listed on Exhibit A attached hereto (the "Mortgage
Loans"), and with respect to such Mortgage Loans, in, to and under (a) that
certain Flow Mortgage Loan Purchase and Warranties Agreement, dated as of
December 1, 2005, by and between the Xxxxxxx Xxxxx Mortgage Company (the
"Purchaser") and Novelle Financial Services, Inc. (the "Purchase Agreement"),
and (b) that certain Flow Interim Servicing Agreement, dated as of December 1,
2005, by and between the Purchaser and Novelle Financial Services, Inc. (the
"Servicing Agreement"); and (c) the Purchase Agreement and the Servicing
Agreement are collectively referred to as the "Agreements").
2. The Assignor warrants and represents to, and covenants with, the
Assignee that:
a. The Assignor is the lawful owner of the Mortgage Loans with
the full right to transfer the Mortgage Loans free from any and all claims and
encumbrances whatsoever;
b. The Assignor has not received notice of, and has no knowledge
of, any offsets, counterclaims or other defenses available to the Seller with
respect to the Agreements or the Mortgage Loans;
c. The Assignor has not waived or agreed to any waiver under, or
agreed to any amendment or other modification of, the Agreements. The Assignor
has no knowledge of, and has not received notice of, any waivers under or
amendments or other modifications of, or assignments of rights or obligations
under, the Agreements; and
d. Neither the Assignor nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Mortgage Loans
or any interest in the Mortgage Loans, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Mortgage Loans, or any interest in
the Mortgage Loans or otherwise approached or negotiated with respect to the
Mortgage Loans, or any interest in the Mortgage with any person in any manner,
or made any general solicitation by means of general advertising or in any other
manner, or taken any other action which would constitute a distribution of the
Mortgage Loans under the Securities Act of 1933, as amended (the "1933 Act") or
which would render the disposition of the Mortgage Loans a violation of Section
5 of the 1933 Act or require registration pursuant thereto.
3. The Assignee warrants and represents to, and covenants with, the
Assignor and the Seller pursuant to the Agreements that:
a. The Assignee is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation,
and has all requisite corporate power and authority to acquire, own and purchase
the Mortgage Loans;
b. The Assignee has full corporate power and authority to
execute, deliver and perform under this Assignment and Assumption Agreement, and
to consummate the transactions set forth herein. The execution, delivery and
performance of the Assignee of this Assignment and Assumption Agreement, and the
consummation by it of the transactions contemplated hereby, have been duly
authorized by all necessary corporate action of the Assignee. This Assignment
and Assumption Agreement has been duly executed and delivered by the Assignee
and constitutes the valid and legally binding obligation of the Assignee
enforceable against the Assignee in accordance with its respective terms;
c. To the best of Assignee's knowledge, no material consent,
approval, order or authorization of, or declaration, filing or registration
with, any governmental entity is required to be obtained or made by the Assignee
in connection with the execution, delivery or performance by the Assignee of
this Assignment and Assumption Agreement, or the consummation by it of the
transactions contemplated hereby;
d. The Assignee agrees to be bound, as Purchaser, by all of the
terms, covenants and conditions of the Agreements, the Mortgage Loans, and from
and after the date hereof, the Assignee assumes for the benefit of each of the
Seller, the Assignor and the Custodian all of the Assignor's obligations as
Purchaser thereunder; including, without limitation, the limitation on
assignment set forth in Section 22 of the Purchase Agreement;
e. The Assignee understands that the Mortgage Loans have not been
registered under the 1933 Act or the securities laws of any state;
f. The purchase price being paid by the Assignee for the Mortgage
Loans is in excess of $250,000 and will be paid by cash remittance of the full
purchase price within 60 days of the sale;
g. The Assignee is acquiring the Mortgage Loans for investment
for its own account only and not for any other person;
h. The Assignee considers itself a substantial, sophisticated
institutional investor having such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of
investment in the Mortgage Loans;
i. The Assignee has been furnished with all information regarding
the Mortgage Loans that it has requested from the Assignor or the Seller;
j. Neither the Assignee nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Mortgage Loans
or any interest in the Mortgage Loans, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Mortgage Loans or any interest in
the Mortgage Loans, or otherwise approached or negotiated with respect to the
Mortgage Loans or any interest in the Mortgage Loans with any person in any
manner which would constitute a distribution of the Mortgage Loans under the
1933 Act or which would render the disposition of the Mortgage Loans a violation
of Section 5 of the 1933 Act or require registration pursuant thereto, nor will
it act, nor has it authorized or will it authorize any person to act, in such
manner with respect to the Mortgage Loans; and
k. Either: (1) the Assignee is not an employee benefit plan
("Plan") within the meaning of section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") or a plan (also "Plan") within the
meaning of section 4975(e)(1) of the Internal Revenue Code of 1986, as amended
("Code"), and the Assignee is not directly or indirectly purchasing the Mortgage
Loans on behalf of, investment manager of, as named fiduciary of, as Trustee of,
or with assets of, a Plan; or (2) the Assignee's purchase of the Mortgage Loans
will not result in a prohibited transaction under section 406 of ERISA or
section 4975 of the Code.
4. (a) The Assignee's address for purposes of all notices and
correspondence related to the Mortgage Loans, this Assignment and Assumption
Agreement and the Agreements is:
The Assignee's wire instructions for purposes of all remittances and
payments related to the Mortgage Loans are:
(b) The Assignor's address for purposes for all notices and
correspondence related to the Mortgage Loans and this Assignment and Assumption
Agreement is:
5. This Assignment and Assumption Agreement shall be construed in
accordance with the laws of the State of New York and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws, except to the extent preempted by federal law.
6. This Assignment and Assumption Agreement shall inure to the
benefit of the successors and assigns of the parties hereto. This Assignment and
Assumption Agreement may not be assigned by the Assignee without the express
written consent of the Assignor. Any entity into which the Assignor or Assignee
may be merged or consolidated shall, without the requirement for any further
writing, be deemed the Assignor or Assignee, respectively, hereunder.
7. No term or provision of this Assignment and Assumption Agreement
may be waived or modified unless such waiver or modification is in writing and
signed by the party against whom such waiver or modification is sought to be
enforced.
8. This Assignment and Assumption Agreement shall survive the
conveyance of the Mortgage Loans and the assignment of the Agreements by the
Assignor.
9. Notwithstanding the assignment of the Agreements by either the
Assignor or Assignee, this Assignment and Assumption Agreement shall not be
deemed assigned by the Assignor or the Assignee unless assigned by separate
written instrument.
10. For the purpose for facilitating the execution of this
Assignment and Assumption Agreement as herein provided and for other purposes,
this Assignment and Assumption Agreement may be executed simultaneously in any
number of counterparts, each of which counterparts shall be deemed to be an
original, and such counterparts shall constitute and be one and the same
instrument.
IN WITNESS WHEREOF, the parties have caused this Assignment and
Assumption Agreement to be executed by their duly authorized officers as of the
date first above written.
______________________________ _____________________________
Assignor Assignee
By:___________________________ By:__________________________
Its:__________________________ Its:_________________________
Taxpayer Taxpayer
Identification No.____________ Identification No.___________
EXHIBIT H
[INTENTIONALLY OMITTED]
EXHIBIT I
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE POOL
-------------------------------------------------------
CHARACTERISTICS OF THE MORTGAGE LOANS
-------------------------------------
Pool Characteristics of the Mortgage Loans as delivered on the
Closing Date:
EXHIBIT J
ORIGINATOR'S UNDERWRITING GUIDELINES
------------------------------------
EXHIBIT K
MORTGAGE LOAN SCHEDULE
----------------------
EXHIBIT L
[INTENTIONALLY OMITTED]
-----------------------
EXHIBIT M
ASSIGNMENT AND CONVEYANCE
-------------------------
On this __ day of _________, 200_, Novelle Financial Services, Inc.,
as the Seller, under that certain Flow Mortgage Loan Purchase and Warranties
Agreement, dated as of December 1, 2005 (the "Agreement") does hereby sell,
transfer, assign, set over and convey to Xxxxxxx Xxxxx Mortgage Company, as
Purchaser under the Agreement all rights, title and interest of the Seller in
and to (a) the Mortgage Loans listed on the related Mortgage Loan Schedule
attached as Exhibit 1 hereto, and (b) the Servicing Rights, together with the
related Mortgage Files and all rights and obligations arising under the
documents contained therein. Pursuant to Subsection 6.03 of the Agreement, the
Seller has delivered to the Custodian the documents for each Mortgage Loan to be
purchased as set forth in the Agreement. The ownership of each Mortgage Note,
Mortgage, and the contents of each Mortgage File is vested in the Purchaser and
the ownership of all records and documents with respect to the related Mortgage
Loan prepared by or which come into the possession of the Seller shall
immediately vest in the Purchaser and shall be delivered promptly by the Seller
to the Purchaser.
The Seller confirms to the Purchaser that, unless otherwise agreed
upon in writing by the Seller and the Purchaser, the representations and
warranties set forth in Subsection 4.02 of the Agreement with respect to the
Mortgage Loans listed on the Mortgage Loan Schedule attached hereto, and the
representations and warranties in Subsection 4.01 of the Agreement with respect
to the Seller are true and correct as of the date hereof.
Capitalized terms used herein and not otherwise defined shall have
the meanings set forth in the Agreement.
NOVELLE FINANCIAL SERVICES, INC.,
(Seller)
By:__________________________
Name:________________________
Title:_______________________
EXHIBIT N
FORM OF INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AND CONTRIBUTION AGREEMENT dated [_______],
200___ ("Agreement") between GS Mortgage Securities Corp., a Delaware
corporation (the "Depositor"), and [___________________], a [_________]
corporation (the "Indemnifying Party").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Indemnifying Party or its Affiliate originated or
acquired the Mortgage Loans and subsequently sold the Mortgage Loans to an
Affiliate of the Depositor in anticipation of the securitization transaction;
and
WHEREAS, as an inducement to the Depositor to enter into the
Assignment and Recognition Agreement, to the Underwriter[s] to enter into the
Underwriting Agreement (as defined herein), and to the Initial Purchaser[s] to
enter into the Certificate Purchase Agreement (as defined herein), the
Indemnifying Party wishes to provide for indemnification and contribution on the
terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and of other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
Subsection 1.01 Certain Defined Terms. The following terms shall
have the meanings set forth below, unless the context clearly indicates
otherwise:
1933 Act: The Securities Act of 1933, as amended.
1934 Act: The Securities Exchange Act of 1934, as amended.
ABS Informational and Computational Material: Any written
communication as defined in Item 1101(a) of Regulation AB under the 1933 Act and
the 1934 Act, as may be amended from time to time.
Agreement: This Indemnification and Contribution Agreement, as the
same may be amended in accordance with the terms hereof.
Certificate Purchase Agreement: The Purchase Agreement, dated as of
[______], 200___, [among] the Depositor and the Initial Purchaser[s], relating
to the Privately Offered Certificates.
Free Writing Prospectus: Any written communication that constitutes
a "free writing prospectus," as defined in Rule 405 under the 1933 Act.
GSMC: Xxxxxxx Xxxxx Mortgage Company, a New York limited
partnership, and its successors and assigns.
Indemnified Parties: As defined in Section 3.01.
Indemnifying Party Information: (A) All information in the
Prospectus Supplement, the Offering Circular, ABS Informational and
Computational Materials, or any Free Writing Prospectus or any amendment or
supplement thereto, (i) contained under the headings ["Transaction
Overview--Parties--The Responsible Party"] and ["The Mortgage Loan
Pool--Underwriting Guidelines"] and (ii) regarding the Mortgage Loans, the
related Mortgagors and/or the related Mortgaged Properties (but in the case of
this clause (ii), only to the extent any untrue statement or omission or arises
from or is based upon errors or omissions in the information concerning the
Mortgage Loans, the related Mortgagors and/or the related Mortgaged Properties,
as applicable, provided to the Depositor or any Affiliate thereof by or on
behalf of the Indemnifying Party or any Affiliate thereof), and (B) [and static
pool information regarding mortgage loans originated or acquired by the Seller
[and included in the Prospectus Supplement, the Offering Circular, ABS
Informational and Computational Materials or any Free Writing Prospectus]
[incorporated by reference from the website located at ______________].
Offering Circular: The offering circular, dated [_______], 200___,
relating to the private offering of the Privately Offered Certificates.
Person: Any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Pooling and Servicing Agreement: The Pooling and Servicing
Agreement, dated as of [_______], 200___, among the Depositor, the Indemnifying
Party, [Servicer], as servicer, and [Trustee], as trustee.
Privately Offered Certificates: [__________________], issued
pursuant to the Pooling and Servicing Agreement.
Prospectus Supplement: The prospectus supplement, dated [______],
200___, relating to the public offering of the Publicly Offered Certificates.
Publicly Offered Certificates: [______________________________],
issued pursuant to the Pooling and Servicing Agreement.
Underwriters: Xxxxxxx, Xxxxx & Co., a New York limited partnership[,
and [____________], a [___________] corporation], and their successors and
assigns.
Underwriting Agreement: The Underwriting Agreement, dated as of
[________], 200__, [among] the Depositor and the Underwriter[s], relating to the
Publicly Offered Certificates.
Other Terms. Capitalized terms used but not defined herein shall
have the meanings assigned to such terms in the Pooling and Servicing Agreement.
SECTION 2. REPRESENTATIONS AND WARRANTIES. Each party hereto
represents and warrants that:
(a) it has all requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement;
(b) this Agreement has been duly authorized, executed and delivered
by such party; and
(c) assuming the due authorization, execution and delivery by each
other party hereto, this Agreement constitutes the legal, valid and binding
obligation of such party.
SECTION 3. INDEMNIFICATION
Subsection 3.01 Indemnification by the Indemnifying Party of the
Depositor and the Underwriters.
(a) The Indemnifying Party shall indemnify and hold harmless the
Depositor, GSMC, [each of] the Underwriter[s], the Initial Purchaser[s], and
their respective Affiliates and their respective present and former directors,
officers, partners and each Person, if any, that controls the Depositor, GSMC,
such Underwriter, such Initial Purchaser, or such Affiliate, within the meaning
of either the 1933 Act or the 1934 Act (collectively, the "Indemnified Parties")
against any and all losses, claims, damages, penalties, fines, forfeitures, or
liabilities, joint or several, to which each such Indemnified Party may become
subject, under the 1933 Act, the 1934 Act or otherwise, to the extent that such
losses, claims, damages, penalties, fines, forfeitures, or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
of any material fact contained in the Prospectus Supplement, the Offering
Circular, ABS Informational and Computational Materials, any Free Writing
Prospectus or any amendment or supplement thereto, or arise out of or are based
upon the omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading, to the extent that such untrue statement
or omission relates to information set forth in the Indemnifying Party
Information, and the Indemnifying Party shall in each case reimburse each
Indemnified Party for any legal or other expenses reasonably incurred by such
Indemnified Party in connection with investigating or defending any such loss,
claim, damage, liability, penalties, fines, forfeitures, or action. The
Indemnifying Party's liability under this Section 3.01 shall be in addition to
any other liability that the Indemnifying Party may otherwise have.
(b) If the indemnification provided for in this Section 3.01 shall
for any reason be unavailable to an Indemnified Party under this Section 3.01,
then the party which would otherwise be obligated to indemnify with respect
thereto, on the one hand, and the parties which would otherwise be entitled to
be indemnified, on the other hand, shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated herein and
incurred by the parties hereto in such proportions that are appropriate to
reflect the relative fault of the Depositor, GSMC, the Underwriter[s], and the
Initial Purchaser[s], on one hand, and the Indemnifying Party, on the other
hand, in connection with the applicable misstatements or omissions as well as
any other relevant equitable considerations. Notwithstanding the foregoing, no
Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any Person that
was not guilty of such fraudulent misrepresentation. For purposes of this
Section 3.01, each director, officer, partner and controlling Person, of the
Depositor, GSMC, the Underwriter[s] and the Initial Purchaser[s] and their
respective Affiliates shall have the same rights to contribution as such Person.
Subsection 3.02 Notification; Procedural Matters. Promptly after
receipt by an Indemnified Party under Section 3.01 of notice of any claim or the
commencement of any action, such Indemnified Party shall, if a claim in respect
thereof is to be made against the Indemnifying Party under Section 3.01, notify
the Indemnifying Party (or other contributing party) in writing of the claim or
the commencement of such action; provided, however, that the failure to notify
the Indemnifying Party (or other contributing party) shall not relieve it from
any liability which it may have under Section 3.01 except to the extent it has
been materially prejudiced by such failure; and provided further, however, that
the failure to notify the Indemnifying Party shall not relieve it from any
liability which it may have to any Indemnified Party otherwise than under
Section 3.01. In case any such action is brought against any Indemnified Party
and it notifies the Indemnifying Party of the commencement thereof, the
Indemnifying Party shall be entitled to participate therein and, to the extent
that, by written notice delivered to the Indemnified Party promptly after
receiving the aforesaid notice from such Indemnified Party, the Indemnifying
Party elects to assume the defense thereof, it may participate with counsel
reasonably satisfactory to such Indemnified Party; provided, however, that if
the defendants in any such action include both the Indemnified Party and the
Indemnifying Party and the Indemnified Party or parties shall reasonably have
concluded that there may be legal defenses available to it or them and/or other
Indemnified Parties that are different from or additional to those available to
the Indemnifying Party, the Indemnified Party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such Indemnified Party or
parties. Upon receipt of notice from the Indemnifying Party to such Indemnified
Party of its election so to assume the defense of such action and approval by
the Indemnified Party of such counsel, the Indemnifying Party shall not be
liable to such Indemnified Party under this paragraph for any legal or other
expenses subsequently incurred by such Indemnified Party in connection with the
defense thereof, unless (i) the Indemnified Party shall have employed separate
counsel (plus any local counsel) in connection with the assertion of legal
defenses in accordance with the proviso to the immediately preceding sentence,
(ii) the Indemnifying Party shall not have employed counsel reasonably
satisfactory to the Indemnified Party to represent the Indemnified Party within
a reasonable time after notice of commencement of the action or (iii) the
Indemnifying Party shall have authorized the employment of counsel for the
Indemnified Party at the expense of the Indemnifying Party. No party shall be
liable for contribution with respect to any action or claim settled without its
consent, which consent shall not be unreasonably withheld. In no event shall the
Indemnifying Party be liable for the fees and expenses of more than one counsel
representing the Indemnified Parties (in addition to any local counsel) separate
from its own counsel for all Indemnified Parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances.
SECTION 4. GENERAL.
Subsection 4.01 Survival. This Agreement and the obligations of the
parties hereunder shall survive the purchase and sale of the Publicly Offered
Certificates and the Privately Offered Certificates.
Subsection 4.02 Successors. This Agreement shall inure to the
benefit of and be binding upon the parties hereto, each Indemnified Party and
their respective successors and assigns, and no other Person shall have any
right or obligation hereunder.
Subsection 4.03 Applicable Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York without
giving effect to principles of conflict of laws.
Subsection 4.04 Miscellaneous. Neither this Agreement nor any term
hereof may be changed, waived, discharged or terminated except by a writing
signed by the party against which enforcement of such change, waiver, discharge
or termination is sought. This Agreement may be signed in any number of
counterparts, each of which shall be deemed an original, which taken together
shall constitute one and the same instrument.
Subsection 4.05 Notices. All communications hereunder shall be in
writing and shall be deemed to have been duly given when delivered to (a) in the
case of the Depositor, GSMC, the Underwriter[s], or the Initial Purchaser[s], GS
Mortgage Securities Corp., Xxxxxxx Xxxxx Mortgage Company or Xxxxxxx, Xxxxx &
Co., c/o Goldman, Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Principal Finance Group/Xxxxxxxxxxx X. Xxxxxxx, and (b) in the case
of the Indemnifying Party: [______________], [Address], Attention:
[____________].
Subsection 4.06 Submission To Jurisdiction; Waivers. The
Indemnifying Party hereby irrevocably and unconditionally:
(A) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY
JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK, THE FEDERAL COURTS OF THE UNITED STATES OF
AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY
THEREOF;
(B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN
SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY
SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT
COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR
ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET
FORTH HEREIN OR AT SUCH OTHER ADDRESS OF WHICH THE DEPOSITOR SHALL HAVE BEEN
NOTIFIED; AND
(D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT
TO SUE IN ANY OTHER JURISDICTION.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have executed this Agreement by
their duly authorized officers as of the date first above written.
GS MORTGAGE SECURITIES CORP.
By: _____________________________
Name:
Title:
[INDEMNIFYING PARTY]
By: _____________________________
Name:
Title:
EXHIBIT BB
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT, dated May 26,
2006 ("Agreement"), is among Xxxxxxx Xxxxx Mortgage Company ("Assignor"), GS
Mortgage Securities Corp. ("Assignee"), and Meritage Mortgage Corporation (the
"Company").
For and in consideration of good and valuable consideration the
receipt and sufficiency of which hereby are acknowledged, and of the mutual
covenants herein contained, the parties hereto hereby agree as follows:
Assignment, Assumption and Conveyance
-------------------------------------
1. The Assignor hereby conveys, sells, grants, transfers and assigns
to the Assignee all of the right, title and interest (other than those rights
specifically retained by the Assignor pursuant to this Agreement) of the
Assignor, as purchaser, in, to and under (a) those certain mortgage loans listed
on the schedule (the "Mortgage Loan Schedule") attached hereto as Exhibit A (the
"Mortgage Loans"), (b) solely insofar as it relates to the Mortgage Loans, that
certain Amended and Restated Flow Mortgage Loan Purchase and Warranties
Agreement, dated as of November 1, 2005 (the "Purchase Agreement"), between the
Assignor, as purchaser (in such capacity, the "Purchaser"), and the Company, as
seller. The Assignor hereby agrees that it will (i) deliver possession of the
notes evidencing the Mortgage Loans to, or at the direction of, the Assignee or
its designee and (ii) take in a timely manner all necessary steps under all
applicable laws to convey and to perfect the conveyance of the Mortgage Loans as
required under the Pooling Agreement (as defined below).
The Assignor specifically reserves and does not assign to the
Assignee hereunder (i) any and all right, title and interest in, to and under
and any obligations of the Assignor with respect to any mortgage loans subject
to the Purchase Agreement that are not the Mortgage Loans set forth on the
Mortgage Loan Schedule and are not the subject of this Agreement or (ii) the
rights of the Purchaser under Section 13 and Subsection 14.01 of the Purchase
Agreement.
The Assignee hereby assumes all of the Assignor's obligations from
and after the date hereof under the Mortgage Loans and the Purchase Agreement
solely insofar as such obligations relate to the Mortgage Loans. The Assignee
does not assume hereby such obligations of Assignor prior to the date hereof.
Recognition of the Company
--------------------------
2. From and after the date hereof (the "Securitization Closing
Date"), the Company shall and does hereby recognize that the Assignee will
transfer the Mortgage Loans and assign its rights under the Purchase Agreement
(solely to the extent set forth herein) and this Agreement to LaSalle Bank
National Association, as trustee (including its successors in interest and any
successor trustees under the Pooling Agreement (as defined below), the
"Trustee"), of the GSAMP Trust 2006-HE3 (the "Trust") created pursuant to a
Pooling and Servicing Agreement, dated as of May 1, 2006 (the "Pooling
Agreement"), among the Assignee, the Trustee, Xxxxxx Loan Servicing LP, as a
servicer of certain Mortgage Loans ("Xxxxxx"), Select Portfolio Servicing, Inc.,
as a servicer of certain Mortgage Loans ("SPS"), Avelo Mortgage, L.L.C., as a
servicer of certain Mortgage Loans (together with Xxxxxx and SPS, including
their successors in interest and any successor servicers of the Mortgage Loans
under the Pooling Agreement, the "Servicers"), Deutsche Bank National Trust
Company, as a custodian ("Deutsche Bank"), X.X. Xxxxxx Trust Company, National
Association, as a custodian ("X.X. Xxxxxx"), U.S. Bank National Association, as
a custodian (together with Deutsche Bank and X.X. Xxxxxx, including their
successors in interest and any successor custodians of the Mortgage Loans under
the Pooling Agreement, the "Custodians") and Xxxxx Fargo Bank, N.A., as master
servicer (including its successors in interest and any successor master servicer
of the Mortgage Loans under the Pooling Agreement, the "Master Servicer") and as
securities administrator (including its successors in interest and any successor
securities administrator of the Mortgage Loans under the Pooling Agreement, the
"Securities Administrator"). The Company hereby acknowledges and agrees that
from and after the date hereof (i) the Trust will be the owner of the Mortgage
Loans and the Servicers will be the servicers of the Mortgage Loans on or after
the Transfer Date pursuant to the terms set forth in the Pooling Agreement, (ii)
the Company shall look solely to the Trust (including the Trustee, the
Securities Administrator, the Master Servicer and the Servicers acting on the
Trust's behalf) for performance of any obligations of the Assignor under the
Mortgage Loans and the Purchase Agreement (solely insofar as they relate to the
Mortgage Loans), (iii) the Trust (including the Trustee, the Securities
Administrator, the Master Servicer and the Servicers acting on the Trust's
behalf) shall have all the rights and remedies available to the Assignor,
insofar as they relate to the Mortgage Loans, under the Purchase Agreement,
including, without limitation, the enforcement of the document delivery
requirements set forth in Subsection 6.03 of the Purchase Agreement, and shall
be entitled to enforce all of the obligations of the Company thereunder insofar
as they relate to the Mortgage Loans, including without limitation, the remedies
for breaches of representations and warranties set forth in Subsection 9.03 of
the Purchase Agreement, (iv) all references to the Purchaser or the Custodian
under the Purchase Agreement as they relate to the Mortgage Loans shall be
deemed to refer to the Trust (including the Trustee, the Securities
Administrator, the Master Servicer and the Servicers acting on the Trust's
behalf) and (v) the Mortgage Loans will be part of a REMIC, and the Company
shall service the Mortgage Loans and any real property acquired upon default
thereof (including, without limitation, making or permitting any modification,
waiver or amendment of any term of any Mortgage Loan) prior to the applicable
Transfer Date in accordance with the Flow Interim Servicing Agreement, dated as
of November 1, 2005 (the "Servicing Agreement"), by and between the Assignor and
the Company but in no event in a manner that would (A) cause the REMIC to fail
to qualify as a REMIC or (B) result in the imposition of a tax upon the REMIC
(including but not limited to the tax on prohibited transactions as defined in
Section 860F(a)(2) of the Code, the tax on contributions to a REMIC set forth in
Section 860G(d) of the Code, and the tax on "net income from foreclosure
property" as set forth in Section 860G(c) of the Code). Neither the Company nor
the Assignor shall amend or agree to amend, modify, waive, or otherwise alter
any of the terms or provisions of the Purchase Agreement or the Servicing
Agreement which amendment, modification, waiver or other alteration would in any
way affect the Mortgage Loans or the Company's performance under the Purchase
Agreement or the Servicing Agreement with respect to the Mortgage Loans without
the prior written consent of the Trustee.
Representations and Warranties of the Company
---------------------------------------------
3. The Company warrants and represents to and covenants with, the
Assignor, the Assignee and the Trust as of the date hereof that:
(a) The Company is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its formation;
(b) The Company has full power and authority to execute, deliver
and perform its obligations under this Agreement, and has full power and
authority to perform its obligations under this Agreement, the Purchase
Agreement and the Servicing Agreement. The execution by the Company of
this Agreement is in the ordinary course of the Company's business and
will not conflict with, or result in a breach of, any of the terms,
conditions or provisions of the Company's charter or bylaws or any legal
restriction, or any material agreement or instrument to which the Company
is now a party or by which it is bound, or result in the violation of any
law, rule, regulation, order, judgment or decree to which the Company or
its property is subject. The execution, delivery and performance by the
Company of this Agreement have been duly authorized by all necessary
corporate actions on the part of the Company. This Agreement has been duly
executed and delivered by the Company, and, upon the due authorization,
execution and delivery by the Assignor and the Assignee, will constitute
the valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms except as enforceability
may be limited by bankruptcy, reorganization, insolvency, moratorium or
other similar laws now or hereafter in effect relating to creditors'
rights generally, and by general principles of equity regardless of
whether enforceability is considered in a proceeding in equity or at law;
(c) No consent, approval, order or authorization of, or
declaration, filing or registration with, any governmental entity is
required to be obtained or made by the Company in connection with the
execution, delivery or performance by the Company of this Agreement or the
consummation by it of the transaction contemplated hereby;
(d) There is no action, suit, proceeding or investigation pending
or threatened against the Company, before any court, administrative agency
or other tribunal, which would draw into question the validity of this
Agreement, the Purchase Agreement or the Servicing Agreement, or which,
either in any one instance or in the aggregate, is likely to result in any
material adverse change in the ability of the Company to perform its
obligations under this Agreement or the Purchase Agreement or the
Servicing Agreement, and the Company is solvent;
(e) No Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable, and no Mortgage Loan originated on or after October 1, 2002
through March 6, 2003 is governed by the Georgia Fair Lending Act. No
Mortgage Loan is covered by the Home Ownership and Equity Protection Act
of 1994 and no Mortgage Loan is in violation of any comparable state or
local law. The Mortgaged Property is not located in a jurisdiction where a
breach of this representation with respect to the related Mortgage Loan
may result in additional assignee liability to the Purchaser, as
determined by Purchaser in its reasonable discretion. No predatory or
deceptive lending practices, including, without limitation, the extension
of credit without regard to the ability of the Mortgagor to repay and the
extension of credit which has no apparent benefit to the Mortgagor, were
employed in the origination of the Mortgage Loan; and
(f) In connection with the origination of any Mortgage Loan, no
proceeds from any Mortgage Loan were used to finance or acquire a
single-premium credit life insurance policy. No Mortgagor was required to
purchase any single premium credit insurance policy (e.g., life,
disability, accident, unemployment, or health insurance product) or debt
cancellation agreement as a condition of obtaining the extension of
credit. No Mortgagor obtained a prepaid single premium credit insurance
policy (e.g., life, disability, accident, unemployment, mortgage, or
health insurance) in connection with the origination of the Mortgage Loan;
no proceeds from any Mortgage Loan were used to purchase single premium
credit insurance policies or debt cancellation agreements as part of the
origination of, or as a condition to closing, such Mortgage Loan.
4. Pursuant to Section 13 of the Purchase Agreement, the Company
hereby represents and warrants, for the benefit of the Assignor, the Assignee
and the Trust, that the representations and warranties set forth in Subsections
9.01 and 9.02 of the Purchase Agreement are true and correct (with respect to
the representations and warranties set forth in Section 9.01 (o) and in Section
9.02 (a), the first sentence of (c), (d), (e), (f) (except the last sentence of
(f)), (h), (i), (j), (n), (o), (p), (q), (r), (s), the last sentence of (t), (u)
(except the first sentence of (u)), (v), (x), (y), (z), (aa), (cc), (ee), (ff),
(gg), (ii), (jj), (ll), (mm), (nn), (tt), (uu), (vv), (ww), (xx), (yy), (aaa),
(bbb), (eee), (fff), (ggg), (hhh) and (jjj), as of applicable Transfer Date (as
defined in the applicable terms letter)) on the date hereof as if such
representations and warranties were made on the date hereof.
Remedies for Breach of Representations and Warranties of the Company
--------------------------------------------------------------------
5. The Company hereby acknowledges and agrees that the remedies
available to the Assignor, the Assignee and the Trust (including the Trustee,
the Securities Administrator, the Master Servicer and the Servicers acting on
the Trust's behalf) in connection with any breach of the representations and
warranties made by the Company set forth in Sections 3 and 4 hereof shall be as
set forth in Subsection 9.03 of the Purchase Agreement as if they were set forth
herein (including without limitation the repurchase and indemnity obligations
set forth therein, including its obligation to repurchase any Mortgage Loan in
breach of the representations in clauses (g), (i), (vv), (xx), (yy), (zz),
(jjj), (kkk), (lll) and (mmm) of Subsection 9.02 of the Purchase Agreement
within not more than 60 days of such discovery or receipt of notice of such
breach).
6. The Company hereby acknowledges and agrees that the remedies
available to the Assignor, the Assignee and the Trust (including the Trustee,
the Master Servicer, the Securities Administrator and the Servicers acting on
the Trust's behalf) in connection with any breach of the representations and
warranties made by the Company set forth in Sections 3 and 4 hereof shall be as
set forth in Subsection 9.03 of the Purchase Agreement as if they were set forth
herein (including without limitation the repurchase and indemnity obligations
set forth therein).
7. In the event a Mortgage Loan is required to be repurchased
pursuant to Subsection 9.04 of the Purchase Agreement, the Company shall pay to
the Trust the Repurchase Price (as defined in the Purchase Agreement), and the
Company shall pay to the Assignor the amount by which the repurchase price set
forth in Section 5 of the Purchase Price and Terms Agreement, dated as of
September 29, 2005, October 31, 2005 and November 17, 2005, respectively, and in
Section O of the Purchase Price and Terms Agreement, dated as of February 10,
2006, between the Company and the Assignor, exceeds such Repurchase Price.
8. The Company shall indemnify and hold harmless the Assignee, the
Servicers, the Master Servicer, the Securities Administrator and the Trustee and
their respective officers, directors and affiliates from and against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments and other costs and expenses arising out of or based
upon a breach of the Company's obligations under this Section 8, or the
Company's negligence, bad faith, willful misconduct or material misstatements or
omissions in connection therewith. If the indemnification provided for herein is
unavailable or insufficient to hold harmless the indemnified party, then the
Company agrees that it shall contribute to the amount paid or payable by the
Assignee, the Servicers, the Master Servicer, the Securities Administrator
and/or the Trustee (and their respective officers, directors and affiliates) as
a result of the losses, claims, damage or liabilities of the Assignee, the
Servicers, the Master Servicer, the Securities Administrator and/or the Trustee
in such proportion as is appropriate to reflect the relative fault of the
Assignee, the Servicers, the Master Servicer, the Securities Administrator or
the Trustee, as the case may be, on the one hand, and the Company on the other
in connection with a breach of the Company's obligation under this Section 8 or
the Company's negligence, bad faith, willful misconduct or material
misstatements or omissions in connection therewith.
Representations and Warranties of the Assignor
----------------------------------------------
9. The Assignor warrants and represents to the Assignee and the
Trust as of the date hereof that, with respect to each Mortgage Loan:
(a) The Assignor is the sole owner of record and holder of the
Mortgage Loan and the indebtedness evidenced by each Mortgage Note. The
Mortgage Loan is not assigned or pledged, and the Assignor has good,
indefeasible and marketable title thereto, and has full right to transfer
and sell the Mortgage Loan to the Assignee free and clear of any
encumbrance, equity, participation interest, lien, pledge, charge, claim
or security interest, and has full right and authority subject to no
interest or participation of, or agreement with, any other party, to sell
and assign each Mortgage Loan pursuant to this Agreement and following the
sale of each Mortgage Loan, the Assignee will own such Mortgage Loan free
and clear of any encumbrance, equity, participation interest, lien,
pledge, charge, claim or security interest. The Assignor intends to
relinquish all rights to possess, control and monitor the Mortgage Loan;
(b) The Assignor has not waived the performance by the Mortgagor
of any action, if the Mortgagor's failure to perform such action would
cause the Mortgage Loan to be in default, nor has the Company waived any
default resulting from any action or inaction by the Mortgagor;
(c) Any and all requirements of any federal, state or local law
including, without limitation, usury, truth-in-lending, real estate
settlement procedures, consumer credit protection, equal credit
opportunity and disclosure laws applicable to the Mortgage Loans have been
complied with, including, but not limited to, all applicable
anti-predatory and abusive lending laws; and
(d) No Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable. No Mortgage Loan is covered by the Home Ownership and Equity
Protection Act of 1994 and no Mortgage Loan is in violation of any
comparable state or local law. No Mortgage Loan originated on or after
October 1, 2002 through March 6, 2003 is governed by the Georgia Fair
Lending Act.
For the purposes of this Section 9(d) the following definitions shall
apply:
Covered Loan: A Mortgage Loan categorized as Covered pursuant to
Appendix E of Standard & Poor's Glossary.
Home Loan: A Mortgage Loan categorized as Home Loan pursuant to
Appendix E of Standard & Poor's Glossary.
Standard & Poor's Glossary: Version 5.6(d) of the Standard &
Poor's LEVELS(R) Glossary, or such version as may be in effect
from time to time.
High Cost Loan: A Mortgage Loan (a) covered by the Home Ownership
and Equity Protection Act of 1994, (b) a "high cost home,"
"threshold," "covered," (excluding New Jersey "Covered Home
Loans" as that term is defined in clause (1) of the definition of
that term in the New Jersey Home Ownership Security Act of 2002),
"high risk home," "predatory" or similar loan under any other
applicable state, federal or local law (or a similarly classified
loan using different terminology under a law imposing heightened
regulatory scrutiny or additional legal liability for residential
mortgage loans having high interest rates, points and/or fees) or
(c) categorized as High Cost pursuant to Appendix E of Standard &
Poor's Glossary. For avoidance of doubt, the parties agree that
this definition shall apply to any law regardless of whether such
law is presently, or in the future becomes, the subject of
judicial review or litigation.
Remedies for Breach of Representations and Warranties of the Assignor
---------------------------------------------------------------------
10. The Assignor hereby acknowledges and agrees that in the event of
any breach of the representations and warranties made by the Assignor set forth
in Section 9 hereof that materially and adversely affects the value of the
Mortgage Loans or the interest of the Assignee or the Trust therein within 60
days of the earlier of either discovery by or notice to the Assignor of such
breach of a representation or warranty, it shall cure, purchase or cause the
purchase of the applicable Mortgage Loan at the Repurchase Price set forth in
the Pooling Agreement.
Enforcement of Representations and Warranties of the Company
------------------------------------------------------------
11. The Assignor hereby agrees to use its best efforts to enforce
the remedies for a breach of the representations and warranties of the Company
set forth in Section 5 herein.
Miscellaneous
-------------
12. This Agreement shall be construed in accordance with the laws of
the State of New York, without regard to conflicts of law principles, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
13. No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced, with the prior
written consent of the Trustee.
14. This Agreement shall inure to the benefit of (i) the successors
and assigns of the parties hereto and (ii) the Trust (including the Trustee, the
Securities Administrator, the Master Servicer, and the Servicer acting on the
Trust's behalf). Any entity into which the Assignor, Assignee or Company may be
merged or consolidated shall, without the requirement for any further writing,
be deemed Assignor, Assignee or Company, respectively, hereunder.
15. Each of this Agreement, the Purchase Agreement and the Servicing
Agreement shall survive the conveyance of the Mortgage Loans and the assignment
of the Purchase Agreement and the Servicing Agreement (to the extent assigned
hereunder) by the Assignor to the Assignee and by the Assignee to the Trust and,
except as expressly set forth herein, nothing contained herein shall supersede
or amend the terms of the Purchase Agreement and the Servicing Agreement.
16. This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original and all such
counterparts shall constitute one and the same instrument.
17. In the event that any provision of this Agreement conflicts with
any provision of any of the Purchase Agreement or the Servicing Agreement with
respect to the Mortgage Loans, the terms of this Agreement shall control.
18. Capitalized terms used in this Agreement (including the exhibits
hereto) but not defined in this Agreement shall have the meanings given to such
terms in the Purchase Agreement or the Servicing Agreement, as applicable.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
GS MORTGAGE SECURITIES CORP.
By: /s/ Xxxxxxxx Xxxx
-----------------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
XXXXXXX XXXXX MORTGAGE COMPANY,
a New York limited partnership
By: XXXXXXX XXXXX REAL ESTATE
FUNDING CORP.,
a New York corporation, as
general partner
By: /s/ Xxxxx Xxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
MERITAGE MORTGAGE CORPORATION
By: /s/ Xxxx X. Xxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Officer
EXHIBIT A TO ASSIGNMENT AND RECOGNITION AGREEMENT
-------------------------------------------------
Mortgage Loan Schedule
================================================================================
AMENDED AND RESTATED
FLOW MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT
------------------------------
XXXXXXX XXXXX MORTGAGE COMPANY
Purchaser
MERITAGE MORTGAGE CORPORATION
Seller
------------------------------
Dated as of November 1, 2005
Conventional,
Fixed and Adjustable Rate Residential Mortgage Loans
================================================================================
TABLE OF CONTENTS
SECTION 1. DEFINITIONS......................................................
SECTION 2. AGREEMENT TO PURCHASE............................................
SECTION 3. MORTGAGE SCHEDULES................................................
SECTION 4. PURCHASE PRICE....................................................
SECTION 5. EXAMINATION OF MORTGAGE FILES.....................................
SECTION 6. CONVEYANCE FROM SELLER TO PURCHASER...............................
Subsection 6.01 Conveyance of Mortgage Loans...............................
Subsection 6.02 Books and Records..........................................
Subsection 6.03 Delivery of Mortgage Loan Documents........................
Subsection 6.04 Quality Control Procedures.................................
SECTION 7. SERVICING OF THE MORTGAGE LOANS...................................
SECTION 8. TRANSFER OF SERVICING.............................................
SECTION 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLER; REMEDIES
FOR BREACH........................................................
Subsection 9.01 Representations and Warranties Regarding the Seller........
Subsection 9.02 Representations and Warranties Regarding Individual
Mortgage Loans.............................................
Subsection 9.03 Remedies for Breach of Representations and Warranties......
Subsection 9.04 Repurchase of Mortgage Loans With Early Payment Defaults...
Subsection 9.05 Purchaser's Right to Review................................
Subsection 9.06 Prepayments in Full........................................
SECTION 10. CLOSING...........................................................
SECTION 11. CLOSING DOCUMENTS.................................................
SECTION 12. COSTS.............................................................
SECTION 13. COOPERATION OF SELLER WITH A RECONSTITUTION.......................
SECTION 14. THE SELLER........................................................
Subsection 14.01 Additional Indemnification by the Seller;
Third Party Claims.........................................
Subsection 14.02 Merger or Consolidation of the Seller......................
SECTION 15. FINANCIAL STATEMENTS..............................................
SECTION 16. MANDATORY DELIVERY................................................
SECTION 17. NOTICES...........................................................
SECTION 18. SEVERABILITY CLAUSE...............................................
SECTION 19. COUNTERPARTS......................................................
SECTION 20. GOVERNING LAW.....................................................
SECTION 21. INTENTION OF THE PARTIES..........................................
SECTION 22. SUCCESSORS AND ASSIGNS; ASSIGNMENT OF PURCHASE AGREEMENT..........
SECTION 23. WAIVERS...........................................................
SECTION 24. EXHIBITS..........................................................
SECTION 25. GENERAL INTERPRETIVE PRINCIPLES...................................
SECTION 26. REPRODUCTION OF DOCUMENTS.........................................
SECTION 27. FURTHER AGREEMENTS................................................
SECTION 28. RECORDATION OF ASSIGNMENTS OF MORTGAGE............................
SECTION 29. NO SOLICITATION...................................................
SECTION 30. WAIVER OF TRIAL BY JURY...........................................
SECTION 31. SUBMISSION TO JURISDICTION; WAIVERS...............................
SECTION 32. CONFIDENTIAL INFORMATION..........................................
SECTION 33. COMPLIANCE WITH REGULATION AB.....................................
Subsection 33.01 Intent of the Parties; Reasonableness......................
Subsection 33.02 Additional Representations and Warranties of the Seller....
Subsection 33.03 Information To Be Provided by the Seller...................
Subsection 33.04 Indemnification............................................
EXHIBITS
EXHIBIT A CONTENTS OF EACH MORTGAGE FILE
EXHIBIT B CONTENTS OF EACH CREDIT FILE
EXHIBIT C FORM OF SELLER'S OFFICER'S CERTIFICATE
EXHIBIT D FORM OF OPINION OF COUNSEL TO THE SELLER
EXHIBIT E FORM OF SECURITY RELEASE CERTIFICATION
EXHIBIT F FORM OF SECURITY RELEASE CERTIFICATION
EXHIBIT G FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT H [INTENTIONALLY OMITTED]
EXHIBIT I REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE POOL
CHARACTERISTICS OF THE MORTGAGE LOANS
EXHIBIT J ORIGINATOR'S UNDERWRITING GUIDELINES
EXHIBIT K MORTGAGE LOAN SCHEDULE
EXHIBIT L FORM OF SERVICER ACKNOWLEDGMENT
EXHIBIT M [INTENTIONALLY OMITTED]
EXHIBIT N FORM OF ASSIGNMENT AND CONVEYANCE
EXHIBIT O FORM OF INDEMNIFICATION AGREEMENT
AMENDED AND RESTATED
--------------------
FLOW MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT
----------------------------------------------------
This AMENDED AND RESTATED FLOW MORTGAGE LOAN PURCHASE AND WARRANTIES
AGREEMENT (the "Agreement"), dated as of November 1, 2005, by and between
Xxxxxxx Xxxxx Mortgage Company, a New York limited partnership, having an office
at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Purchaser") and Meritage
Mortgage Corporation, an Oregon corporation, having an office at 0000 XX Xxxxxx
Xxxxx, Xxxxxxxxx, XX 00000 (the "Seller").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Seller and the Purchaser are parties to that certain
Flow Mortgage Loan Purchase and Warranties Agreement, dated as of July 1, 2005
(the "Original Purchase Agreement"), and, from time to time, the Seller desires
to sell to the Purchaser and, from time to time, the Purchaser desires to
purchase from the Seller, certain conventional adjustable and fixed rate
residential first and second lien mortgage loans (the "Mortgage Loans") on a
servicing released basis as described herein, and which shall be delivered as a
pool of whole loans; and
WHEREAS, the Purchaser and the Seller wish to amend the Original
Purchase Agreement as set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Purchaser and the
Seller agree as follows:
SECTION 1. Definitions.
For purposes of this Agreement the following capitalized terms shall
have the respective meanings set forth below.
Accepted Servicing Practices: With respect to any Mortgage Loan
those mortgage servicing practices of prudent mortgage lending institutions
which service mortgage loans of the same type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located and incorporating
the Delinquency Collection Policies and Procedures.
Act: The National Housing Act, as amended from time to time.
Actual Principal Balance: As to each Mortgage Loan, (i) the
principal balance of the Mortgage after application of payments of principal
actually received at the related Cut-off Date, minus (ii) all amounts previously
distributed to the Purchaser with respect to the related Mortgage Loan
representing principal payments.
Adjustable Rate Mortgage Loan: An adjustable rate Mortgage Loan
purchased pursuant to this Agreement.
Affiliate: With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Agency Transfer: A Xxxxxx Xxx Transfer or a Freddie Mac Transfer.
Agreement: This Amended and Restated Flow Mortgage Loan Purchase and
Warranties Agreement and all amendments hereof and supplements hereto.
ALTA: The American Land Title Association, or any successor thereto.
Appraised Value: The value set forth in an appraisal made in
connection with the origination of the related Mortgage Loan as the value of the
Mortgaged Property.
Assignment and Assumption Agreement: As defined in Section 22.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
the sale of the Mortgage to the Purchaser.
BIF: The Bank Insurance Fund, or any successor thereto.
Business Day: Any day other than (i) a Saturday or Sunday, (ii) a
day on which banking and savings and loan institutions in (a) the State of New
York, (b) the state in which the Seller's servicing operations are located or
(c) or (iii) the State in which the Custodian's operations are located, are
authorized or obligated by law or executive order to be closed.
Closing Date: The date or dates set forth on the related Purchase
Price and Terms Agreement on which the Purchaser from time to time shall
purchase and the Seller from time to time shall sell, the Mortgage Loans listed
on the related Mortgage Loan Schedule
CLTV: As of the date of origination and as to any Second Lien
Mortgage Loan, the ratio, expressed as a percentage, of the (a) sum of (i) the
outstanding principal balance of the Second Lien Mortgage Loan as of the date of
origination and (ii) the outstanding principal balance as of the date of
origination of any mortgage loan or mortgage loans that are senior or equal in
priority to the Second Lien Mortgage Loan and which are secured by the same
Mortgaged Property to (b) the lesser of the Appraised Value and the purchase
price of the Mortgaged Property.
Code: Internal Revenue Code of 1986, as amended.
Commission: The United States Securities and Exchange Commission.
Condemnation Proceeds: All awards or settlements in respect of a
Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan Documents.
Convertible Mortgage Loan: Any individual Adjustable Rate Mortgage
Loan purchased pursuant to this Agreement which contains a provision whereby the
Mortgagor is permitted to convert the Adjustable Rate Mortgage Loan to a fixed
rate Mortgage Loan in accordance with the terms of the related Mortgage Note.
Credit File: The items pertaining to a particular Mortgage Loan
referred to in Exhibit B annexed hereto, and any additional documents required
to be added to the credit File pursuant to this Agreement.
Custodial Account: The separate account or accounts created and
maintained pursuant to the Interim Servicing Agreement (with respect to each
Mortgage Loan, for an interim period, as specified therein).
Custodial Agreement: The agreement between the Purchaser and the
Custodian governing the retention of the originals of each Mortgage Note,
Mortgage, Assignment of Mortgage and other documents constituting the Mortgage
Files.
Custodian: The custodian set forth in the related Purchase Price and
Terms Agreement, or its successors in interest or permitted assigns, or any
successor to the Custodian under the Custodial Agreement as therein provided.
Cut-off Date: With respect to each Mortgage Loan in a Mortgage Loan
Package, the date set forth on the related Purchase Price and Terms Agreement.
Deleted Mortgage Loan: A Mortgage Loan that is repurchased by the
Seller in accordance with the terms of this Agreement.
Depositor: The depositor, as such term is defined in Regulation AB,
with respect to any Securitization Transaction.
Due Date: The day of the month on which the Monthly Payment is due
on a Mortgage Loan, exclusive of any days of grace.
Equity Take-Out Refinanced Mortgage Loan: A Mortgage Loan used to
refinance an existing mortgage loan, the proceeds of which were in excess of the
outstanding principal balance of the existing mortgage loan.
Escrow Account: The separate account or accounts created and
maintained pursuant to the Interim Servicing Agreement (with respect to each
Mortgage Loan, for an interim period, as specified therein).
Escrowed Mortgage Loans: Mortgage Loans for which Escrow Payments
are required to be made pursuant to the related Mortgage Loan Documents.
Escrow Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed by
the Mortgagor with the mortgagee pursuant to the Mortgage or any other document.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Xxxxxx Xxx: The Federal National Mortgage Association, or any
successor thereto.
Xxxxxx Xxx Guides: The Xxxxxx Xxx Selling Guide and the Xxxxxx Xxx
Servicing Guide and all amendments or additions thereto.
Xxxxxx Xxx Transfer: As defined in Section 13 hereof.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHA: The Federal Housing Administration, an agency within the United
States Department of Housing and Urban Development, or any successor thereto and
including the Federal Housing Commissioner and the Secretary of Housing and
Urban Development where appropriate under the FHA Regulations.
FICO: Fair Xxxxx Corporation, or any successor thereto.
Fitch: Fitch Ratings, or its successor in interest.
Fixed Rate Mortgage Loan: A fixed rate mortgage loan purchased
pursuant to this Agreement.
Freddie Mac: The Federal Home Loan Mortgage Corporation, or any
successor thereto.
Freddie Mac Transfer: As defined in Section 13 hereof.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan,
the fixed percentage amount set forth in the related Mortgage Note which amount
is added to the Index in accordance with the terms of the related Mortgage Note
to determine on each Interest Rate Adjustment Date the Mortgage Interest Rate
for such Mortgage Loan.
High Cost Loan: A Mortgage Loan (a) covered by the Home Ownership
and Equity Protection Act of 1994, (b) classified as a "high cost home,"
"threshold," "covered," "high risk home," "predatory" or similar loan under any
other applicable state, federal or local law (or a similarly classified loan
using different terminology under a law imposing heightened regulatory scrutiny
or additional legal liability for residential mortgage loans having high
interest rates, points and/or fees) or (c) categorized as High Cost pursuant to
Appendix E of Standard & Poor's Glossary. For avoidance of doubt, the parties
agree that this definition shall apply to any law regardless of whether such law
is presently, or in the future becomes, the subject of judicial review or
litigation.
Home Loan: A Mortgage Loan categorized as Home Loan pursuant to
Appendix E of Standard & Poor's Glossary.
HUD: The Department of Housing and Urban Development, or any federal
agency or official thereof which may from time to time succeed to the functions
thereof with regard to FHA Mortgage Insurance. The term "HUD," for purposes of
this Agreement, is also deemed to include subdivisions thereof such as the FHA
and Government National Mortgage Association.
Index: With respect to each Adjustable Rate Mortgage Loan, a rate
per annum set forth on Exhibit I hereto.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property.
Interest Rate Adjustment Date: With respect to each adjustable rate
Mortgage Loan, the date, specified in the related Mortgage Note and the related
Mortgage Loan Schedule, on which the Mortgage Interest Rate is adjusted.
Interim Funder: With respect to each MERS Designated Mortgage Loan,
the Person named on the MERS(R) System as the interim funder pursuant to the
MERS Procedures Manual.
Interim Servicing Agreement: That certain Flow Interim Servicing
Agreement, dated as of the date hereof, by and between the Purchaser and the
Seller.
Investor: With respect to each MERS Designated Mortgage Loan, the
Person named on the MERS(R) System as the investor pursuant to the MERS
Procedures Manual.
Lifetime Rate Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute maximum Mortgage
Interest Rate thereunder. The Mortgage Interest Rate during the terms of each
Adjustable Rate Mortgage Loan shall not at any time exceed the Mortgage Interest
Rate at the time of origination of such Adjustable Rate Mortgage Loan by more
than the amount per annum set forth on the related Mortgage Loan Schedule.
Limited Documentation Program: The guidelines under which the Seller
generally originates Mortgage Loans principally on the basis of the
Loan-to-Value Ratio of the related Mortgage Loan and the creditworthiness of the
Mortgagor.
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or assignment
of such Mortgage Loan, trustee's sale, foreclosure sale or otherwise or the sale
of the related Mortgaged Property if the Mortgaged Property is acquired in
satisfaction of the Mortgage Loan.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan, the
ratio (expressed as a percentage) of the outstanding principal amount of the
Mortgage Loan as of the related Cut-off Date (unless otherwise indicated), to
the lesser of (a) the Appraised Value of the Mortgaged Property at origination
and (b) if the Mortgage Loan was made to finance the acquisition of the related
Mortgaged Property, the purchase price of the Mortgaged Property.
MERS: MERSCORP, Inc., its successors and assigns.
MERS Designated Mortgage Loan: Mortgage Loans for which (a) the
Seller has designated or will designate MERS as, and has taken or will take such
action as is necessary to cause MERS to be, the mortgagee of record, as nominee
for the Seller, in accordance with MERS Procedure Manual and (b) the Seller has
designated or will designate the Custodian as the Investor on the MERS(R)
System.
MERS Procedure Manual: The MERS Procedures Manual, as it may be
amended, supplemented or otherwise modified from time to time.
MERS Report: The report from the MERS(R) System listing MERS
Designated Mortgage Loans and other information.
MERS(R) System: MERS mortgage electronic registry system, as more
particularly described in the MERS Procedures Manual.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Moody's: Xxxxx'x Investors Service, Inc., and any successor thereto.
Mortgage: The mortgage, deed of trust or other instrument securing a
Mortgage Note, which creates a first or second lien on an unsubordinated estate
in fee simple in real property securing the Mortgage Note; except that with
respect to real property located in jurisdictions in which the use of leasehold
estates for residential properties is a widely-accepted practice, the mortgage,
deed of trust or other instrument securing the Mortgage Note may secure and
create a first or second lien upon a leasehold estate of the Mortgagor.
Mortgage File: The items pertaining to a particular Mortgage Loan
referred to in Exhibit A annexed hereto, and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: The annual rate of interest borne on a
Mortgage Note with respect to each Mortgage Loan.
Mortgage Interest Rate Cap: With respect to an Adjustable Rate
Mortgage Loan, the limit on each Mortgage Interest Rate adjustment as set forth
in the related Mortgage Note.
Mortgage Loan: An individual Mortgage Loan which is the subject of
this Agreement, each Mortgage Loan originally sold and subject to this Agreement
being identified on the related Mortgage Loan Schedule, which Mortgage Loan
includes without limitation the Mortgage File, the Credit File, the Servicing
File, the Monthly Payments, Principal Prepayments, Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds, Servicing Rights, Prepayment
Penalties, and all other rights, benefits, proceeds and obligations arising from
or in connection with such Mortgage Loan, excluding replaced or repurchased
mortgage loans.
Mortgage Loan Documents: The documents in the Mortgage File.
Mortgage Loan Package: A pool of Mortgage Loans sold to the
Purchaser by the Seller on a Closing Date.
Mortgage Loan Schedule: The schedule of Mortgage Loans with respect
to each Mortgage Loan Package, attached as Exhibit A to the related Assignment
and Conveyance, setting forth the following information with respect to each
Mortgage Loan in the related Mortgage Loan Package: (1) the Seller's Mortgage
Loan identifying number; (2) the Mortgagor's name; (3) the street address of the
Mortgaged Property including the city, state and zip code; (4) a code indicating
whether the Mortgaged Property is owner-occupied, a second home or investment
property; (5) the number and type of residential units constituting the
Mortgaged Property (i.e. a single family residence, a 2-4 family residence, a
unit in a condominium project or a unit in a planned unit development,
manufactured housing); (6) the original months to maturity or the remaining
months to maturity from the related Cut-off Date, in any case based on the
original amortization schedule and, if different, the maturity expressed in the
same manner but based on the actual amortization schedule; (7) the LTV and CLTV,
each at the origination; (8) the Mortgage Interest Rate as of the related
Cut-off Date; (9) the date on which the Monthly Payment was due on the Mortgage
Loan and, if such date is not consistent with the Due Date currently in effect,
such Due Date; (10) the stated maturity date; (11) the amount of the Monthly
Payment as of the related Cut-off Date; (12) the last payment date on which a
Monthly Payment was actually applied to pay interest and the outstanding
principal balance; (13) the original principal amount of the Mortgage Loan; (14)
the principal balance of the Mortgage Loan as of the close of business on the
related Cut-off Date, after deduction of payments of principal collected on or
before the related Cut-off Date; (15) with respect to Adjustable Rate Mortgage
Loans, the Interest Rate Adjustment Date; (16) with respect to Adjustable Rate
Mortgage Loans, the Gross Margin; (17) with respect to Adjustable Rate Mortgage
Loans, the Lifetime Rate Cap under the terms of the Mortgage Note; (18) with
respect to Adjustable Rate Mortgage Loans, a code indicating the type of Index;
(19) with respect to Adjustable Rate Mortgage Loans, the Periodic Rate Cap under
the terms of the Mortgage Note; (20) with respect to Adjustable Rate Mortgage
Loans, the Periodic Rate Floor under the terms of the Mortgage Note; (21) the
type of Mortgage Loan (i.e., Fixed Rate, Adjustable Rate, First Lien, Second
Lien); (22) a code indicating the purpose of the loan (i.e., purchase, rate and
term refinance, equity take-out refinance); (23) a code indicating the
documentation style (i.e. full, alternative or reduced); (24) the loan credit
classification (as described in the Underwriting Guidelines); (25) whether such
Mortgage Loan provides for a Prepayment Penalty; (26) the Prepayment Penalty
period of such Mortgage Loan, if applicable; (27) a description of the
Prepayment Penalty, if applicable; (28) the Mortgage Interest Rate as of
origination; (29) the credit risk score (FICO score) at origination; (30) the
date of origination; (31) the Mortgage Interest Rate adjustment period; (32) the
Mortgage Interest Rate adjustment percentage; (33) the Mortgage Interest Rate
floor; (34) the Mortgage Interest Rate calculation method (i.e., 30/360, simple
interest, other); (35) a code indicating whether the Mortgage Loan is a Section
32 Mortgage Loan; (36) a code indicating whether the Mortgage Loan is assumable;
(37) a code indicating whether the Mortgage Loan has been modified; (38) the
one-year payment history; (39) the Due Date for the first Monthly Payment; (40)
the original Monthly Payment due; (41) with respect to the related Mortgagor,
the debt-to-income ratio at the time of underwriting the Mortgage Loans; (42)
the Appraised Value of the Mortgaged Property; (44) the sales price of the
Mortgaged Property if the Mortgage Loan was originated in connection with the
purchase of the Mortgaged Property and (45) a code indicating if the Mortgage
Loan is a High Cost Loan or Home Loan as such terms are defined in the then
current Standard & Poor's Glossary. With respect to the Mortgage Loans in the
aggregate, the Mortgage Loan Schedule shall set forth the following information,
as of the related Cut-off Date: (1) the number of Mortgage Loans; (2) the
current aggregate outstanding principal balance of the Mortgage Loans; (3) the
weighted average Mortgage Interest Rate of the Mortgage Loans; and (4) the
weighted average maturity of the Mortgage Loans.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgaged Property: The real property (or leasehold estate, if
applicable) securing repayment of the debt evidenced by a Mortgage Note.
Mortgagor: The obligor on a Mortgage Note.
Non-Servicing Related Representations and Warranties: Those
representations and warranties set forth in Subsections 9.01 and 9.02 other than
the representations set forth in the definition of Servicing Related
Representations and Warranties.
Officer's Certificate: A certificate signed by the Chairman of the
Board or the Vice Chairman of the Board or a President or a Vice President or
any Officer and by the Treasurer or the Secretary or one of the Assistant
Treasurers or Assistant Secretaries of the Seller, and delivered to the
Purchaser as required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be
counsel for the Seller, reasonably acceptable to the Purchaser, provided that
any Opinion of Counsel relating to (a) the qualification of any account required
to be maintained pursuant to this Agreement as an Eligible Account, (b)
qualification of the Mortgage Loans in a REMIC or (c) compliance with the REMIC
Provisions, must be (unless otherwise stated in such Opinion of Counsel) an
opinion of counsel who (i) is in fact independent of the Seller and any master
servicer of the Mortgage Loans, (ii) does not have any material direct or
indirect financial interest in the Seller or any master servicer of the Mortgage
Loans or in an Affiliate of either and (iii) is not connected with the Seller or
any master servicer of the Mortgage Loans as an officer, employee, director or
person performing similar functions.
OTS: Office of Thrift Supervision, and any successor thereto.
Periodic Rate Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute maximum amount by
which the Mortgage Interest Rate therein may increase or decrease on an Interest
Rate Adjustment Date above or below the Mortgage Interest Rate previously in
effect. The Periodic Rate Cap for each Adjustable Rate Mortgage Loan is the rate
set forth on the Mortgage Loan Schedule.
Person: Any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization, government or any agency or political subdivision thereof.
Preliminary Mortgage Schedule: As defined in Section 3.
Prepayment Penalty: With respect to each Mortgage Loan, the fee, if
any, payable upon the prepayment, in whole or in part, of such Mortgage Loan, as
set forth in the related Mortgage Note.
Prime Rate: The prime rate announced to be in effect from time to
time, as published as the average rate in The Wall Street Journal (Northeast
edition).
Principal Prepayment: Any payment or other recovery of principal on
a Mortgage Loan which is received in advance of its scheduled Due Date,
including any Prepayment Penalty or premium thereon and which is not accompanied
by an amount of interest representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment.
Purchase Price: The price paid on the related Closing Date by the
Purchaser to the Seller in exchange for the Mortgage Loans in a Mortgage Loan
Package as calculated in Section 4 of this Agreement.
Purchase Price and Terms Agreement: With respect to each purchase
of a Mortgage Loan Package hereunder, that certain letter agreement setting
forth the general terms and conditions of such transaction consummated herein
and identifying the Mortgage Loans to be purchased hereunder, by and between the
Seller and the Purchaser.
Purchaser: Xxxxxxx Xxxxx Mortgage Company, a New York limited
partnership, and its successors in interest and assigns, and any successor to
the Purchaser under this Agreement as herein provided.
Qualified Appraiser: An appraiser, acceptable to the originator, who
had no interest, direct or indirect in the Mortgaged Property or in any loan
made on the security thereof, and whose compensation is not affected by the
approval or disapproval of the Mortgage Loan, and such appraiser and the
appraisal made by such appraiser both satisfy the requirements of Title XI of
the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 and the
regulations promulgated thereunder, all as in effect on the date the Mortgage
Loan was originated.
Qualified Correspondent: Any Person from which the Seller purchased
Mortgage Loans, provided that the following conditions are satisfied: (i) such
Mortgage Loans were originated pursuant to an agreement between the Seller and
such Person that contemplated that such Person would underwrite mortgage loans
from time to time, for sale to the Seller, in accordance with underwriting
guidelines designated by the Seller ("Designated Guidelines") or guidelines that
do not vary materially from such Designated Guidelines; (ii) such Mortgage Loans
were in fact underwritten as described in clause (i) above and were acquired by
the Seller within 180 days after origination; (iii) either (x) the Designated
Guidelines were, at the time such Mortgage Loans were originated, used by the
Seller in origination of mortgage loans of the same type as the Mortgage Loans
for the Seller's own account or (y) the Designated Guidelines were, at the time
such Mortgage Loans were underwritten, designated by the Seller on a consistent
basis for use by lenders in originating mortgage loans to be purchased by the
Seller and (iv) the Seller employed, at the time such Mortgage Loans were
acquired by the Seller, pre-purchase or post-purchase quality assurance
procedures (which may involve, among other things, review of a sample of
mortgage loans purchased during a particular time period or through particular
channels) designed to ensure that Persons from which it purchased mortgage loans
properly applied the underwriting criteria designated by the Seller.
Rating Agency: Any of Fitch, Moody's or Standard & Poor's, or their
respective successors designated by the Purchaser.
Reconstitution: Any Securitization Transaction, Agency Transfer or
Whole Loan Transfer.
Reconstitution Agreements: The agreement or agreements entered into
by the Seller and the Purchaser and/or certain third parties on the
Reconstitution Date or Dates with respect to any or all of the Mortgage Loans
sold hereunder, in connection with a Whole Loan Transfer, Agency Transfer or a
Securitization Transaction pursuant to Section 13, including, but not limited
to, a seller's warranties and servicing agreement with respect to a Whole Loan
Transfer, and a pooling and servicing agreement and/or seller/servicer
agreements and related custodial/trust agreement and documents with respect to a
Securitization Transaction.
Reconstitution Date: As defined in Section 13.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. xx.xx. 229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or
by the staff of the Commission, or as may be provided by the Commission or its
staff from time to time.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating
to a REMIC, which appear at Section 860A through 860G of Subchapter M of Chapter
1, Subtitle A of the Code, and related provisions and regulations, rulings or
pronouncements promulgated thereunder, as the foregoing may be in effect from
time to time.
Remittance Date: The date specified in the Interim Servicing
Agreement (with respect to each Mortgage Loan, as specified therein).
Repurchase Price: With respect to any Mortgage Loan for which a
breach of a representation or warranty under this Agreement is found, a price
equal to the outstanding principal balance of the Mortgage Loan to be
repurchased as of the date of repurchase, plus accrued interest thereon at the
Mortgage Interest Rate from the date on which interest had last been paid
through the date of such repurchase, plus the amount of any outstanding advances
owed to any servicer, plus all reasonable out-of-pocket costs and expenses
incurred by the Purchaser or any servicer arising out of or based upon such
breach, including without limitation costs and expenses incurred in the
enforcement of the Seller's repurchase obligation hereunder plus any costs and
damages incurred by the related trust with respect to any securitization of the
Mortgage Loan in connection with any violation by such Mortgage Loan of any
predatory- or abusive-lending law.
RESPA: Real Estate Settlement Procedures Act, as amended from time
to time.
Second Lien Mortgage Loan: A Mortgage Loan secured by a second lien
Mortgage on the related Mortgaged Property.
Securities Act: The Securities Act of 1933, as amended.
Securitization Transaction: Any transaction involving either (1) a
sale or other transfer of some or all of the Mortgage Loans directly or
indirectly to an issuing entity in connection with an issuance of publicly
offered or privately placed, rated or unrated mortgage-backed securities or (2)
an issuance of publicly offered or privately placed, rated or unrated
securities, the payments on which are determined primarily by reference to one
or more portfolios of residential mortgage loans consisting, in whole or in
part, of some or all of the Mortgage Loans.
Seller: Meritage Mortgage Corporation, its successors in interest
and assigns.
Seller Information: As defined in Subsection 33.04(a).
Servicing Fee: With respect to each Mortgage Loan, $35 per calendar
month, payable monthly, in arrears. Such fee shall be payable monthly for each
month or portion of a month and shall be pro-rated for any portion of a month
during which the Mortgage Loan is serviced by the Interim Servicer under the
Interim Servicing Agreement.
Servicing Fee Rate: An amount per annum as set forth in the Interim
Servicing Agreement.
Servicing File: With respect to each Mortgage Loan, the file
retained by the Seller consisting of originals of all documents in the Mortgage
File which are not delivered to the Purchaser or the Custodian and copies of the
Mortgage Loan Documents set forth in as provided in Subsection 6.03 hereof.
Servicing Related Representations and Warranties: Those
representations and warranties set forth in Subsection 9.01(o) (as of the
related Closing Date), Subsection 9.02(a), the first sentence of (c), (d), (e),
(f) (except the last sentence of (f)), (h), (i), (j), (n), (o), (p), (q), (r),
(s), the last sentence of (t), (u) (except the first sentence of (u)), (v), (x),
(y), (z), (aa), (cc), (ee), (ff), (gg), (ii), (jj), (ll), (mm), (nn), (tt),
(uu), (vv), (ww), (xx), (yy), (aaa), (bbb), (eee), (fff), (ggg), (hhh) and
(jjj).
Servicing Rights: Any and all of the following: (a) any and all
rights to service the Mortgage Loans; (b) any payments to or monies received by
the Seller for servicing the Mortgage Loans; (c) any late fees, penalties or
similar payments with respect to the Mortgage Loans but not including any
Prepayment Penalties; (d) all agreements or documents creating, defining or
evidencing any such servicing rights to the extent they relate to such servicing
rights and all rights of the Seller thereunder; (e) Escrow Payments or other
similar payments with respect to the Mortgage Loans and any amounts actually
collected by the Seller with respect thereto; (f) all accounts and other rights
to payment related to any of the property described in this paragraph; and (g)
any and all documents, files, records, servicing files, servicing documents,
servicing records, data tapes, computer records, or other information pertaining
to the Mortgage Loans or pertaining to the past, present or prospective
servicing of the Mortgage Loans.
Standard & Poor's: Standard & Poor's Rating Services, a division of
The XxXxxx-Xxxx Companies Inc., and its successors in interest.
Standard & Poor's Glossary: The Standard & Poor's LEVELS(R)
Glossary, as may be in effect from time to time.
Static Pool Information: Static pool information as described in
Item 1105(a)(1)-(3) and 1105(c) of Regulation AB.
Successor Servicer: A servicer designated by the Purchaser pursuant
to Section 8 and Subsection 9.03 which is entitled to the benefits of the
indemnifications set forth in Subsections 9.03 and 14.01.
Third-Party Originator: Each Person, other than a Qualified
Correspondent, that originated Mortgage Loans acquired by the Seller.
Transfer Date: With respect to each Mortgage Loan, (a) the date set
forth in the related Purchase Price and Terms Agreement or (b) such other date
as mutually agreed by the Seller and the Purchaser.
Underwriting Guidelines: The underwriting guidelines of the Seller,
a copy of which is attached hereto as Exhibit J.
Whole Loan Agreement: Any Reconstitution Agreement in respect of a
Whole Loan Transfer.
Whole Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans, other than a Securitization Transaction.
SECTION 2. Agreement to Purchase.
The Seller, on each related Closing Date, agrees to sell, and the
Purchaser agrees to purchase, Mortgage Loans having an aggregate principal
balance on the related Cut-off Date in an amount as set forth in the related
Purchase Price and Terms Agreement, or in such other amount as agreed by the
Purchaser and the Seller as evidenced by the aggregate Actual Principal Balance
of the Mortgage Loans accepted by the Purchaser on the related Closing Date.
SECTION 3. Mortgage Schedules.
The Seller shall provide the Purchaser with certain information
constituting a preliminary listing of the Mortgage Loans in the Mortgage Loan
Package to be purchased on a Closing Date in accordance with the related
Purchase Price and Terms Agreement and this Agreement (a "Preliminary Mortgage
Schedule").
On the date which is two (2) days prior to the related Closing Date
(the "Schedule Delivery Date"), the Seller shall deliver to the Purchaser a
schedule of the Mortgage Loans to be purchased by the Purchaser on the related
Closing Date (the "Mortgage Loan Schedule") which shall be the Preliminary
Mortgage Schedule excluding (a) any mortgage loans which have prepaid in full
during the period from the related Cut-off Date to the related Schedule Delivery
Date ("Prepaid Mortgage Loans") and (b) those Mortgage Loans which have not been
funded prior to the related Closing Date. The Purchaser shall have no obligation
to purchase such Prepaid Mortgage Loans.
SECTION 4. Purchase Price.
The Purchase Price for each Mortgage Loan in a Mortgage Loan Package
shall be the percentage of par as stated in the related Purchase Price and Terms
Agreement (subject to adjustment as provided therein), multiplied by the
aggregate Actual Principal Balance, as of the related Cut-off Date, of the
Mortgage Loans listed on the related Closing Schedule, after application of
payments actually received on or before the related Cut-off Date.
The initial principal amount of the Mortgage Loans shall be the
aggregate Actual Principal Balance of the Mortgage Loans, so computed as of the
related Cut-off Date as set forth on the related Mortgage Loan Schedule. If so
provided in the related Purchase Price and Terms Agreement, portions of the
Mortgage Loans shall be priced separately.
In addition to the Purchase Price as described above, the Purchaser
shall pay to the Seller, on the related Closing Date, accrued interest on the
current principal amount of the Mortgage Loans in the related Mortgage Loan
Package as of the related Cut-off Date at the Mortgage Interest Rate of those
Mortgage Loans from the date through which interest on the Mortgage Loan has
been paid (the "Paid-through Date") through the day prior to the related Closing
Date, inclusive. The Purchase Price for the related Mortgage Loan Package plus
accrued interest as set forth in the preceding paragraph shall be paid to the
Seller by wire transfer of immediately available funds to an account designated
by the Seller in writing.
With respect to the Mortgage Loans in a Mortgage Loan Package, the
Purchaser shall be entitled to (1) all principal received after the related Cut
off Date, (2) all other recoveries of prepayment penalties, assumption fees or
other charges collected after the related Cut-off Date, (3) all payments of
interest on the Mortgage Loans at the Mortgage Interest Rate from the last Due
Date until the Closing Date; and (4) all payments of interest on the Mortgage
Loans at the Mortgage Interest Rate (net of the Servicing Fee) after the Closing
Date.
SECTION 5. Examination of Mortgage Files.
At least five (5) Business Days prior to the related Closing Date,
the Seller shall deliver to the Purchaser or its designee in escrow, pursuant to
a mutually agreed upon bailee agreement, for examination with respect to each
Mortgage Loan in the related Mortgage Loan Package to be purchased, the related
Mortgage File, including a copy of the Assignment of Mortgage, pertaining to
each Mortgage Loan.
At least ten (10) Business Days prior to the related Closing
Date, with respect to each Mortgage Loan in the related Mortgage Loan Package to
be purchased, the Seller shall make the related Servicing Files and Credit Files
available to the Purchaser for examination at such location as shall otherwise
be acceptable to the Purchaser.
Such examination of the Mortgage Files may be made by the
Purchaser or its designee at any reasonable time before or after the related
Closing Date. If the Purchaser makes such examination prior to the related
Closing Date and determines, in its sole discretion, that any Mortgage Loan does
not satisfy the terms of the related Purchase Price and Terms Agreement, such
Mortgage Loan shall be deleted from the related Mortgage Loan Schedule. The
Purchaser may, at its option and without notice to the Seller, purchase some or
all of the Mortgage Loans without conducting any partial or complete
examination. The fact that the Purchaser or its designee has conducted or has
failed to conduct any partial or complete examination of the Mortgage Files or
the Credit Files shall not affect the Purchaser's (or any of its successor's)
rights to demand repurchase or other relief as provided herein.
In the event that the Seller fails to deliver the Credit Files with
respect to any Mortgage Loan after the related Closing Date, the Seller shall,
upon the request of the Purchaser, repurchase such Mortgage Loan at the price
and in the manner specified in Subsection 9.03.
SECTION 6. Conveyance from Seller to Purchaser.
Subsection 6.01 Conveyance of Mortgage Loans.
The Seller, on each related Closing Date, does hereby sell,
transfer, assign, set over and convey to the Purchaser, without recourse, but
subject to the terms of this Agreement, all rights, title and interest of the
Seller in and to the Mortgage Loans in the related Mortgage Loan Package, and
the Mortgage Files and all rights and obligations arising under the documents
contained therein for each Mortgage Loan in the related Mortgage Loan Package.
Subsection 6.02 Books and Records.
Record title to each Mortgage as of the related Closing Date may be
in the name of MERS, the Seller, an Affiliate of the Seller, or one or more
designees of the Seller. Notwithstanding the foregoing, each Mortgage and
related Mortgage Note shall be possessed solely by the Purchaser or the
appropriate designee of the Purchaser, as the case may be. All rights arising
out of the Mortgage Loans including, but not limited to, all funds received by
the Seller after the related Cut-off Date on or in connection with a Mortgage
Loan shall be vested in the Purchaser or one or more designees of the Purchaser;
provided, however, that all funds received on or in connection with a Mortgage
Loan shall be received and held by the Seller in trust for the benefit of the
Purchaser or the appropriate designee of the Purchaser, as the case may be, as
the owner of the Mortgage Loans pursuant to the terms of this Agreement.
The sale of each Mortgage Loan shall be reflected on the Seller's
balance sheet and other financial statements as a sale of assets by the Seller.
The Seller shall be responsible for maintaining, and shall maintain,
a complete set of books and records for each Mortgage Loan which shall be marked
clearly to reflect the ownership of each Mortgage Loan by the Purchaser. In
particular, the Seller shall maintain in its possession, available for
inspection by the Purchaser, and shall deliver to the Purchaser upon demand,
evidence of compliance with all federal, state and local laws, rules and
regulations, including but not limited to documentation as to the method used in
determining the applicability of the provisions of the National Flood Insurance
Act of 1968, as amended, to the Mortgaged Property, documentation evidencing
insurance coverage and periodic inspection reports. To the extent that original
documents are not required for purposes of realization of Liquidation Proceeds
or Insurance Proceeds, documents maintained by the Seller may be in the form of
microfilm or microfiche.
Subsection 6.03 Delivery of Mortgage Loan Documents.
The Seller shall deliver and release to the Custodian no later than
five (5) Business Days prior to the related Closing Date the Mortgage Files with
respect to each Mortgage Loan in the related Mortgage Loan Package.
The Custodian shall certify its receipt of all such Mortgage Loan
Documents required to be delivered pursuant to the Custodial Agreement for the
related Closing Date, as evidenced by the Initial Certification of the Custodian
in the form annexed to the Custodial Agreement.
The Seller shall forward to the Custodian, or to such other Person
as the Purchaser shall designate in writing, original documents evidencing an
assumption, modification, consolidation or extension of any Mortgage Loan
entered into in accordance with this Agreement within two (2) weeks of their
execution, provided, however, that the Seller shall provide the Custodian, or to
such other Person as the Purchaser shall designate in writing, with a certified
true copy of any such document submitted for recordation within two (2) weeks of
its execution, and shall promptly provide the original of any document submitted
for recordation or a copy of such document certified by the appropriate public
recording office to be a true and complete copy of the original within ninety
(90) days of its submission for recordation.
In the event any document listed on Exhibit A as constituting a part
of the Mortgage Files and required to be delivered to the Custodian pursuant to
this Subsection 6.03, including an original or copy of any document submitted
for recordation to the appropriate public recording office, is not so delivered
to the Custodian, or to such other Person as the Purchaser shall designate in
writing, on the related Closing Date (other than with respect to the Assignments
of Mortgage which shall be delivered to the Custodian in blank on or prior to
the related Closing Date and recorded subsequently by the Purchaser or its
designee or document submitted for recordation to the appropriate public
recording office), and in the event that the Seller does not cure such failure
within thirty (30) days of discovery or receipt of written notification of such
failure from the Purchaser, the related Mortgage Loan shall, upon the request of
the Purchaser, be repurchased by the Seller at the price and in the manner
specified in Subsection 9.03. The foregoing repurchase obligation shall not
apply in the event that the Seller cannot deliver an original document submitted
for recordation to the appropriate public recording office within the specified
period due to a delay caused by the recording office in the applicable
jurisdiction; provided that (i) the Seller shall instead deliver a recording
receipt of such recording office or, if such recording receipt is not available,
an officer's certificate of an officer of the Seller, confirming that such
documents have been accepted for recording; provided that, upon request of the
Purchaser and delivery by the Purchaser to the Seller of a schedule of the
Mortgage Loans, the Seller shall reissue and deliver to the Purchaser or its
designee said officer's certificate and (ii) such document is delivered within
twelve (12) months of the related Closing Date.
The Seller shall pay all initial recording, registration or transfer
fees, if any, for the assignments of mortgage and any other fees or costs in
transferring all original documents to the Custodian or, upon written request of
the Purchaser, to the Purchaser or the Purchaser's designee. The Purchaser or
the Purchaser's designee shall be responsible for recording the Assignments of
Mortgage and shall be reimbursed by the Seller for the costs associated
therewith pursuant to the preceding sentence.
Subsection 6.04 Quality Control Procedures.
The Seller shall have an internal quality control program that
verifies, on a regular basis, the existence and accuracy of the legal documents,
credit documents, property appraisals, and underwriting decisions. The program
shall include evaluating an monitoring the overall quality of the Seller's loan
production and the servicing activities of the Seller. The program is to ensure
that the Mortgage Loans are originated and serviced in accordance with Accepted
Servicing Standards and the Underwriting Guidelines; guard against dishonest,
fraudulent, or negligent acts; and guard against errors and omissions by
officers, employees, or other authorized persons.
SECTION 7. Servicing of the Mortgage Loans.
The Mortgage Loans shall be sold by the Seller to the Purchaser on a
servicing released basis. Subject to and upon the terms and conditions of this
Agreement, the Seller hereby sells, transfers, assigns, conveys and delivers to
the Purchaser the Servicing Rights.
The Purchaser shall retain the Seller as contract servicer of the
Mortgage Loans for an interim period pursuant to and in accordance with the
terms and conditions contained in the Interim Servicing Agreement (with respect
to each Mortgage Loan, for an interim period, as specified therein). The
Purchaser and Seller shall execute the Interim Servicing Agreement on the date
hereof, and, with respect to each Mortgage Loan Package to be interim serviced
thereunder, shall execute an Acknowledgement Agreement in the form of Exhibit 6
to the Interim Servicing Agreement on each related Closing Date. Pursuant to the
Interim Servicing Agreement, the Seller shall begin servicing the Mortgage Loans
on behalf of the Purchaser and shall be entitled to the Servicing Fee with
respect to such Mortgage Loans from the related Closing Date until the related
Transfer Date.
SECTION 8. Transfer of Servicing.
On the related Transfer Date, the Purchaser, or its designee, shall
assume all servicing responsibilities related to, and the Seller shall cease all
servicing responsibilities related to the Mortgage Loans. The related Transfer
Date shall be the date determined in accordance with the Interim Servicing
Agreement.
On or prior to the related Transfer Date, the Seller shall, at its
sole cost and expense, take such steps as may be necessary or appropriate to
effectuate and evidence the transfer of the servicing of the related Mortgage
Loans to the Successor Servicer, including but not limited to the following:
(a) Notice to Mortgagors. The Seller shall mail to the Mortgagor of
each related Mortgage Loan a letter advising such Mortgagor of the transfer of
the servicing of the related Mortgage Loan to the Purchaser, or its designee, in
accordance with the Xxxxxxxx Xxxxxxxx National Affordable Housing Act of 1990,
as amended; provided, however, the content and format of the letter shall have
the reasonable prior approval of the Purchaser. The Seller shall provide the
Purchaser with copies of all such related notices no later than the related
Transfer Date.
(b) Notice to Taxing Authorities and Insurance Companies. The Seller
shall transmit to the applicable taxing authorities and insurance companies
(including primary mortgage insurance policy insurers, if applicable) and/or
agents, notification of the transfer of the servicing to the Purchaser, or its
designee, and instructions to deliver all notices, tax bills and insurance
statements, as the case may be, to the Purchaser or its designee from and after
the related Transfer Date. The Seller shall provide the Purchaser and its
designee with copies of all such notices no later than the related Transfer
Date.
(c) Delivery of Servicing Records. The Seller shall forward to the
Purchaser, or its designee, all servicing records and the Servicing File in the
Seller's possession relating to each related Mortgage Loan including the
information enumerated in the Interim Servicing Agreement.
(d) Escrow Payments. The Seller shall provide the Purchaser, or its
designee, with immediately available funds by wire transfer in the amount of the
net Escrow Payments and suspense balances and all loss draft balances associated
with the related Mortgage Loans. The Seller shall provide the Purchaser with an
accounting statement of Escrow Payments and suspense balances and loss draft
balances sufficient to enable the Purchaser to reconcile the amount of such
payment with the accounts of the Mortgage Loans. Additionally, the Seller shall
wire transfer to the Purchaser the amount of any agency, trustee or prepaid
Mortgage Loan payments and all other similar amounts held by the Seller.
(e) Payoffs and Assumptions. The Seller shall provide to the
Purchaser, or its designee, copies of all assumption and payoff statements
generated by the Seller on the related Mortgage Loans from the related Cut-off
Date to the related Transfer Date.
(f) Mortgage Payments Received Prior to Transfer Date. Prior to the
related Transfer Date all payments received by the Seller on each related
Mortgage Loan shall be properly applied to the account of the particular
Mortgagor.
(g) Mortgage Payments Received After Transfer Date. The amount of
any related Monthly Payments received by the Seller for sixty (60) days after
the related Transfer Date shall be forwarded to the Purchaser by overnight mail
on or prior to the date which is one (1) Business Day after the date of receipt.
The Seller shall notify the Purchaser of the particulars of the payment, which
notification requirement shall be satisfied if the Seller forwards with its
payment sufficient information to permit appropriate processing of the payment
by the Purchaser. For payment received more than sixty (60) days after the
related Transfer Date, payments will be returned to the related Mortgagor with
instruction to remit payment to the Successor Servicer. With respect to Monthly
Payments received by the Seller after the related Transfer Date with respect to
related Mortgage Loans then in foreclosure or bankruptcy Seller shall endorse
the Monthly Payment to the Purchaser with the particulars of the payment such as
the account number, dollar amount, date received and any special Mortgagor
application instructions and the Seller shall comply with the foregoing
requirements with respect to all Monthly Payments received by the it after the
related Transfer Date.
(h) Misapplied Payments. Misapplied payments shall be processed as
follows:
(1) All parties shall cooperate in correcting misapplication
errors;
(2) The party receiving notice of a misapplied payment
occurring prior to the related Transfer Date and discovered after
the related Transfer Date shall immediately notify the other party;
(3) If a misapplied payment which occurred prior to the
related Transfer Date cannot be identified and said misapplied
payment has resulted in a shortage in a Custodial Account or Escrow
Account, the Seller shall be liable for the amount of such shortage.
The Seller shall reimburse the Purchaser for the amount of such
shortage within thirty (30) days after receipt of written demand
therefor from the Purchaser;
(4) If a misapplied payment which occurred prior to the
related Transfer Date has created an improper Purchase Price as the
result of an inaccurate outstanding principal balance, a check shall
be issued to the party shorted by the improper payment application
within five (5) Business Days after notice thereof by the other
party; and
(5) Any check issued under the provisions of this Section 8(h)
shall be accompanied by a statement indicating the corresponding
Seller and/or the Purchaser Mortgage Loan identification number and
an explanation of the allocation of any such payments.
(i) Books and Records. On the related Transfer Date, the books,
records and accounts of the Seller with respect to the related Mortgage Loans
shall be in accordance with all Accepted Servicing Practices (as defined in the
Interim Servicing Agreement).
(j) Reconciliation. The Seller shall on or before the related
Transfer Date, reconcile principal balances and make any monetary adjustments
necessary to accurately and correctly reconcile all servicing activities with
respect to such Mortgage Loan, including all payments received and all advances
made relating to such Mortgage Loan. Any such monetary adjustments will be
transferred between the Seller and the Purchaser as appropriate.
(k) IRS Forms. The Seller shall file all IRS Forms 1099, 1099A, 1098
or 1041 and K-1 which are required to be filed on or before the related Transfer
Date in relation to the servicing and ownership of the related Mortgage Loans.
The Seller shall provide copies of such forms to the Purchaser upon request and
shall reimburse the Purchaser for any costs or penalties incurred by the
Purchaser due to the Seller's failure to comply with this paragraph.
SECTION 9. Representations, Warranties and Covenants of the Seller;
Remedies for Breach.
Subsection 9.01 Representations and Warranties Regarding the Seller.
The Seller represents, warrants and covenants to the Purchaser, its
successors and assigns and the Successor Servicer that as of the date hereof and
as of each Closing Date:
(a) Due Organization and Authority. The Seller is a corporation duly
organized, validly existing and in good standing under the laws of the state of
its organization and has all licenses necessary to carry on its business as now
being conducted and is licensed, qualified and in good standing in each state
wherein it owns or leases any material properties or where a Mortgaged Property
is located, if the laws of such state require licensing or qualification in
order to conduct business of the type conducted by the Seller, and in any event
the Seller is in compliance with the laws of any such state to the extent
necessary to ensure the enforceability of the related Mortgage Loan in
accordance with the terms of this Agreement; the Seller has the full corporate
power, authority and legal right to hold, transfer and convey the Mortgage Loans
and to execute and deliver this Agreement and to perform its obligations
hereunder; the execution, delivery and performance of this Agreement (including
all instruments of transfer to be delivered pursuant to this Agreement) by the
Seller and the consummation of the transactions contemplated hereby have been
duly and validly authorized; this Agreement and all agreements contemplated
hereby have been duly executed and delivered and constitute the valid, legal,
binding and enforceable obligations of the Seller, regardless of whether such
enforcement is sought in a proceeding in equity or at law; and all requisite
corporate action has been taken by the Seller to make this Agreement and all
agreements contemplated hereby valid and binding upon the Seller in accordance
with their terms;
(b) Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in the ordinary course of
business of the Seller, and the transfer, assignment and conveyance of the
Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are
not subject to the bulk transfer or any similar statutory provisions in effect
in any applicable jurisdiction;
(c) No Conflicts. Neither the execution and delivery of this
Agreement, the acquisition or origination of the Mortgage Loans by the Seller,
the sale of the Mortgage Loans to the Purchaser, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with the
terms and conditions of this Agreement, will conflict with or result in a breach
of any of the terms, conditions or provisions of the Seller's charter or by-laws
or other organizational documents or any legal restriction or any agreement or
instrument to which the Seller is now a party or by which it is bound, or
constitute a default or result in an acceleration under any of the foregoing, or
result in the violation of any law, rule, regulation, order, judgment or decree
to which the Seller or its property is subject, or result in the creation or
imposition of any lien, charge or encumbrance that would have an adverse effect
upon any of its properties pursuant to the terms of any mortgage, contract, deed
of trust or other instrument, or impair the ability of the Purchaser to realize
on the Mortgage Loans, impair the value of the Mortgage Loans, or impair the
ability of the Purchaser to realize the full amount of any insurance benefits
accruing pursuant to this Agreement;
(d) Ability to Perform; Solvency. The Seller does not believe, nor
does it have any reason or cause to believe, that it cannot perform each and
every covenant contained in this Agreement. The Seller is solvent and the sale
of the Mortgage Loans will not cause the Seller to become insolvent. The sale of
the Mortgage Loans is not undertaken with the intent to hinder, delay or defraud
any of Seller's creditors;
(e) No Litigation Pending. There is no action, suit, proceeding or
investigation pending or threatened against the Seller, before any court,
administrative agency or other tribunal asserting the invalidity of this
Agreement, seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or which, either in any one instance or in the
aggregate, may result in any material adverse change in the business,
operations, financial condition, properties or assets of the Seller, or in any
material impairment of the right or ability of the Seller to carry on its
business substantially as now conducted, or in any material liability on the
part of the Seller, or which would draw into question the validity of this
Agreement or the Mortgage Loans or of any action taken or to be taken in
connection with the obligations of the Seller contemplated herein, or which
would be likely to impair materially the ability of the Seller to perform under
the terms of this Agreement. There is no action, suit, proceeding or
investigation pending against the Seller with respect to the Mortgage Loans
relating to fraud, predatory lending, servicing or closing practices;
(f) No Consent Required. No consent, approval, authorization or
order of, or registration or filing with, or notice to any court or governmental
agency or body including HUD, the FHA or the VA is required for the execution,
delivery and performance by the Seller of or compliance by the Seller with this
Agreement or the Mortgage Loans, the delivery of a portion of the Mortgage Files
to the Custodian or the sale of the Mortgage Loans or the consummation of the
transactions contemplated by this Agreement, or if required, such approval has
been obtained prior to the related Closing Date;
(g) Selection Process. The Mortgage Loans were selected from among
the outstanding one- to four-family mortgage loans in the Seller's portfolio at
the related Closing Date as to which the representations and warranties set
forth in Subsection 9.02 could be made and such selection was not made in a
manner so as to affect adversely the interests of the Purchaser;
(h) Delivery to the Custodian. The Mortgage Note, the Mortgage, the
Assignment of Mortgage and any other documents required to be delivered with
respect to each Mortgage Loan pursuant to the Custodial Agreement, and any other
documents required to be delivered with respect to each Mortgage Loan pursuant
to Subsection 6.03 hereof, shall be delivered to the Custodian. With respect to
each Mortgage Loan, the Seller will be in possession of a complete Mortgage File
in compliance with Exhibit A hereto, except for such documents as will be
delivered to the Custodian;
(i) Mortgage Loan Characteristics. The characteristics of the
Mortgage Loans are as set forth on the description of the pool characteristics
for the Mortgage Loans delivered pursuant to Section 11 on the related Closing
Date in the form attached as Exhibit I hereto;
(j) No Untrue Information. Neither this Agreement nor any
information, statement, tape or other document furnished or to be furnished
pursuant to this Agreement or any Reconstitution Agreement or in connection with
the transactions contemplated hereby (including any Securitization Transaction,
Whole Loan Transfer or Agency Transfer) contains or will contain any untrue
statement of fact or omits or will omit to state a fact necessary to make the
statements contained herein or therein not misleading;
(k) Financial Statements. The Seller has delivered to the Purchaser
financial statements as to its last three (3) complete fiscal years and any
later quarter ended more than sixty (60) days prior to the execution of this
Agreement. All such financial statements fairly present the pertinent results of
operations and changes in financial position for each of such periods and the
financial position at the end of each such period of the Seller and its
subsidiaries and have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods involved,
except as set forth in the notes thereto. There has been no change in the
business, operations, financial condition, properties or assets of the Seller
since the date of the Seller's financial statements that would have a material
adverse effect on its ability to perform its obligations under this Agreement.
The Seller has completed any forms requested by the Purchaser in a timely manner
and in accordance with the provided instructions;
(l) Loan Experience. To the extent available, the Seller has
delivered information as to its loan gain and loss experience in respect of
foreclosures, its loan delinquency experience for the immediately preceding
three-year period, prepayment speed and individual loan loss severities and
delinquency histories for at least the immediately preceding year, in each case
with respect to mortgage loans owned by it and such mortgage loans serviced for
others during such period, and all such information so delivered shall be true
and correct in all material respects;
(m) No Brokers. The Seller has not dealt with any broker, investment
banker, agent or other person that may be entitled to any commission or
compensation in connection with the sale of the Mortgage Loans;
(n) Sale Treatment. The Seller intends to reflect the transfer of
the Mortgage Loans as a sale on the books and records of the Seller and the
Seller has determined that the disposition of the Mortgage Loans pursuant to
this Agreement will be afforded sale treatment for tax and accounting purposes;
(o) Owner of Record. Except for a MERS Designated Mortgage Loan, the
Seller is the owner of record of each Mortgage and the indebtedness evidenced by
each Mortgage Note, except for any Assignments of Mortgage which have been sent
for recording, and upon recordation the Seller will be the owner of record of
each Mortgage and the indebtedness evidenced by each Mortgage Note, and upon the
sale of the Mortgage Loans to the Purchaser, the Seller will retain the Mortgage
Files with respect thereto in trust only for the purpose of servicing and
supervising the servicing of each Mortgage Loan;
(p) Reasonable Purchase Price. The Seller deems the consideration
received upon the sale of the Mortgage Loans under this Agreement to be fair
consideration and reasonably equivalent value for the Mortgage Loans;
(q) Seller's Origination. The Seller's decision to originate any
mortgage loan or to deny any mortgage loan application is an independent
decision based upon Xxxxxx's underwriting guidelines, and is in no way made as a
result of Purchaser's decision to purchase, or not to purchase, or the price
Purchaser may offer to pay for, any such mortgage loan, if originated; and
(r) Reports. On or prior to the date which is two (2) Business Days
after the related Closing Date, Seller will provide the Custodian and the
Purchaser with a MERS Report reflecting the Custodian as Investor with respect
to each MERS Designated Mortgage Loan and no Person as Interim Funder for each
MERS Designated Mortgage Loan.
Subsection 9.02 Representations and Warranties Regarding Individual
Mortgage Loans.
The Seller hereby represents and warrants to the Purchaser, its
successors and assigns and the Successor Servicer that, as to each Mortgage
Loan, as of the related Closing Date for such Mortgage Loan:
(a) Mortgage Loans as Described. The information set forth in the
related Mortgage Loan Schedule is complete, true and correct. The Mortgage Loan
Schedule sets forth whether the Mortgage Loan is subject to a prepayment
penalty;
(b) Payments Current. All payments required to be made up to the
related Closing Date for the Mortgage Loan under the terms of the Mortgage Note,
other than payments for which the related due date was not thirty (30) or more
days prior to the related Closing Date, have been made and credited. No Mortgage
Loan has been delinquent for thirty (30) or more days at any time since the
origination of the Mortgage Loan. The first Monthly Payment shall be made with
respect to the Mortgage Loan on its Due Date or within the grace period, all in
accordance with the terms of the related Mortgage Note;
(c) No Outstanding Charges. There are no defaults in complying with
the terms of the Mortgage, and all taxes, governmental assessments, insurance
premiums, water, sewer and municipal charges, leasehold payments or ground rents
which previously became due and owing have been paid, or with respect to
Escrowed Mortgage Loans, an escrow of funds has been established in an amount
sufficient to pay for every such item which remains unpaid and which has been
assessed but is not yet due and payable. The Seller has not advanced funds, or
induced, solicited or knowingly received any advance of funds by a party other
than the Mortgagor, directly or indirectly, for the payment of any amount
required under the Mortgage Loan, except for interest accruing from the date of
the Mortgage Note or date of disbursement of the Mortgage Loan proceeds,
whichever is earlier, to the day which precedes by one month the Due Date of the
first installment of principal and interest;
(d) Original Terms Unmodified. The terms of the Mortgage Note and
Mortgage have not been impaired, waived, altered or modified in any respect,
from the date of origination except by a written instrument which has been
recorded, if necessary to protect the interests of the Purchaser, and which has
been delivered to the Custodian or to such other Person as the Purchaser shall
designate in writing, and the terms of which are reflected in the related
Mortgage Loan Schedule. No Mortgage Loan has been modified so as to restructure
the payment obligations or re-age the Mortgage Loan. The substance of any such
waiver, alteration or modification has been approved by the title insurer, if
any, to the extent required by the policy, and its terms are reflected on the
related Mortgage Loan Schedule, if applicable. No Mortgagor has been released,
in whole or in part, except in connection with an assumption agreement, approved
by the issuer of the title insurer, to the extent required by the policy, and
which assumption agreement is part of the Mortgage Loan File delivered to the
Custodian or to such other Person as the Purchaser shall designate in writing
and the terms of which are reflected in the related Mortgage Loan Schedule;
(e) No Defenses. The Mortgage Loan is not subject to any right of
rescission, set-off, counterclaim or defense, including without limitation the
defense of usury, nor will the operation of any of the terms of the Mortgage
Note or the Mortgage, or the exercise of any right thereunder, render either the
Mortgage Note or the Mortgage unenforceable, in whole or in part, or subject to
any right of rescission, set-off, counterclaim or defense, including without
limitation the defense of usury, and no such right of rescission, set-off,
counterclaim or defense has been asserted with respect thereto, and no Mortgagor
was a debtor in any state or federal bankruptcy or insolvency proceeding at the
time the Mortgage Loan was originated;
(f) Hazard Insurance. Pursuant to the terms of the Mortgage, all
buildings or other improvements upon the Mortgaged Property are insured by a
generally acceptable insurer against loss by fire, hazards of extended coverage
and such other hazards as are provided for in the Xxxxxx Xxx Guides or by
Freddie Mac, as well as all additional requirements set forth in Section 2.10 of
the Interim Servicing Agreement. If required by the National Flood Insurance Act
of 1968, as amended, each Mortgage Loan is covered by a flood insurance policy
meeting the requirements of the current guidelines of the Federal Insurance
Administration is in effect which policy conforms to Xxxxxx Xxx and Freddie Mac,
as well as all additional requirements set forth in Section 2.10 of the Interim
Servicing Agreement. All individual insurance policies contain a standard
mortgagee clause naming the Seller and its successors and assigns as mortgagee,
and all premiums thereon have been paid. The Mortgage obligates the Mortgagor
thereunder to maintain the hazard insurance policy at the Mortgagor's cost and
expense, and on the Mortgagor's failure to do so, authorizes the holder of the
Mortgage to obtain and maintain such insurance at such Xxxxxxxxx's cost and
expense, and to seek reimbursement therefor from the Mortgagor. Where required
by state law or regulation, the Mortgagor has been given an opportunity to
choose the carrier of the required hazard insurance, provided the policy is not
a "master" or "blanket" hazard insurance policy covering a condominium, or any
hazard insurance policy covering the common facilities of a planned unit
development. The hazard insurance policy is the valid and binding obligation of
the insurer, is in full force and effect, and will be in full force and effect
and inure to the benefit of the Purchaser upon the consummation of the
transactions contemplated by this Agreement. The Seller has not engaged in, and
has no knowledge of the Mortgagor's or any servicer's having engaged in, any act
or omission which would impair the coverage of any such policy, the benefits of
the endorsement provided for herein, or the validity and binding effect of such
policy, without limitation, no unlawful fee, commission, kickback or other
unlawful compensation or value of any kind has been or will be received,
retained or realized by any attorney, firm or other person or entity, and no
such unlawful items have been received, retained or realized by the Seller;
(g) Compliance with Applicable Laws. Any and all requirements of any
federal, state or local law including, without limitation, usury,
truth-in-lending, real estate settlement procedures, consumer credit protection,
equal credit opportunity and disclosure laws or unfair and deceptive practices
laws applicable to the Mortgage Loan including, without limitation, any
provisions relating to prepayment penalties, have been complied with, the
consummation of the transactions contemplated hereby will not involve the
violation of any such laws or regulations. Each Mortgage Loan at the time it was
made complied in all material respects with applicable local, state and federal
laws, including, but not limited to, all applicable predatory and abusive
lending laws. The Seller shall maintain in its possession, available for the
Purchaser's inspection, and shall deliver to the Purchaser upon demand, evidence
of compliance with all such requirements;
(h) No Satisfaction of Mortgage. The Mortgage has not been
satisfied, canceled, subordinated or rescinded, in whole or in part, and the
Mortgaged Property has not been released from the lien of the Mortgage, in whole
or in part, nor has any instrument been executed that would effect any such
release, cancellation, subordination or rescission. The Seller has not waived
the performance by the Mortgagor of any action, if the Mortgagor's failure to
perform such action would cause the Mortgage Loan to be in default, nor has the
Seller waived any default resulting from any action or inaction by the
Mortgagor;
(i) Location and Type of Mortgaged Property. The Mortgaged Property
is located in the state identified in the related Mortgage Loan Schedule and
consists of real property with a detached single family residence erected
thereon, or a two- to four-family dwelling, or an individual condominium unit in
a low-rise condominium project, or an individual unit in a planned unit
development or a de minimis planned unit development which is in each case four
stories or less, provided, however, that any mobile home (double wide only) or
manufactured dwelling shall conform with the applicable Xxxxxx Xxx or Freddie
Mac requirements regarding such dwellings and that no Mortgage Loan is secured
by a single parcel of real property with a cooperative housing corporation, a
log home or a mobile home erected thereon or by a mixed-use property, or other
unique property types. As of the date of origination, no portion of the
Mortgaged Property was used for commercial purposes, and since the date of
origination, no portion of the Mortgaged Property has been used for commercial
purposes; provided, that Mortgaged Properties which contain a home office shall
not be considered as being used for commercial purposes as long as the Mortgaged
Property has not been altered for commercial purposes and is not storing any
chemicals or raw materials other than those commonly used for homeowner repair,
maintenance and/or household purposes. With respect to any Mortgage Loan secured
by a Mortgaged Property improved by manufactured housing, (i) the related
manufactured housing unit is permanently affixed to the land, and (ii) the
related manufactured housing unit and the related land are subject to a Mortgage
properly filed in the appropriate public recording office and naming the Seller
as mortgagee and (iii) the related Mortgaged Property is not located in the
state of New Jersey.
(j) Valid First or Second Lien. The Mortgage is a valid, subsisting,
enforceable and perfected, first or second lien (as applicable) on the Mortgaged
Property, including all buildings and improvements on the Mortgaged Property and
all installations and mechanical, electrical, plumbing, heating and air
conditioning systems located in or annexed to such buildings, and all additions,
alterations and replacements made at any time with respect to the foregoing. The
lien of the Mortgage is subject only to:
(1) the lien of current real property taxes and assessments
not yet due and payable;
(2) covenants, conditions and restrictions, rights of way,
easements and other matters of the public record as of the date of
recording acceptable to prudent mortgage lending institutions
generally and specifically referred to in the lender's title
insurance policy delivered to the originator of the Mortgage Loan
and (a) specifically referred to or otherwise considered in the
appraisal made for the originator of the Mortgage Loan or (b) which
do not adversely affect the Appraised Value of the Mortgaged
Property set forth in such appraisal;
(3) other matters to which like properties are commonly
subject which do not materially interfere with the benefits of the
security intended to be provided by the Mortgage or the use,
enjoyment, value or marketability of the related Mortgaged Property;
and
(4) with respect to Second Lien Mortgage Loans, the lien of
the first mortgage on the Mortgaged Property.
Any security agreement, chattel mortgage or equivalent document
related to and delivered in connection with the Mortgage Loan establishes and
creates a valid, subsisting, enforceable and perfected (A) first lien and first
priority security interest with respect to each first lien mortgage loan, or (B)
second lien and second priority security interest with respect to each Second
Lien Mortgage Loan, in either case, on the property described therein and Seller
has full right to sell and assign the same to Purchaser.
(k) Validity of Mortgage Documents. The Mortgage Note and the
Mortgage and any other agreement executed and delivered by a Mortgagor in
connection with a Mortgage Loan are genuine, and each is the legal, valid and
binding obligation of the maker thereof enforceable in accordance with its terms
(including, without limitation, any provisions therein relating to Prepayment
Charges). All parties to the Mortgage Note, the Mortgage and any other such
related agreement had legal capacity to enter into the Mortgage Loan and to
execute and deliver the Mortgage Note, the Mortgage and any such agreement, and
the Mortgage Note, the Mortgage and any other such related agreement have been
duly and properly executed by other such related parties.
(l) No Fraud. No fraud, error, omission, misrepresentation,
negligence or similar occurrence with respect to a Mortgage Loan has taken place
on the part of the Seller, or to the best of the Seller's knowledge, any other
person, including without limitation, the Mortgagor, any appraiser, any builder
or developer, or any other party involved in the origination or servicing of the
Mortgage Loan. The Seller has reviewed all of the documents constituting the
Servicing File and has made such inquiries as it deems necessary to make and
confirm the accuracy of the representations set forth herein;
(m) Full Disbursement of Proceeds. The Mortgage Loan has been closed
and the proceeds of the Mortgage Loan have been fully disbursed and there is no
requirement for future advances thereunder, and any and all requirements as to
completion of any on-site or off-site improvement and as to disbursements of any
escrow funds therefor have been complied with. All costs, fees and expenses
incurred in making or closing the Mortgage Loan and the recording of the
Mortgage were paid, and the Mortgagor is not entitled to any refund of any
amounts paid or due under the Mortgage Note or Mortgage;
(n) Ownership. As of the related Closing Date, the Seller is the
sole owner of record and holder of the Mortgage Loan and the indebtedness
evidenced by each Mortgage Note. The Mortgage Loan is not assigned or pledged,
and the Seller has good, indefeasible and marketable title thereto, and has full
right to transfer and sell the Mortgage Loan to the Purchaser free and clear of
any encumbrance, equity, participation interest, lien, pledge, charge, claim or
security interest, and has full right and authority subject to no interest or
participation of, or agreement with, any other party, to sell and assign each
Mortgage Loan pursuant to this Agreement and following the sale of each Mortgage
Loan, the Purchaser will own such Mortgage Loan free and clear of any
encumbrance, equity, participation interest, lien, pledge, charge, claim or
security interest. The Seller intends to relinquish all rights to possess,
control and monitor the Mortgage Loan. After the related Closing Date, the
Seller will have no right to modify or alter the terms of the sale of the
Mortgage Loan and the Seller will have no obligation or right to repurchase the
Mortgage Loan, except as provided in this Agreement;
(o) Doing Business. All parties which have had any interest in the
Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or,
during the period in which they held and disposed of such interest, were) (1) in
compliance with any and all applicable licensing requirements of the laws of the
state wherein the Mortgaged Property is located, and (2) either (i) organized
under the laws of such state, or (ii) qualified to do business in such state, or
(iii) a federal savings and loan association, a savings bank or a national bank
having a principal office in such state, or (3) not doing business in such
state;
(p) CLTV, LTV. No Mortgage Loan that is a Second Lien Mortgage Loan
has a CLTV in excess of 100%. No Mortgage Loan has an LTV greater than 100%.
(q) Title Insurance. The Mortgage Loan is covered by an ALTA
lender's title insurance policy, or with respect to any Mortgage Loan for which
the related Mortgaged Property is located in California a CLTA lender's title
insurance policy, or with respect to any Mortgage Loan for which the related
Mortgaged Property is located in Iowa, an attorney's opinion or other generally
acceptable form of policy or insurance acceptable to Xxxxxx Xxx or Freddie Mac
and each such title insurance policy is issued by a title insurer acceptable to
Xxxxxx Xxx or Freddie Mac and qualified to do business in the jurisdiction where
the Mortgaged Property is located, insuring the Seller, its successors and
assigns, as to the first priority lien (with respect to first lien Mortgage
Loans) or second priority lien (with respect to Second Lien Mortgage Loans) of
the Mortgage in the original principal amount of the Mortgage Loan, subject only
to the exceptions contained in clauses (1), (2), (3) and (4) of paragraph (j) of
this Subsection 9.02, and in the case of adjustable rate Mortgage Loans, against
any loss by reason of the invalidity or unenforceability of the lien resulting
from the provisions of the Mortgage providing for adjustment to the Mortgage
Interest Rate and Monthly Payment. Where required by state law or regulation,
the Mortgagor has been given the opportunity to choose the carrier of the
required mortgage title insurance. Additionally, such lender's title insurance
policy affirmatively insures ingress and egress, and against encroachments by or
upon the Mortgaged Property or any interest therein. The title policy does not
contain any special exceptions (other than the standard exclusions) for zoning
and uses and has been marked to delete the standard survey exceptions or to
replace the standard survey exception with a specific survey reading. The
Seller, its successors and assigns, are the sole insureds of such lender's title
insurance policy, and such lender's title insurance policy is valid and remains
in full force and effect and will be in force and effect upon the consummation
of the transactions contemplated by this Agreement. No claims have been made
under such lender's title insurance policy, and no prior holder of the related
Mortgage, including the Seller, has done, by act or omission, anything which
would impair the coverage of such lender's title insurance policy, including
without limitation, no unlawful fee, commission, kickback or other unlawful
compensation or value of any kind has been or will be received, retained or
realized by any attorney, firm or other person or entity, and no such unlawful
items have been received, retained or realized by the Seller;
(r) No Defaults. Other than payments due but not yet thirty (30)
days or more delinquent, there is no default, breach, violation or event which
would permit acceleration existing under the Mortgage or the Mortgage Note and
no event which, with the passage of time or with notice and the expiration of
any grace or cure period, would constitute a default, breach, violation or event
which would permit acceleration, and neither the Seller nor any of its
affiliates nor any of their respective predecessors, have waived any default,
breach, violation or event which would permit acceleration. With respect to each
Second Lien Mortgage Loan, (i) the prior mortgage is in full force and effect,
(ii) there is no default, breach, violation or event of acceleration existing
under such prior mortgage or the related mortgage note, (iii) as of the related
Closing Date, no event which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a default, breach,
violation or event of acceleration thereunder, and either (A) the prior mortgage
contains a provision which allows or (B) applicable law requires, the mortgagee
under the Second Lien Mortgage Loan to receive notice of, and affords such
mortgagee an opportunity to cure any default by payment in full or otherwise
under the prior mortgage;
(s) No Mechanics' Liens. There are no mechanics' or similar liens or
claims which have been filed for work, labor or material (and no rights are
outstanding that under law could give rise to such liens) affecting the related
Mortgaged Property which are or may be liens prior to, or equal or coordinate
with, the lien of the related Mortgage;
(t) Location of Improvements; No Encroachments. All improvements
which were considered in determining the Appraised Value of the Mortgaged
Property lay wholly within the boundaries and building restriction lines of the
Mortgaged Property, and no improvements on adjoining properties encroach upon
the Mortgaged Property. No improvement located on or being part of the Mortgaged
Property is in violation of any applicable zoning law or regulation;
(u) Origination; Payment Terms. At the time the Mortgage Loan was
originated, either (a) the originator was a mortgagee approved by the Secretary
of Housing and Urban Development pursuant to Sections 203 and 211 of the
National Housing Act or a savings and loan association, a savings bank, a
commercial bank or similar banking institution which is supervised and examined
by a federal or state authority or (b) the following requirements have been met
with respect to the Mortgage Loan: Seller meets the requirements set forth in
clause (a), and (i) such Mortgage Loan was underwritten in accordance with
standards established by Seller, using application forms and related credit
documents approved by Seller, (ii) Seller approved each application and the
related credit documents before a commitment by the correspondent was issued,
and no such commitment was issued until Seller agreed to fund such Mortgage
Loan, (iii) the closing documents for such Mortgage Loan were prepared on forms
approved by Seller and (iv) such Mortgage Loan was purchased by Seller at
closing or soon thereafter. The documents, instruments and agreements submitted
for loan underwriting were not falsified and contain no untrue statement of
material fact or omit to state a material fact required to be stated therein or
necessary to make the information and statements therein not misleading. No
Mortgage Loan contains terms or provisions which would result in negative
amortization. Except with respect to interest-only Mortgage Loans, principal
payments on the Mortgage Loan commenced no more than sixty (60) days after funds
were disbursed in connection with the Mortgage Loan. The Mortgage Interest Rate
as well as the Lifetime Rate Cap and the Periodic Cap, are as set forth on
Exhibit I hereto. Except with respect to Mortgage Loans that require principal
and interest payments sufficient to amortize the Mortgage Loan fully by the
stated maturity date over an original term of not more than forty (40) years
from commencement of amortization, the Mortgage Note is payable in monthly
installments of principal and interest (or with respect to interest-only
Mortgage Loans, payments of interest during the interest-only period), which
installments of interest with respect to Adjustable Rate Mortgage Loans, are
subject to change due to the adjustments to the Mortgage Interest Rate on each
Interest Rate Adjustment Date, with interest calculated and payable in arrears,
sufficient to amortize the Mortgage Loan fully by the stated maturity date, over
an original term of not more than thirty (30) years from commencement of
amortization. The Mortgage Loan is payable on the first day of each month. There
are no Convertible Mortgage Loans which contain a provision allowing the
Mortgagor to convert the Mortgage Note from an adjustable interest rate Mortgage
Note to a fixed interest rate Mortgage Note. No Mortgage Loan is a balloon
mortgage loan that has an original stated maturity of less than seven (7) years;
(v) Customary Provisions. The Mortgage contains customary and
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for the realization against the Mortgaged Property of the
benefits of the security provided thereby, including, (i) in the case of a
Mortgage designated as a deed of trust, by trustee's sale, and (ii) otherwise by
judicial foreclosure. Upon default by a Mortgagor on a Mortgage Loan and
foreclosure on, or trustee's sale of, the Mortgaged Property pursuant to the
proper procedures, the holder of the Mortgage Loan will be able to deliver good
and merchantable title to the Mortgaged Property. There is no homestead or other
exemption available to a Mortgagor which would interfere with the right to sell
the Mortgaged Property at a trustee's sale or the right to foreclose the
Mortgage, subject to applicable federal and state laws and judicial precedent
with respect to bankruptcy and right of redemption or similar law;
(w) Conformance with Underwriting Standards. The Mortgage Loan was
underwritten in accordance with the Underwriting Standards (a copy of which is
attached hereto as Exhibit J). The Mortgage Note and Mortgage are on forms
acceptable in the secondary market and the Seller has not made any
representations to a Mortgagor that are inconsistent with the mortgage
instruments used;
(x) Occupancy of the Mortgaged Property. The Mortgaged Property is
lawfully occupied under applicable law. All inspections, licenses and
certificates required to be made or issued with respect to all occupied portions
of the Mortgaged Property and, with respect to the use and occupancy of the
same, including but not limited to certificates of occupancy and fire
underwriting certificates, have been made or obtained from the appropriate
authorities;
(y) No Additional Collateral. The Mortgage Note is not and has not
been secured by any collateral except the lien of the corresponding Mortgage and
the security interest of any applicable security agreement or chattel mortgage
referred to in clause (j) above;
(z) Deeds of Trust. In the event the Mortgage constitutes a deed of
trust, a trustee, authorized and duly qualified under applicable law to serve as
such, has been properly designated and currently so serves and is named in the
Mortgage, and no fees or expenses are or will become payable by the Purchaser to
the trustee under the deed of trust, except in connection with a trustee's sale
after default by the Mortgagor;
(aa) Acceptable Investment. There are no circumstances or conditions
with respect to the Mortgage, the Mortgaged Property, the Mortgagor, the
Mortgage File or the Mortgagor's credit standing that can reasonably be expected
to cause private institutional investors to regard the Mortgage Loan as an
unacceptable investment to Seller's knowledge, cause the Mortgage Loan to become
delinquent, or adversely affect the value or marketability of the Mortgage Loan,
or cause the Mortgage Loans to prepay during any period materially faster or
slower than the mortgage loans originated by the Seller generally;
(bb) Delivery of Mortgage Documents. The Mortgage Note, the
Mortgage, the Assignment of Mortgage and any other documents constituting the
Mortgage File for each Mortgage Loan have been delivered to the Custodian. The
Seller is in possession of a complete, true and accurate Mortgage File in
compliance with Exhibit A hereto, except for such documents the originals of
which have been delivered to the Custodian;
(cc) Condominiums/Planned Unit Developments. If the Mortgaged
Property is a condominium unit or a planned unit development (other than a de
minimis planned unit development) such condominium or planned unit development
project such Mortgage Loan was originated in accordance with, and the Mortgaged
Property meets the guidelines set forth in the Seller's Underwriting Guidelines;
(dd) Transfer of Mortgage Loans. The Assignment of Mortgage (except
with respect to any Mortgage that has been recorded in the name of MERS or its
designee), with respect to each Mortgage Loan is in recordable form and is
acceptable for recording under the laws of the jurisdiction in which the
Mortgaged Property is located. The transfer, assignment and conveyance of the
Mortgage Notes and the Mortgages by the Seller are not subject to the bulk
transfer or similar statutory provisions in effect in any applicable
jurisdiction;
(ee) Due-On-Sale. With respect to each Fixed Rate Mortgage Loan, the
Mortgage contains an enforceable provision for the acceleration of the payment
of the unpaid principal balance of the Mortgage Loan in the event that the
Mortgaged Property is sold or transferred without the prior written consent of
the mortgagee thereunder, and such provision is enforceable;
(ff) Assumability. None of the Mortgage Loans are, by their terms,
assumable without the related mortgagee's approval;
(gg) No Buydown Provisions; No Graduated Payments or Contingent
Interests. The Mortgage Loan does not contain provisions pursuant to which
Monthly Payments are paid or partially paid with funds deposited in any separate
account established by the Seller, the Mortgagor, or anyone on behalf of the
Mortgagor, or paid by any source other than the Mortgagor nor does it contain
any other similar provisions which may constitute a "buydown" provision. The
Mortgage Loan is not a graduated payment mortgage loan and the Mortgage Loan
does not have a shared appreciation or other contingent interest feature;
(hh) Consolidation of Future Advances. Any future advances made to
the Mortgagor prior to the related Cut-off Date have been consolidated with the
outstanding principal amount secured by the Mortgage, and the secured principal
amount, as consolidated, bears a single interest rate and single repayment term.
The lien of the Mortgage securing the consolidated principal amount is expressly
insured as having first or second lien priority (as applicable) by a title
insurance policy, an endorsement to the policy insuring the mortgagee's
consolidated interest or by other title evidence acceptable to prudent lenders
and servicers of mortgage loans similar to the Mortgage Loans. The consolidated
principal amount does not exceed the original principal amount of the Mortgage
Loan;
(ii) Mortgaged Property Undamaged; No Condemnation Proceedings.
There is no proceeding pending or threatened for the total or partial
condemnation of the Mortgaged Property. The Mortgaged Property is undamaged by
waste, fire, earthquake or earth movement, windstorm, flood, hurricane, tornado
or other casualty so as to affect adversely the value of the Mortgaged Property
as security for the Mortgage Loan or the use for which the premises were
intended and each Mortgaged Property is in good repair. There have not been any
condemnation proceedings with respect to the Mortgaged Property and the Seller
has no knowledge of any such proceedings in the future;
(jj) Collection Practices; Escrow Deposits; Interest Rate
Adjustments. The origination, servicing and collection practices used by the
Seller, and any prior servicer with respect to the Mortgage Loan have been in
all respects in compliance with Accepted Servicing Practices, applicable laws
and regulations, and have been in all respects legal and proper and prudent in
the mortgage origination and servicing business. With respect to escrow deposits
and Escrow Payments, all such payments are in the possession of, or under the
control of the Seller and there exist no deficiencies in connection therewith
for which customary arrangements for repayment thereof have not been made. All
Escrow Payments have been collected in full compliance with state and federal
law and the provisions of the related Mortgage Note and Mortgage. With respect
to Escrowed Mortgage Loans, an escrow of funds is not prohibited by applicable
law and has been established in an amount sufficient to pay for every item that
remains unpaid and has been assessed but is not yet due and payable. No escrow
deposits or Escrow Payments or other charges or payments due the Seller have
been capitalized under the Mortgage or the Mortgage Note. All Mortgage Interest
Rate adjustments have been made in strict compliance with state and federal law
and the terms of the related Mortgage and Mortgage Note on the related Interest
Rate Adjustment Date. The Seller executed and delivered any and all notices
required under applicable law and the terms of the related Mortgage Note and
Mortgage regarding the Mortgage Interest Rate and the Monthly Payment
adjustments. Any interest required to be paid pursuant to state, federal and
local law has been properly paid and credited;
(kk) Conversion to Fixed Interest Rate. With respect to Adjustable
Rate Mortgage Loans, the Mortgage Loan is not a Convertible Mortgage Loan;
(ll) Other Insurance Policies. No action, inaction or event has
occurred and no state of facts exists or has existed that has resulted or will
result in the exclusion from, denial of, or defense to coverage under any
applicable, special hazard insurance policy, or bankruptcy bond, irrespective of
the cause of such failure of coverage. In connection with the placement of any
such insurance, no commission, fee, or other compensation has been or will be
received by the Seller or by any officer, director, or employee of the Seller or
any designee of the Seller or any corporation in which the Seller or any
officer, director, or employee had a financial interest at the time of placement
of such insurance;
(mm) No Violation of Environmental Laws. The Mortgaged Property is
free from any and all toxic or hazardous substances and there exists no
violation of any local, state or federal environmental law, rule or regulation.
There is no pending action or proceeding directly involving the Mortgaged
Property in which compliance with any environmental law, rule or regulation is
an issue; there is no violation of any environmental law, rule or regulation
with respect to the Mortgage Property; and nothing further remains to be done to
satisfy in full all requirements of each such law, rule or regulation
constituting a prerequisite to use and enjoyment of said property;
(nn) Servicemembers Civil Relief Act of 2003. The Mortgagor has not
notified the Seller, and the Seller has no knowledge of any relief requested or
allowed to the Mortgagor under the Servicemembers Civil Relief Act of 2003;
(oo) Appraisal. The Mortgage File contains an appraisal of the
related Mortgaged Property signed prior to the approval of the Mortgage Loan
application by a Qualified Appraiser, acceptable to the related originator, who
had no interest, direct or indirect in the Mortgaged Property or in any loan
made on the security thereof, and whose compensation is not affected by the
approval or disapproval of the Mortgage Loan, and the appraisal and appraiser
both satisfy the requirements of Xxxxxx Xxx or Freddie Mac and Title XI of the
Financial Institutions Reform, Recovery, and Enforcement Act of 1989 and the
regulations promulgated thereunder, all as in effect on the date the Mortgage
Loan was originated;
(pp) Disclosure Materials. The Mortgagor has executed a statement to
the effect that the Mortgagor has received all disclosure materials required by,
and the Seller has complied with, all applicable law with respect to the making
of the Mortgage Loans. The Seller shall maintain such statement in the Mortgage
File;
(qq) Construction or Rehabilitation of Mortgaged Property. No
Mortgage Loan was made in connection with the construction or rehabilitation of
a Mortgaged Property or facilitating the trade-in or exchange of a Mortgaged
Property;
(rr) Value of Mortgaged Property. The Seller has no knowledge of any
circumstances existing that could be expected to adversely affect the value or
the marketability of any Mortgaged Property or Mortgage Loan or to cause the
Mortgage Loans to prepay during any period materially faster or slower than
similar mortgage loans held by the Seller generally secured by properties in the
same geographic area as the related Mortgaged Property;
(ss) No Defense to Insurance Coverage. The Seller has caused or will
cause to be performed any and all acts required to preserve the rights and
remedies of the Purchaser in any insurance policies applicable to the Mortgage
Loans including, without limitation, any necessary notifications of insurers,
assignments of policies or interests therein, and establishments of coinsured,
joint loss payee and mortgagee rights in favor of the Purchaser. No action has
been taken or failed to be taken, no event has occurred and no state of facts
exists or has existed on or prior to the related Closing Date (whether or not
known to the Seller on or prior to such date) which has resulted or will result
in an exclusion from, denial of, or defense to coverage under any primary
mortgage insurance (including, without limitation, any exclusions, denials or
defenses which would limit or reduce the availability of the timely payment of
the full amount of the loss otherwise due thereunder to the insured) whether
arising out of actions, representations, errors, omissions, negligence, or fraud
of the Seller, the related Mortgagor or any party involved in the application
for such coverage, including the appraisal, plans and specifications and other
exhibits or documents submitted therewith to the insurer under such insurance
policy, or for any other reason under such coverage, but not including the
failure of such insurer to pay by reason of such insurer's breach of such
insurance policy or such insurer's financial inability to pay;
(tt) Escrow Analysis. With respect to each Escrowed Mortgage Loan,
the Seller has within the last twelve (12) months (unless such Mortgage was
originated within such twelve-month period) analyzed the required Escrow
Payments for each Mortgage and adjusted the amount of such payments so that,
assuming all required payments are timely made, any deficiency will be
eliminated on or before the first anniversary of such analysis, or any overage
will be refunded to the Mortgagor, in accordance with RESPA and any other
applicable law;
(uu) Prior Servicing. Each Mortgage Loan has been serviced in strict
compliance with Accepted Servicing Practices;
(vv) Credit Information. As to each consumer report (as defined in
the Fair Credit Reporting Act, Public Law 91-508) or other credit information
furnished by the Seller to the Purchaser, that Seller has full right and
authority and is not precluded by law or contract from furnishing such
information to the Purchaser and the Purchaser is not precluded by the terms of
the Mortgage Loan Documents from furnishing the same to any subsequent or
prospective purchaser of such Mortgage. The Seller shall hold the Purchaser
harmless from any and all damages, losses, costs and expenses (including
attorney's fees) arising from disclosure of credit information in connection
with the Purchaser's secondary marketing operations and the purchase and sale of
mortgages. The Seller has in its capacity as servicer, for each Mortgage Loan,
fully furnished, in accordance with the Fair Credit Reporting Act and its
implementing regulations, accurate and complete information (e.g., favorable and
unfavorable) on its borrower credit files to Equifax, Experian and Trans Union
Credit Information Company (three of the credit repositories), on a monthly
basis;
(ww) Leaseholds. If the Mortgage Loan is secured by a long-term
residential lease, (1) the lessor under the lease holds a fee simple interest in
the land; (2) the terms of such lease expressly permit the mortgaging of the
leasehold estate, the assignment of the lease without the lessor's consent and
the acquisition by the holder of the Mortgage of the rights of the lessee upon
foreclosure or assignment in lieu of foreclosure or provide the holder of the
Mortgage with substantially similar protections; (3) the terms of such lease do
not (a) allow the termination thereof upon the lessee's default without the
holder of the Mortgage being entitled to receive written notice of, and
opportunity to cure, such default, (b) allow the termination of the lease in the
event of damage or destruction as long as the Mortgage is in existence, (c)
prohibit the holder of the Mortgage from being insured (or receiving proceeds of
insurance) under the hazard insurance policy or policies relating to the
Mortgaged Property or (d) permit any increase in rent other than pre-established
increases set forth in the lease; (4) the original term of such lease is not
less than fifteen (15) years; (5) the term of such lease does not terminate
earlier than five (5) years after the maturity date of the Mortgage Note; and
(6) the Mortgaged Property is located in a jurisdiction in which the use of
leasehold estates in transferring ownership in residential properties is a
widely accepted practice;
(xx) Prepayment Penalty. With respect to each Mortgage Loan that has
a prepayment penalty feature, each such prepayment penalty is enforceable and
will be enforced by the Seller for the benefit of the Purchaser, and each
prepayment penalty is permitted pursuant to federal, state and local law. Each
such prepayment penalty is in an amount not more than the maximum amount
permitted under applicable law and no such prepayment penalty may be imposed for
a term in excess of five (5) years with respect to Mortgage Loans originated
prior to October 1, 2002. With respect to Mortgage Loans originated on or after
October 1, 2002, the duration of the prepayment period shall not exceed three
(3) years from the date of the Mortgage Note unless the Mortgage Loan was
modified to reduce the prepayment period to no more than three (3) years from
the date of the note and the Mortgagor was notified in writing of such reduction
in prepayment period. With respect to any Mortgage Loan that contains a
provision permitting imposition of a premium upon a prepayment prior to
maturity: (i) prior to the loan's origination, the Mortgagor agreed to such
premium in exchange for a monetary benefit, including but not limited to a rate
or fee reduction, and (ii) the prepayment premium is disclosed to the Mortgagor
in the loan documents pursuant to applicable state, local and federal law;
(yy) Predatory Lending Regulations. No Mortgage Loan is a High Cost
Loan or Covered Loan, as applicable, and no Mortgage Loan originated on or after
October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending
Act. No Mortgage Loan is covered by the Home Ownership and Equity Protection Act
of 1994 and no Mortgage Loan is in violation of any comparable state or local
law. The Mortgaged Property is not located in a jurisdiction where a breach of
this representation with respect to the related Mortgage Loan may result in
additional assignee liability to the Purchaser, as determined by Purchaser in
its reasonable discretion. No predatory or deceptive lending practices,
including, without limitation, the extension of credit without regard to the
ability of the Mortgagor to repay and the extension of credit which has no
apparent benefit to the Mortgagor, were employed in the origination of the
Mortgage Loan;
(zz) Single-premium Credit Life Insurance Policy. In connection with
the origination of any Mortgage Loan, no proceeds from any Mortgage Loan were
used to finance or acquire a single-premium credit life insurance policy. No
Mortgagor was required to purchase any single premium credit insurance policy
(e.g., life, disability, accident, unemployment, or health insurance product) or
debt cancellation agreement as a condition of obtaining the extension of credit.
No Mortgagor obtained a prepaid single premium credit insurance policy (e.g.,
life, disability, accident, unemployment, mortgage, or health insurance) in
connection with the origination of the Mortgage Loan; no proceeds from any
Mortgage Loan were used to purchase single premium credit insurance policies or
debt cancellation agreements as part of the origination of, or as a condition to
closing, such Mortgage Loan;
(aaa) Tax Service Contract; Flood Certification Contract. Each
Mortgage Loan is covered by a paid in full, life of loan, tax service contract
and a paid in full, life of loan, flood certification contract and each of these
contracts is assignable to the Purchaser;
(bbb) Qualified Mortgage. The Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code;
(ccc) Regarding the Mortgagor. The Mortgagor is one or more natural
persons and/or trustees for an Illinois land trust or a trustee under a "living
trust" and such "living trust" is in compliance with Xxxxxx Xxx guidelines for
such trusts;
(ddd) Recordation. Each original Mortgage was recorded and, except
for those Mortgage Loans subject to the MERS identification system, all
subsequent assignments of the original Mortgage (other than the assignment to
the Purchaser) have been recorded in the appropriate jurisdictions wherein such
recordation is necessary to perfect the lien thereof as against creditors of the
Seller, or is in the process of being recorded;
(eee) FICO Scores. Each Mortgagor has a non-zero FICO score. No
Mortgage Loan has a Mortgagor with a FICO score of less than 500;
(fff) Compliance with Anti-Money Laundering Laws. The Seller has
complied with all applicable anti-money laundering laws and regulations,
including without limitation the USA PATRIOT Act of 2001 (collectively, the
"Anti-Money Laundering Laws"); the Seller has established an anti-money
laundering compliance program as required by the Anti-Money Laundering Laws, has
conducted the requisite due diligence in connection with the origination of each
Mortgage Loan for purposes of the Anti-Money Laundering Laws, including with
respect to the legitimacy of the applicable Mortgagor and the origin of the
assets used by the said Xxxxxxxxx to purchase the property in question, and
maintains, and will maintain, sufficient information to identify the applicable
Mortgagor for purposes of the Anti-Money Laundering Laws;
(ggg) Litigation. The Mortgage Loan is not subject to any
outstanding litigation for fraud, origination, predatory lending, servicing or
closing practices;
(hhh) MERS Designations. With respect to each MERS Designated
Mortgage Loan, the Seller has designated the Custodian as the Investor and no
Person is listed as Interim Funder on the MERS(R) System;
(iii) Reports. On or prior to the related Closing Date, the Seller
has provided the Custodian and the Purchaser with a MERS Report listing the
Custodian as the Investor with respect to each MERS Designated Mortgage Loan;
(jjj) Arbitration. With respect to any Mortgage Loan originated on
or after August 1, 2004, neither the related Mortgage nor the related Mortgage
Note requires the Mortgagor to submit to arbitration to resolve any dispute
arising out of or relating in any way to the Mortgage Loan transaction;
(kkk) Points and Fees. All points and fees related to each Mortgage
Loan were disclosed in writing to the Mortgagor in accordance with applicable
state and federal law and regulation;
(lll) Fees Charges. All fees and charges (including finance charges)
and whether or not financed, assessed, collected or to be collected in
connection with the origination and servicing of each Mortgage Loan has been
disclosed in writing to the Mortgagor in accordance with applicable state and
federal law and regulation; and
(mmm) Underwriting Methodology. The methodology used in underwriting
the extension of credit for each Mortgage Loan employs, in part, objective
mathematical principles which relate the Mortgagor's income, assets and
liabilities to the proposed payment and such underwriting methodology does not
rely on the extent of the Mortgagor's equity in the collateral as the principal
determining factor in approving such credit extension. Such underwriting
methodology confirmed that at the time of origination (application/approval) the
Mortgagor had a reasonable ability to make timely payments on the Mortgage Loan.
Subsection 9.03 Remedies for Breach of Representations and
Warranties.
It is understood and agreed that the representations and warranties
set forth in Subsections 9.01 and 9.02 shall survive the sale of the Mortgage
Loans to the Purchaser and shall inure to the benefit of the Purchaser, its
successors and assigns and the Successor Servicer, notwithstanding any
restrictive or qualified endorsement on any Mortgage Note or Assignment of
Mortgage or the examination or failure to examine any Mortgage File. Upon
discovery by either the Seller or the Purchaser of a breach of any of the
foregoing representations and warranties, the party discovering such breach
shall give prompt written notice to the other.
With respect to those representations and warranties which are made
to the best of the Seller's knowledge, if it is discovered by the Seller or the
Purchaser that the substance of such representation and warranty is inaccurate
and such inaccuracy materially and adversely affects the value of the related
Mortgage Loan or the interest of the Purchaser (or which materially and
adversely affects the value of a Mortgage Loan or the interests of the Purchaser
in the related Mortgage Loan in the case of a representation and warranty
relating to a particular Mortgage Loan), notwithstanding the Seller's lack of
knowledge with respect to the substance of such representation and warranty,
such inaccuracy shall be deemed a breach of the applicable representation and
warranty.
Within sixty (60) days of the earlier of either discovery by or
notice to the Seller of any breach of a representation or warranty which
materially and adversely affects the value of the Mortgage Loans or the interest
of the Purchaser therein (or which materially and adversely affects the value of
the applicable Mortgage Loan or the interest of the Purchaser therein in the
case of a representation and warranty relating to a particular Mortgage Loan),
the Seller shall use its best efforts promptly to cure such breach in all
material respects and, if such breach cannot be cured, the Seller shall, at the
Purchaser's option, repurchase such Mortgage Loan at the Repurchase Price,
together with all expenses incurred by the Purchaser as a result of such
repurchase. Notwithstanding the above sentence, within sixty (60) days of the
earlier of either discovery by, or notice to, the Seller of any breach of the
representations or warranties set forth in clauses (vv), (xx), (yy), (zz),
(bbb), (hhh) or (jjj) of Subsection 9.02, the Seller shall repurchase such
Mortgage Loan at the Repurchase Price, together with all expenses incurred by
the Purchaser as a result of such repurchase. In the event that a breach shall
involve any representation or warranty set forth in Subsection 9.01, and such
breach cannot be cured within sixty (60) days of the earlier of either discovery
by or notice to the Seller of such breach, all of the Mortgage Loans shall, at
the Purchaser's option, be repurchased by the Seller at the Repurchase Price.
Any repurchase of a Mortgage Loan or Loans pursuant to the foregoing provisions
of this Subsection 9.03 shall be accomplished by direct remittance of the
Repurchase Price to the Purchaser or its designee in accordance with the
Purchaser's instructions.
At the time of repurchase, the Purchaser and the Seller shall
arrange for the reassignment of the Deleted Mortgage Loan to the Seller and the
delivery to the Seller of any documents held by the Custodian relating to the
Deleted Mortgage Loan. In the event of a repurchase, the Seller shall,
simultaneously with such reassignment, give written notice to the Purchaser that
such repurchase has taken place, amend the related Mortgage Loan Schedule to
reflect the withdrawal of the Deleted Mortgage Loan from this Agreement.
In addition to such repurchase obligation, the Seller shall
indemnify the Purchaser, its successors and assigns and the Successor Servicer
and hold them harmless against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and other costs and expenses resulting from any claim, demand, defense or
assertion based on or grounded upon, or resulting from, a breach of the Seller
representations and warranties contained in this Agreement or any Reconstitution
Agreement. It is understood and agreed that the obligations of the Seller set
forth in this Subsection 9.03 to cure or repurchase a defective Mortgage Loan
and to indemnify the Purchaser, its successors and assigns and the Successor
Servicer as provided in this Subsection 9.03 constitute the sole remedies
respecting a breach of the foregoing representations and warranties. For
purposes of this paragraph, "Purchaser" shall mean the Person then acting as the
Purchaser under this Agreement and any and all Persons who previously were
"Purchasers" under this Agreement and "Successor Servicer" shall mean the Person
then acting as the Successor Servicer under this Agreement and any and all
Persons who previously were "Successor Servicers" under this Agreement.
Upon the request of the Purchaser, the Seller hereby agrees to
execute a recognition agreement in the form of Exhibit L hereto recognizing the
servicer designated by the Purchaser therein as the Successor Servicer.
Any cause of action against the Seller relating to or arising out of
the breach of any representations and warranties made in Subsections 9.01 and
9.02 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by
the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by
the Seller to cure such breach or repurchase such Mortgage Loan as specified
above, and (iii) demand upon the Seller by the Purchaser for compliance with
this Agreement.
Subsection 9.04 Repurchase of Mortgage Loans With Early Payment
Defaults.
If the related Mortgagor fails to make the first Monthly Payment due
after the related Closing Date on or prior to the date which is thirty (30) days
following the related Due Date (an "Early Payment Default"), the Seller, at the
Purchaser's option, shall repurchase such Mortgage Loan from the Purchaser at
the Repurchase Price within five (5) Business Days.
Three (3) days prior to the repurchase date, the Purchaser, the
Seller and an independent third party bailee shall arrange for the delivery to
such independent third party bailee, pursuant to a bailee agreement mutually
acceptable to the Purchaser, Seller and such independent third party bailee, of
the Mortgage Loan Documents held by the Purchaser or its designee relating to
the repurchased Mortgage Loan. Within three (3) Business Days of repurchase, but
in no instance later than the servicing transfer date, all Mortgage Files shall
be released to Meritage Mortgage Corporation, 0000 Xxxxxxxxx Xxx, Xxxxxxxxxxxx,
XX 00000, Attn: Capital Markets Department.
Subsection 9.05 Purchaser's Right to Review.
Prior to the related Closing Date, the Purchaser shall have the
right to perform on-site due diligence at the premises of the Seller with
respect to the Mortgage Loans. The Seller will provide information and otherwise
cooperate with the due diligence reviews of the Purchaser, its co-investor's,
its financial partner's, and the rating agencies. The Seller shall make the
legal files and the credit files, together with any payment histories,
collection histories, bankruptcy histories, broker's price opinions, to the
extent available, and any other information with respect to the Mortgage Loans
requested by the Purchaser, available at the Seller's offices for review by
Purchaser or its agents during normal business hours before the related Closing
Date. The Purchaser shall have the right to order additional broker's price
opinions in its sole discretion at the Purchaser's expense.
The Purchaser shall have the right to reject any Mortgage Loan (a)
for which the documentation listed in Subsection 6.03 is missing or defective in
whole or in part, (b) for which the related broker's price opinion is below the
appraisal provided in connection with the origination of the related Mortgage
Loan, (c) for which the loan-to-value ratio calculated based upon the broker's
price opinion is greater than 100%, (d) which does not conform to the Seller's
underwriting guidelines, (e) which does not conform to the terms of the related
Purchase Price and Terms Letter or is in breach of the representations and
warranties set forth in this Purchase Agreement, or (f) for which the credit or
compliance characteristics do not conform to the terms of any applicable
federal, state or local law or regulation. The Purchaser shall use its best
efforts to notify the Seller of any such rejected Mortgage Loan immediately upon
discovery.
The fact that the Purchaser has conducted or failed to conduct any
partial or complete examination of the files shall not affect the Purchaser's
(or any of its successor's) rights to demand repurchase or other relief for
breach of Mortgage Loan representations and warranties, missing or defective
documents or as otherwise provided in this Agreement; provided, however, that
Purchaser may not demand repurchase or other relief or remedy on the basis that
a Mortgage Loan examined by Purchaser or its designee prior to purchase does not
comply with the Underwriting Guidelines.
Subsection 9.06 Prepayments in Full.
With respect to any Mortgage Loan which prepays in full on or prior
to the date which is the earlier of six (6) months after the related Closing
Date or (b) the date of the related net interest margin securitization, the
Seller shall pay the Purchaser, within two (2) Business Days of such prepayment
in full, (a) with respect to any Mortgage Loan without a Prepayment Penalty, an
amount equal to the difference between (i) the Purchase Price (as adjusted) for
such Mortgage Loan and (ii) the outstanding principal balance of such Mortgage
Loan as of the Cut-off Date, and (b) with respect to any Mortgage Loan with a
Prepayment Penalty, an amount equal to the difference between (i) the Purchase
Price (as adjusted) for such Mortgage Loan and (ii) the sum of the outstanding
principal balance of such Mortgage Loan as of the related Cut-off Date and the
Prepayment Penalty contractually due (regardless of whether modified, altered,
waived or not collected by the related Successor Servicer).
SECTION 10. Closing.
The closing for the purchase and sale of the Mortgage Loans in each
Mortgage Loan Package shall take place on the related Closing Date. At the
Purchaser's option, the Closing shall be either: by telephone, confirmed by
letter or wire as the parties shall agree, or conducted in person, at such place
as the parties shall agree.
The closing for the Mortgage Loans to be purchased on each Closing
Date shall be subject to each of the following conditions:
(A) at least two (2) Business Days prior to the related Closing
Date or such later date on which the Purchaser has identified
to the Seller the final list of Mortgage Loans the Purchaser
desires to purchase, the Seller shall deliver to the Purchaser
via electronic medium a Mortgage Loan Schedule acceptable to
the Purchaser;
(B) all of the representations and warranties of the Seller under
this Agreement shall be true and correct as of the related
Closing Date and no event shall have occurred which, with
notice or the passage of time, would constitute a default
under this Agreement;
(C) the Purchaser shall have received, or the Purchaser's
attorneys shall have received in escrow, all Closing Documents
as specified in Section 11 of this Agreement, in such forms as
are agreed upon and reasonably acceptable to the Purchaser,
duly executed by all signatories other than the Purchaser as
required pursuant to the terms hereof;
(D) the Seller shall have delivered and released to the Custodian
all documents required hereunder; and
(E) all other terms and conditions of this Agreement and the
related Purchase Price and Terms Agreement shall have been
complied with.
Subject to the foregoing conditions, the Purchaser shall pay to
the Seller on the related Closing Date the Purchase Price, plus accrued interest
pursuant to Section 4 of this Agreement, by wire transfer of immediately
available funds to the account(s) designated by the Seller.
SECTION 11. Closing Documents.
(a) The Closing Documents for the Mortgage Loans to be purchased on
the initial Closing Date shall consist of fully executed originals of the
following documents:
1. this Agreement;
2. the Interim Servicing Agreement, any account certifications
and all other documents required thereunder;
3. an Officer's Certificate, in the form of Exhibit C hereto with
respect to the Seller, including all attachments thereto;
4. an Opinion of Counsel of the Seller (who may be an employee of
the Seller), in the form of Exhibit D hereto ("Opinion of
Counsel of the Seller");
5. a Security Release Certification, substantially in the form of
Exhibit E or F, as applicable, hereto executed by any person,
as requested by the Purchaser, if any of the Mortgage Loans
have at any time been subject to any security interest, pledge
or hypothecation for the benefit of such person;
6. the Underwriting Guidelines to be attached hereto as Exhibit
J;
7. a Servicer Acknowledgment in form of Exhibit L hereto; and
8. a certificate or other evidence of merger or change of name,
signed or stamped by the applicable regulatory authority, if
any of the Mortgage Loans were acquired by the Seller by
merger or acquired or originated by the Seller while
conducting business under a name other than its present name,
if applicable.
(b) The Closing Documents to be delivered on each Closing Date shall
consist of fully executed originals of the following documents:
1. an Assignment and Conveyance in the form of Exhibit N hereto,
including all exhibits;
2. a Purchase Price and Terms Agreement;
3. the related Mortgage Loan Schedule, with one copy to be
attached to the related Assignment and Conveyance;
4. each of the documents required to be delivered by the Seller
pursuant to Subsection 6.03 hereof;
5. the initial certification of the Custodian with respect to the
related Mortgage Loan Package;
6. a Security Release Certification, substantially in the form of
Exhibit E or F, as applicable, hereto executed by any person,
as requested by the Purchaser, if any of the Mortgage Loans
have at any time been subject to any security interest, pledge
or hypothecation for the benefit of such person;
7. a certificate or other evidence of merger or change of name,
signed or stamped by the applicable regulatory authority, if
any of the Mortgage Loans were acquired by the Seller by
merger or acquired or originated by the Seller while
conducting business under a name other than its present name,
if applicable; and
8. if requested by the Purchaser in connection with a material
change in Seller's financial condition or corporate structure,
an updated Officer's Certificate, in the form of Exhibit C
hereto, including all attachments thereto and an updated
Opinion of Counsel of the Seller, in the form of Exhibit D
hereto.
The Seller shall bear the risk of loss of the closing documents
until such time as they are received by the Purchaser or its attorneys.
SECTION 12. Costs.
The Purchaser shall pay its due diligence fees and the fees and
expenses of its counsel. All servicing fees incurred prior to the related
Closing Date, and all costs and expenses incurred in connection with the
transfer of the Mortgage Loans, fees to transfer files and prepare
assignments/endorsements, all initial recording fees, if any, for the
assignments of mortgage for all Mortgage Loans not recorded in the name of MERS,
all fees, if any, for transferring record ownership on the MERS(R) System of
Mortgage Loans recorded in the name of MERS, custodial fees, including the costs
associated with clearing exceptions, (including costs to record intervening
assignments and any existing assumption and modification agreements), together
with the fees and expenses of Seller's counsel, shall be payable by the Seller.
SECTION 13. Cooperation of Seller with a Reconstitution.
The Seller and the Purchaser agree that with respect to some or all
of the Mortgage Loans, after the related Closing Date, on one or more dates
(each a "Reconstitution Date") at the Purchaser's sole option, the Purchaser may
effect a sale (each, a "Reconstitution") of some or all of the Mortgage Loans
then subject to this Agreement, without recourse, to:
(i) Xxxxxx Xxx under its Cash Purchase Program or MBS Program
(Special Servicing Option) (each a "Xxxxxx Xxx Transfer");
or
(ii) Freddie Mac (the "Freddie Mac Transfer"); or
(iii) one or more third party purchasers in one or more Whole
Loan Transfers; or
(iv) one or more trusts or other entities to be formed as part
of one or more Securitization Transactions; provided that,
with respect to each Mortgage Loan Package, the Purchaser
shall not enter into more than five Reconstitutions per
pool of the Mortgage Loans in the first year after the
related Closing Date.
The Seller agrees to execute in connection with any Reconstitution,
any and all pool purchase contracts, and/or agreements reasonably acceptable to
the Seller among the Purchaser, the Seller and any servicer in connection with a
Whole Loan Transfer, a seller's warranties and servicing agreement or a
participation and servicing agreement in form and substance reasonably
acceptable to the Seller, and in connection with a Securitization Transaction, a
pooling and servicing agreement in form and substance reasonably acceptable to
the Seller (collectively the agreements referred to herein are designated, the
"Reconstitution Agreements"); provided that such agreements will not contain
servicing provisions providing for any substantially greater obligations of,
impose no greater duties, liabilities, or substantially lower benefits to, the
Seller than those contained in this Agreement subject to reasonable additional
requirements that are the standard common practice in the market (and with
respect to representations and warranties, capable of being made as of the
Closing Date).
With respect to each Whole Loan Transfer and each Securitization
Transaction entered into by the Purchaser, the Seller agrees (1) to cooperate
fully with the Purchaser and any prospective purchaser with respect to all
reasonable requests and due diligence procedures; (2) to execute, deliver and
perform all Reconstitution Agreements required by the Purchaser and deliver an
opinion of counsel in form and substance satisfactory to the Purchaser if
requested by the Purchaser; and (3)(a) to restate the Non-Servicing Related
Representations and Warranties as of the applicable Reconstitution Date in
connection with such Reconstitution and (b) to restate the Servicing-Related
Representations and Warranties, as of the last date of the interim servicing
period, modified (with respect to any restatement under clause (a) or (b) above)
to the extent necessary in any case to reflect changed circumstances or events
after the Closing Date and the pool statistics of the Mortgage Loans as of the
date of such restatement.
The Seller shall use its reasonable best efforts to provide to such
master servicer or issuer, as the case may be, and any other participants in
such Reconstitution: (i) any and all information and appropriate verification of
information which may be reasonably available to the Seller or its affiliates,
whether through letters of its auditors and counsel or otherwise, as the
Purchaser or any such other participant shall request; (ii) such additional
representations, warranties, covenants, opinions of counsel, letters from
auditors, and certificates of public officials or officers of the Seller as are
reasonably believed necessary by the Purchaser or any such other participant;
and (iii) to execute, deliver and satisfy all conditions set forth in an
indemnity agreement substantially in the form of Exhibit O hereto. The Seller
shall indemnify the Purchaser, each Affiliate designated by the Purchaser, each
Person who controls the Purchaser or such Affiliate and the Successor Servicer
and hold each of them harmless from and against any losses, damages, penalties,
fines, forfeitures, reasonable and necessary legal fees and related costs,
judgments, and any other costs, fees and expenses that each of them may sustain
in any way related to any information provided by or on behalf of the Seller
regarding the Seller (or if the Seller is not the originator, the originator of
the Mortgage Loans), the Seller's servicing practices or performance, the
Mortgage Loans or the Underwriting Guidelines set forth in any offering document
prepared in connection with any Reconstitution. For purposes of the previous
sentence, "Purchaser" shall mean the Person then acting as the Purchaser under
this Agreement and any and all Persons who previously were "Purchasers" under
this Agreement and "Successor Servicer" shall mean the Person then acting as the
Successor Servicer under this Agreement and any and all Persons who previously
were "Successor Servicers" under this Agreement. Moreover, the Seller agrees to
cooperate with all reasonable requests made by the Purchaser to effect such
Reconstitution Agreements.
In the event the Purchaser has elected to have the Seller hold
record title to the Mortgages, prior to the Reconstitution Date, the Seller
shall prepare an assignment of mortgage in blank or to the prospective purchaser
or trustee, as applicable, from the Seller acceptable to the prospective
purchaser or trustee, as applicable, for each Mortgage Loan that is part of the
Reconstitution and shall pay all preparation and recording costs associated
therewith. In connection with the Reconstitution, the Seller shall execute each
assignment of mortgage, track such Assignments of Mortgage to ensure they have
been recorded and deliver them as required by the prospective purchaser or
trustee, as applicable, upon the Seller's receipt thereof. Additionally, the
Seller shall prepare and execute, at the direction of the Purchaser, any note
endorsement in connection with any and all seller/servicer agreements.
All Mortgage Loans not sold or transferred pursuant to a
Reconstitution shall remain subject to this Agreement and with respect thereto
this Agreement shall remain in full force and effect.
SECTION 14. The Seller.
Subsection 14.01 Additional Indemnification by the Seller; Third
Party Claims.
The Seller shall indemnify the Purchaser and hold it harmless
against any and all claims, losses, damages, penalties, fines, forfeitures,
legal fees (including (without limitation) legal fees incurred in connection
with the enforcement of the Seller's indemnification obligation under this
Subsection 14.01) and related costs, judgments, and any other costs, fees and
expenses that the Purchaser or the Successor Servicer may sustain in any way
related to (a) any breach of any of Seller's representations, warranties or
covenants set forth in this Agreement, (b) the failure of the Seller to perform
its duties under this Agreement or (c) the failure of the Seller to service the
Mortgage Loans in strict compliance with the terms of the Interim Servicing
Agreement or any Reconstitution Agreement entered into pursuant to Section 13.
The Seller immediately shall notify the Purchaser if a claim is made by a third
party with respect to this Agreement or any Reconstitution Agreement or the
Mortgage Loans, assume (with the prior written consent of the Purchaser) the
defense of any such claim and pay all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and satisfy any judgment or
decree which may be entered against it or the Purchaser in respect of such
claim. The Purchaser promptly shall reimburse the Seller for all amounts
advanced by it pursuant to the preceding sentence, except when the claim is in
any way related to the Seller's indemnification pursuant to Section 9 or the
first sentence of this Subsection 14.01, or is in any way related to the failure
of the Seller to service and administer the Mortgage Loans in strict compliance
with the terms of this Agreement or any Reconstitution Agreement.
Subsection 14.02 Merger or Consolidation of the Seller.
The Seller will keep in full effect its existence, rights and
franchises as a corporation under the laws of the state of its incorporation
except as permitted herein, and will obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its duties under this Agreement.
Any Person into which the Seller may be merged or consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
the Seller shall be a party, or any Person succeeding to the business of the
Seller, shall be the successor of the Seller hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided, however, that the
successor or surviving Person shall have a net worth of at least $25,000,000.
SECTION 15. Financial Statements.
The Seller understands that in connection with the Purchaser's
marketing of the Mortgage Loans, the Purchaser shall make available to
prospective purchasers audited financial statements of the Seller for the most
recently completed three (3) fiscal years respecting which such statements are
available, as well as a Consolidated Statement of Condition of the Seller at the
end of the last two (2) fiscal years covered by such Consolidated Statement of
Operations. The Seller shall also make available any comparable interim
statements to the extent any such statements have been prepared by the Seller
(and are available upon request to members or stockholders of the Seller or the
public at large). The Seller, if it has not already done so, agrees to furnish
promptly to the Purchaser copies of the statements specified above. The Seller
shall also make available information on its servicing performance with respect
to loans serviced for others, including delinquency ratios.
The Seller also agrees to allow reasonable access to a knowledgeable
financial or accounting officer for the purpose of answering questions asked by
any prospective purchaser regarding recent developments affecting the Seller or
the financial statements of the Seller.
SECTION 16. Mandatory Delivery.
The sale and delivery on the related Closing Date of the Mortgage
Loans is mandatory from and after the date of the execution of the related
Purchase Price and Terms Agreement, it being specifically understood and agreed
that each Mortgage Loan is unique and identifiable on the date hereof and that
an award of money damages would be insufficient to compensate the Purchaser for
the losses and damages incurred by the Purchaser (including damages to
prospective purchasers of the Mortgage Loans) in the event of the Seller's
failure to deliver (i) each of the related Mortgage Loans or (ii) one or more
Mortgage Loans otherwise acceptable to the Purchaser on or before the related
Closing Date.
SECTION 17. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed, by registered or
certified mail, return receipt requested, or, if by other means, when received
by the other party at the address as follows:
(i) if to the Seller:
Meritage Mortgage Corporation
0000 XX Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxx 00000
Attention: Xxxx Xxxxxxx
With copies to:
RBMG, Inc
0000 Xxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Director of Loan Administration
cc: Chief Legal Counsel
For issues of Repurchases a copy to:
Meritage Mortgage Corporation
0000 Xxxxxxxxx Xxx
Xxxxxxxxxxxx, XX 00000
Attn: Capital Markets
(ii) if to the Purchaser:
Xxxxxxx Xxxxx Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
or such other address as may hereafter be furnished to the other party by like
notice. Any such demand, notice or communication hereunder shall be deemed to
have been received on the date delivered to or received at the premises of the
addressee (as evidenced, in the case of registered or certified mail, by the
date noted on the return receipt).
SECTION 18. Severability Clause.
Any part, provision representation or warranty of this Agreement
which is prohibited or unenforceable or is held to be void or unenforceable in
any jurisdiction shall be ineffective, as to such jurisdiction, to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof. If the invalidity of any
part, provision, representation or warranty of this Agreement shall deprive any
party of the economic benefit intended to be conferred by this Agreement, the
parties shall negotiate, in good-faith, to develop a structure the economic
effect of which is nearly as possible the same as the economic effect of this
Agreement without regard to such invalidity.
SECTION 19. Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
SECTION 20. Governing Law.
This Agreement shall be deemed in effect when a fully executed
counterpart thereof is received by the Purchaser in the State of New York and
shall be deemed to have been made in the State of New York. The Agreement shall
be construed in accordance with the laws of the State of New York and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with the substantive laws of the State of New York (without regard to
conflicts of laws principles), except to the extent preempted by federal law.
SECTION 21. Intention of the Parties.
It is the intention of the parties that the Purchaser is
purchasing, and the Seller is selling the Mortgage Loans and not a debt
instrument of the Seller or another security. Accordingly, the parties hereto
each intend to treat the transaction for federal income tax purposes as a sale
by the Seller, and a purchase by the Purchaser, of the Mortgage Loans. Moreover,
the arrangement under which the Mortgage Loans are held shall be consistent with
classification of such arrangement as a grantor trust in the event it is not
found to represent direct ownership of the Mortgage Loans. The Purchaser shall
have the right to review the Mortgage Loans and the related Mortgage Loan Files
to determine the characteristics of the Mortgage Loans which shall affect the
federal income tax consequences of owning the Mortgage Loans and the Seller
shall cooperate with all reasonable requests made by the Purchaser in the course
of such review.
SECTION 22. Successors and Assigns; Assignment of Purchase
Agreement.
This Agreement shall bind and inure to the benefit of and be
enforceable by the Seller and the Purchaser and the respective permitted
successors and assigns of the Seller and the successors and assigns of the
Purchaser. This Agreement shall not be assigned, pledged or hypothecated by the
Seller to a third party without the prior written consent of the Purchaser,
which consent may be withheld by the Purchaser in its sole discretion. This
Agreement may be assigned, pledged or hypothecated by the Purchaser in whole or
in part, and with respect to one or more of the Mortgage Loans, without the
consent of the Seller. If the Purchaser assigns any or all of its rights as
Purchaser hereunder, the assignee of the Purchaser will become the "Purchaser"
hereunder to the extent of such assignment. Any such assignment by the Purchaser
shall be accompanied by the delivery and execution of an Assignment and
Assumption Agreement (the "Assignment and Assumption Agreement") in the form
attached hereto as Exhibit G.
SECTION 23. Waivers.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced.
SECTION 24. Exhibits.
The exhibits to this Agreement are hereby incorporated and made a
part hereof and are an integral part of this Agreement.
SECTION 25. General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Agreement have the meanings assigned
to them in this Agreement and include the plural as well as the singular, and
the use of any gender herein shall be deemed to include the other gender;
(b) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
(c) references herein to "Articles," "Sections," "Subsections,"
"Paragraphs," and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other subdivisions of
this Agreement;
(d) reference to a Subsection without further reference to a Section
is a reference to such Subsection as contained in the same Section in which the
reference appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(e) the words "herein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision; and
(f) the term "include" or "including" shall mean without limitation
by reason of enumeration.
SECTION 26. Reproduction of Documents.
This Agreement and all documents relating thereto, including,
without limitation, (a) consents, waivers and modifications which may hereafter
be executed, (b) documents received by any party at the closing, and (c)
financial statements, certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties agree
that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the original
is in existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
SECTION 27. Further Agreements.
The Seller and the Purchaser each agree to execute and deliver to
the other such reasonable and appropriate additional documents, instruments or
agreements as may be necessary or appropriate to effectuate the purposes of this
Agreement.
SECTION 28. Recordation of Assignments of Mortgage.
To the extent permitted by applicable law, for Mortgage Loans which
are not registered with MERS, each of the Assignments of Mortgage is subject to
recordation in all appropriate public offices for real property records in all
the counties or their comparable jurisdictions in which any or all of the
Mortgaged Properties are situated, and in any other appropriate public recording
office or elsewhere, such recordation to be effected one time at the Seller's
expense in the event recordation is either necessary under applicable law or
requested by the Purchaser (which request may be made by the Purchaser at any
time following the related Closing Date) at its sole option.
SECTION 29. No Solicitation.
From and after the related Closing Date, the Seller agrees that it
will not take any action or permit or cause any action to be taken by any of its
agents or affiliates, or by any independent contractors on the Seller's behalf,
to personally, by telephone or mail, solicit the Mortgagor under any Mortgage
Loan for any purpose whatsoever, including to refinance a Mortgage Loan, in
whole or in part, without the prior written consent of the Purchaser. It is
understood and agreed that all rights and benefits relating to the solicitation
of any Mortgagors and the attendant rights, title and interest in and to the
list of such Mortgagors and data relating to their Mortgages (including
insurance renewal dates) shall be transferred to the Purchaser pursuant hereto
on the related Closing Date and the Seller shall take no action to undermine
these rights and benefits. Notwithstanding the foregoing, it is understood and
agreed that promotions undertaken by the Seller or any affiliate of the Seller
which are directed to the general public at large, including, without
limitation, mass mailing, internet and e-mail solicitations, based in all
instances, on commercially acquired mailing lists (which may not be specifically
targeted at the Mortgagors) and newspaper, radio, Seller or its affiliate's
website and television advertisements shall not constitute solicitation under
this Section 29.
SECTION 30. Waiver of Trial by Jury.
THE SELLER AND THE PURCHASER EACH KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 31. Submission to Jurisdiction; Waivers.
The Seller hereby irrevocably and unconditionally:
(A) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY
JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK, THE FEDERAL COURTS OF THE UNITED STATES OF
AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY
THEREOF;
(B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN
SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY
SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT
COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR
ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET
FORTH HEREIN OR AT SUCH OTHER ADDRESS OF WHICH THE PURCHASER SHALL HAVE BEEN
NOTIFIED; AND
(D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT
TO SUE IN ANY OTHER JURISDICTION.
SECTION 32. Confidential Information.
The Seller and Purchaser understand and agree that this Agreement,
any other agreements executed in connection with the sale contemplated
hereunder, any agreements executed in connection with any Reconstitution, and
any offering circulars or other disclosure documents produced in connection with
any Reconstitution are confidential and proprietary to the Purchaser or Seller,
and the Seller and Purchaser agree to hold such documents confidential and not
to divulge such documents to anyone except (a) to the extent required by law or
judicial order or to enforce its rights or remedies under this Agreement, (b) to
the extent such information enters into the public domain other than through the
wrongful act of the Seller or the Purchaser, as the case may be, (c) as is
necessary in working with legal counsel, rating agencies, auditors, agents,
taxing authorities or other governmental agencies or (d) the federal income tax
treatment of the transactions hereunder, any fact relevant to understanding the
federal tax treatment of the transactions hereunder, and all materials of any
kind (including opinions or other tax analyses) relating to such federal income
tax treatment; provided that the Seller may not disclose the name of or
identifying information with respect to Purchaser or any pricing terms or other
nonpublic business or financial information that is unrelated to the purported
or claimed federal income tax treatment of the transactions hereunder and is not
relevant to understanding the purported or claimed federal income tax treatment
of the transactions hereunder.
SECTION 33. Compliance with Regulation AB.
Subsection 33.01 Intent of the Parties; Reasonableness.
The Purchaser and the Seller acknowledge and agree that the purpose
of Section 33 of this Agreement is to facilitate compliance by the Purchaser and
any Depositor with the provisions of Regulation AB and related rules and
regulations of the Commission. Neither the Purchaser nor any Depositor shall
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 thereunder. The Seller 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 asset-backed securities markets, advice of counsel, or otherwise, and
agrees to comply with requests made by the Purchaser or any Depositor in good
faith for delivery of information under these provisions on the basis of
evolving interpretations of Regulation AB. In connection with any Securitization
Transaction, the Seller shall cooperate fully with the Purchaser to deliver to
the Purchaser (including any of its assignees or designees) and any Depositor,
any and all statements, reports, certifications, records and any other
information necessary in the reasonable good faith determination of the
Purchaser or any Depositor to permit the Purchaser or such Depositor to comply
with the provisions of Regulation AB, together with such disclosures relating to
the Seller, any Third-Party Originator and the Mortgage Loans, or the servicing
of the Mortgage Loans, reasonably believed by the Purchaser or any Depositor to
be necessary in order to effect such compliance.
With respect to those Mortgage Loans that were originated by Seller
and sold to the Purchaser pursuant to this Agreement and subsequently
securitized by the Purchaser or any of its Affiliates, the Purchaser shall, to
the extent consistent with then-current industry practice, cause the servicer
(or another party to such securitization) under the securitization to be
obligated to provide, information with respect to the Mortgage Loans from and
after cut-off date of such securitization necessary for the Seller to comply
with its obligations under Regulation AB, including, without limitation,
providing to the Seller static pool information, as set forth in Item 1105(a)(2)
and (5) of Regulation AB.
Subsection 33.02 Additional Representations and Warranties of the
Seller.
(a) The Seller shall be deemed to represent to the Purchaser and to
any Depositor, as of the date on which information is first provided to the
Purchaser or any Depositor under Subsection 33.03 that, except as disclosed in
writing to the Purchaser or such Depositor prior to such date: (i) there are no
material legal or governmental proceedings pending (or known to be contemplated)
against the Seller or any Third-Party Originator and (ii) there are no
affiliations, relationships or transactions relating to the Seller or any
Third-Party Originator with respect to any Securitization Transaction and any
party thereto identified by the related Depositor of a type described in Item
1119 of Regulation AB.
(b) If so requested by the Purchaser or any Depositor on any date
following the date on which information is first provided to the Purchaser or
any Depositor under Subsection 33.03, the Seller shall, within five (5) 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
request, provide reasonably adequate disclosure of the pertinent facts, in
writing, to the requesting party.
Subsection 33.03 Information To Be Provided by the Seller.
In connection with any Securitization Transaction the Seller shall
(i) within five (5) Business Days following request by the Purchaser or any
Depositor, provide to the Purchaser and such Depositor (or, as applicable, cause
each Third-Party Originator to provide), in writing and in form and substance
reasonably satisfactory to the Purchaser and such Depositor, the information and
materials specified in paragraphs (a) and (b) of this Subsection and (ii) as
promptly as practicable following notice to or discovery by the Seller, provide
to the Purchaser and any Depositor, in writing and in form and substance
reasonably satisfactory to the Purchaser and such Depositor, the information
specified in paragraph (d) of this Subsection.
(a) If so requested by the Purchaser or any Depositor, the Seller
shall provide such information regarding (i) the Seller, as originator of the
Mortgage Loans (including as an acquirer of Mortgage Loans from a Qualified
Correspondent) or (ii) each Third-Party Originator, as is requested for the
purpose of compliance with Items 1103(a)(1), 1105, 1110, 1117 and 1119 of
Regulation AB. Such information shall include, at a minimum:
(A) the originator's form of organization;
(B) a description of the originator's origination program and
how long the originator has been engaged in originating residential
mortgage loans, which description shall include a discussion of the
originator's experience in originating mortgage loans of a similar
type as the Mortgage Loans; information regarding the size and
composition of the originator's origination portfolio; and
information that may be material, in the good faith judgment of the
Purchaser or any Depositor, to an analysis of the performance of the
Mortgage Loans, including the originator's credit-granting or
underwriting criteria for mortgage loans of similar type(s) as the
Mortgage Loans and such other information as the Purchaser or any
Depositor may reasonably request for the purpose of compliance with
Item 1110(b)(2) of Regulation AB;
(C) a description of any material legal or governmental
proceedings pending (or known to be contemplated) against the Seller
and each Third-Party Originator; and
(D) a description of any affiliation or relationship between
the Seller, each Third-Party Originator and any of the following
parties to a Securitization Transaction, as such parties are
identified to the Seller by the Purchaser or any Depositor in
writing in advance of such Securitization Transaction:
(1) the sponsor;
(2) the depositor;
(3) the issuing entity;
(4) any servicer;
(5) any trustee;
(6) any originator;
(7) any significant obligor;
(8) any enhancement or support provider; and
(9) any other material transaction party.
(b) If so requested by the Purchaser or any Depositor, the Seller
shall provide (or, as applicable, cause each Third-Party Originator to provide)
Static Pool Information with respect to the mortgage loans (of a similar type as
the Mortgage Loans, as reasonably identified by the Purchaser as provided below)
originated by (i) the Seller, if the Seller is an originator of Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
and/or (ii) each Third-Party Originator. Such Static Pool Information shall be
prepared by the Seller (or Third-Party Originator) on the basis of its
reasonable, good faith interpretation of the requirements of Item 1105(a)(1)-(3)
of Regulation AB. To the extent that there is reasonably available to the Seller
(or Third-Party Originator) Static Pool Information with respect to more than
one mortgage loan type, the Purchaser or any Depositor shall be entitled to
specify whether some or all of such information shall be provided pursuant to
this paragraph. The content of such Static Pool Information may be in the form
customarily provided by the Seller, and need not be customized for the Purchaser
or any Depositor. Such Static Pool Information for each vintage origination year
or prior securitized pool, as applicable, shall be presented in increments no
less frequently than quarterly over the life of the mortgage loans included in
the vintage origination year or prior securitized pool. The most recent periodic
increment must be as of a date no later than 135 days prior to the date of the
prospectus or other offering document in which the Static Pool Information is to
be included or incorporated by reference. The Static Pool Information shall be
provided in an electronic format that provides a permanent record of the
information provided, such as a portable document format (pdf) file, or other
such electronic format reasonably required by the Purchaser or the Depositor, as
applicable.
Promptly following notice or discovery of a material error in Static
Pool Information provided pursuant to the immediately preceding paragraph
(including an omission to include therein information required to be provided
pursuant to such paragraph), the Seller shall provide corrected Static Pool
Information to the Purchaser or any Depositor, as applicable, in the same format
in which Static Pool Information was previously provided to such party by the
Seller.
If so requested by the Purchaser or any Depositor, the Seller shall
provide (or, as applicable, cause each Third-Party Originator to provide), at
the expense of the requesting party (to the extent of any additional incremental
expense associated with delivery pursuant to this Agreement), such agreed-upon
procedures letters of certified public accountants reasonably acceptable to the
Purchaser or Depositor, as applicable, pertaining to Static Pool Information
relating to prior securitized pools for securitizations closed on or after
January 1, 2006 or, in the case of Static Pool Information with respect to the
Seller's or Third-Party Originator's originations or purchases, to calendar
months commencing January 1, 2006, as the Purchaser or such Depositor shall
reasonably request. Such statements and letters shall be addressed to and be for
the benefit of such parties as the Purchaser or such Depositor shall designate,
which may include, by way of example, any Sponsor, any Depositor and any broker
dealer acting as underwriter, placement agent or initial purchaser with respect
to a Securitization Transaction. Any such statement or letter may take the form
of a standard, generally applicable document accompanied by a reliance letter
authorizing reliance by the addressees designated by the Purchaser or such
Depositor.
(c) [Reserved]
(d) If so requested by the Purchaser or any Depositor for the
purpose of satisfying its reporting obligation under the Exchange Act with
respect to any class of asset-backed securities, the Seller shall (or shall
cause each Third-Party Originator to) (i) notify the Purchaser and any Depositor
in writing of (A) any material litigation or governmental proceedings pending
against the Seller or any Third-Party Originator and (B) any affiliations or
relationships that develop following the closing date of a Securitization
Transaction between the Seller or any Third-Party Originator and any of the
parties specified in clause (D) of paragraph (a) of this Subsection (and any
other parties identified in writing by the requesting party) with respect to
such Securitization Transaction, and (ii) provide to the Purchaser and any
Depositor a description of such proceedings, affiliations or relationships.
Subsection 33.04 Indemnification.
The Seller shall indemnify the Purchaser, each affiliate of the
Purchaser and each of the following parties participating in a Securitization
Transaction: each sponsor and issuing entity; each Person responsible for the
preparation, execution or filing of any report required to be filed with the
Commission with respect to such Securitization Transaction, or for execution of
a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange
Act with respect to such Securitization Transaction; each broker dealer acting
as underwriter, placement agent or initial purchaser, each Person who controls
any of such parties or the Depositor (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act); and the respective present
and former directors, officers, employees and agents of each of the foregoing
and of the Depositor, 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:
(1)(A) any untrue statement of a material fact contained or alleged
to be contained in any information, report, certification, accountants'
letter or other material provided under this Section 33 by or on behalf of
the Seller, or provided under this Section 33 by or on behalf of any
Third-Party Originator (collectively, the "Seller Information"), or (B)
the omission or alleged omission to state in the Seller Information a
material fact required to be stated in the Seller Information or necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, by way of
clarification, that clause (B) of this paragraph shall be construed solely
by reference to the Seller Information and not to any other information
communicated in connection with a sale or purchase of securities, without
regard to whether the Seller Information or any portion thereof is
presented together with or separately from such other information;
(2) any failure by the Seller or any Third-Party Originator to
deliver any information, report, certification, accountants' letter or
other material when and as required under this Section 33; or
(3) any breach by the Seller of a representation or warranty set
forth in Subsection 33.02(a) or in a writing furnished pursuant to
Subsection 33.02(b) and made as of a date prior to the closing date of the
related Securitization Transaction, to the extent that such breach is not
cured by such closing date, or any breach by the Seller of a
representation or warranty in a writing furnished pursuant to Subsection
33.02(b) to the extent made as of a date subsequent to such closing date.
In the case of any failure of performance described in clause
(a)(ii) of this Section, the Seller shall promptly reimburse the Purchaser, any
Depositor, as applicable, and each Person responsible for the preparation,
execution or filing of any report required to be filed with the Commission with
respect to such Securitization Transaction, or for execution of a certification
pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect
to such Securitization Transaction, for all costs reasonably incurred by each
such party in order to obtain the information, report, certification,
accountants' letter or other material not delivered as required by the Seller or
any Third-Party Originator.
[Signatures Commence on Following Page]
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the date first above written.
XXXXXXX XXXXX MORTGAGE COMPANY,
a New York limited partnership
(Purchaser)
By: XXXXXXX XXXXX REAL ESTATE
FUNDING CORP., a New York
corporation, as General Partner
By:_____________________________
Name:___________________________
Title:__________________________
MERITAGE MORTGAGE CORPORATION
(Seller)
By:_________________________________
Name:_______________________________
Title:______________________________
Exhibit A
EXHIBIT A
CONTENTS OF EACH MORTGAGE FILE
------------------------------
With respect to each Mortgage Loan, the Mortgage File shall include
each of the following items, which shall be available for inspection by the
Purchaser and any prospective Purchaser, and which shall be delivered to the
Custodian, or to such other Person as the Purchaser shall designate in writing,
pursuant to Section 6 of the Amended and Restated Flow Mortgage Loan Purchase
and Warranties Agreement to which this Exhibit is attached (the "Agreement"):
(a) the original Mortgage Note bearing all intervening endorsements,
endorsed "Pay to the order of _________, without recourse" and signed in
the name of the last endorsee (the "Last Endorsee") by an authorized
officer. To the extent that there is no room on the face of the Mortgage
Notes for endorsements, the endorsement may be contained on an allonge, if
state law so allows and the Custodian is so advised by the Seller that
state law so allows. If the Mortgage Loan was acquired by the Seller in a
merger, the endorsement must be by "[Last Endorsee], successor by merger
to [name of predecessor]". If the Mortgage Loan was acquired or originated
by the Last Endorsee while doing business under another name, the
endorsement must be by "[Last Endorsee], formerly known as [previous
name]";
(b) the original of any guarantee executed in connection with the
Mortgage Note;
(c) the original Mortgage with evidence of recording thereon. If in
connection with any Mortgage Loan, the Seller cannot deliver or cause to
be delivered the original Mortgage with evidence of recording thereon on
or prior to the related Closing Date because of a delay caused by the
public recording office where such Mortgage has been delivered for
recordation or because such Mortgage has been lost or because such public
recording office retains the original recorded Mortgage, the Seller shall
deliver or cause to be delivered to the Custodian, a photocopy of such
Mortgage, together with (i) in the case of a delay caused by the public
recording office, an Officer's Certificate of the Seller (or certified by
the title company, escrow agent, or closing attorney) stating that such
Mortgage has been dispatched to the appropriate public recording office
for recordation and that the original recorded Mortgage or a copy of such
Mortgage certified by such public recording office to be a true and
complete copy of the original recorded Mortgage will be promptly delivered
to the Custodian upon receipt thereof by the Seller; or (ii) in the case
of a Mortgage where a public recording office retains the original
recorded Mortgage or in the case where a Mortgage is lost after
recordation in a public recording office, a copy of such Mortgage
certified by such public recording office to be a true and complete copy
of the original recorded Mortgage;
(d) the originals of all assumption, modification, consolidation or
extension agreements, if any, with evidence of recording thereon;
(e) except with respect to each MERS Designated Mortgage Loan, the
original Assignment of Mortgage for each Mortgage Loan, in form and
substance acceptable for recording. The Assignment of Mortgage must be
duly recorded only if recordation is either necessary under applicable law
or commonly required by private institutional mortgage investors in the
area where the Mortgaged Property is located or on direction of the
Purchaser as provided in this Agreement. If the Assignment of Mortgage is
to be recorded, the Mortgage shall be assigned to the Purchaser. If the
Assignment of Mortgage is not to be recorded, the Assignment of Mortgage
shall be delivered in blank. If the Mortgage Loan was acquired by the
Seller in a merger, the Assignment of Mortgage must be made by "Meritage
Mortgage Corporation, successor by merger to [name of predecessor]". If
the Mortgage Loan was acquired or originated by the Seller while doing
business under another name, the Assignment of Mortgage must be by
"Meritage Mortgage Corporation, formerly known as [previous name]";
(f) the originals of all intervening assignments of mortgage (if
any) evidencing a complete chain of assignment from the originator to the
Last Endorsee (or to MERS with respect to each MERS Designated Mortgage
Loan) with evidence of recording thereon, or if any such intervening
assignment has not been returned from the applicable recording office or
has been lost or if such public recording office retains the original
recorded assignments of mortgage, the Seller shall deliver or cause to be
delivered to the Custodian, a photocopy of such intervening assignment,
together with (i) in the case of a delay caused by the public recording
office, an Officer's Certificate of the Seller (or certified by the title
company, escrow agent, or closing attorney) stating that such intervening
assignment of mortgage has been dispatched to the appropriate public
recording office for recordation and that such original recorded
intervening assignment of mortgage or a copy of such intervening
assignment of mortgage certified by the appropriate public recording
office to be a true and complete copy of the original recorded intervening
assignment of mortgage will be promptly delivered to the Custodian upon
receipt thereof by the Seller; or (ii) in the case of an intervening
assignment where a public recording office retains the original recorded
intervening assignment or in the case where an intervening assignment is
lost after recordation in a public recording office, a copy of such
intervening assignment certified by such public recording office to be a
true and complete copy of the original recorded intervening assignment;
(g) The original mortgagee policy of title insurance or, in the
event such original title policy is unavailable, a certified true copy of
the related policy binder or commitment for title certified to be true and
complete by the title insurance company; and
(h) security agreement, chattel mortgage or equivalent document
executed in connection with the Mortgage.
In the event an Officer's Certificate of the Seller is delivered to
the Purchaser because of a delay caused by the public recording office in
returning any recorded document, the Seller shall deliver to the Purchaser,
within ninety (90) days of the related Closing Date, an Officer's Certificate
which shall (i) identify the recorded document, (ii) state that the recorded
document has not been delivered to the Custodian due solely to a delay caused by
the public recording office, (iii) state the amount of time generally required
by the applicable recording office to record and return a document submitted for
recordation, and (iv) specify the date the applicable recorded document will be
delivered to the Custodian. An extension of the date specified in (iv) above may
be requested from the Purchaser, which consent shall not be unreasonably
withheld.
Exhibit B
EXHIBIT B
CONTENTS OF EACH CREDIT FILE
----------------------------
(a) The original hazard insurance policy and, if required by law,
flood insurance policy.
(b) Residential loan application.
(c) Mortgage Loan closing statement.
(d) Verification of employment and income (except for Mortgage Loans
originated under a Limited Documentation Program).
(e) Verification of acceptable evidence of source and amount of
downpayment.
(f) Credit report on the Mortgagor.
(g) Residential appraisal report, if available.
(h) Photograph of the Mortgaged Property.
(i) Survey of the Mortgaged Property, if any.
(j) Copy of each instrument necessary to complete identification of
any exception set forth in the exception schedule in the title policy,
i.e., map or plat, restrictions, easements, sewer agreements, home
association declarations, etc.
(k) All required disclosure statements.
(l) If available, termite report, structural engineer's report,
water potability and septic certification.
(m) Sales contract, if applicable.
(n) Tax receipts, insurance premium receipts, ledger sheets, payment
history from date of origination, insurance claim files, correspondence,
current and historical computerized data files, and all other processing,
underwriting and closing papers and records which are customarily
contained in a mortgage loan file and which are required to document the
Mortgage Loan or to service the Mortgage Loan.
(o) Amortization schedule, if applicable.
Exhibit C
EXHIBIT C
SELLER'S OFFICER'S CERTIFICATE
------------------------------
I, ____________________, hereby certify that I am the duly elected
[Vice] President of Meritage Mortgage Corporation, a state chartered institution
organized under the laws of the state of Oregon (the "Company") and further as
follows:
1. Attached hereto as Exhibit 1 is a true, correct and complete copy
of the charter of the Company which is in full force and effect on the
date hereof and which has been in effect without amendment, waiver,
rescission or modification since _____________.
2. Attached hereto as Exhibit 2 is a true, correct and complete copy
of the bylaws of the Company which are in effect on the date hereof and
which have been in effect without amendment, waiver, rescission or
modification since ___________.
3. Attached hereto as Exhibit 3 is an original certificate of good
standing of the Company issued within ten (10) days of the date hereof,
and no event has occurred since the date thereof which would impair such
standing.
4. Attached hereto as Exhibit 4 is a true, correct and complete copy
of the corporate resolutions of the Board of Directors of the Company
authorizing the Company to execute and deliver each of the Amended and
Restated Flow Mortgage Loan Purchase and Warranties Agreement, dated as of
November 1, 2005, by and between Xxxxxxx Xxxxx Mortgage Company (the
"Purchaser") and the Company (the "Purchase Agreement"), the Flow Interim
Servicing Agreement, dated as of July 1, 2005, by and between the
Purchaser and the Company (the "Servicing__Agreement", together with the
Purchase Agreement, the "Agreements"), and to endorse the Mortgage Notes
and execute the Assignments of Mortgages by original or facsimile
signature, and such resolutions are in effect on the date hereof and have
been in effect without amendment, waiver, rescission or modification since
____________.
5. Either (i) no consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Company of or compliance by the Company
with the Agreements, the sale of the mortgage loans or the consummation of
the transactions contemplated by the agreements; or (ii) any required
consent, approval, authorization or order has been obtained by the
Company.
6. Neither the consummation of the transactions contemplated by, nor
the fulfillment of the terms of the Agreements conflicts or will conflict
with or results or will result in a breach of or constitutes or will
constitute a default under the charter or by-laws of the Company, the
terms of any indenture or, to the best of the Company's knowledge, other
agreement or instrument to which the Company is a party or by which it is
bound or to which it is subject, or any statute or order, rule,
regulations, writ, injunction or decree of any court, governmental
authority or regulatory body to which the Company is subject or by which
it is bound.
7. To the best of my knowledge, there is no action, suit, proceeding
or investigation pending or threatened against the Company which, in my
judgment, either in any one instance or in the aggregate, may result in
any material adverse change in the business, operations, financial
condition, properties or assets of the Company or in any material
impairment of the right or ability of the Company to carry on its business
substantially as now conducted or in any material liability on the part of
the Company or which would draw into question the validity of the
Agreements, or the mortgage loans or of any action taken or to be taken in
connection with the transactions contemplated hereby, or which would be
likely to impair materially the ability of the Company to perform under
the terms of the Agreements.
8. Each person listed on Exhibit 5 attached hereto who, as an
officer or representative of the Company, signed the Agreements and any
other document delivered or on the date hereof in connection with any
purchase described in the agreements set forth above was, at the
respective times of such signing and delivery, and is now, a duly elected
or appointed, qualified and acting officer or representative of the
Company, who holds the office set forth opposite his or her name on
Exhibit 5, and the signatures of such persons appearing on such documents
are their genuine signatures.
9. The Company is duly authorized to engage in the transactions
described and contemplated in the Agreements.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the
seal of the Company.
Dated:____________________ By:___________________________
Name:_________________________
[Seal] Title: [Vice] President
I, ________________________, an [Assistant] Secretary of
______________[COMPANY], hereby certify that ____________ is the duly elected,
qualified and acting [Vice] President of the Company and that the signature
appearing above is [her] [his] genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated:____________________ By:___________________________
Name:_________________________
Title: [Assistant] Secretary
EXHIBIT 5 to
Company's Officer's Certificate
NAME TITLE SIGNATURE
---- ----- ---------
____________________________ __________________________ ____________________
____________________________ __________________________ ____________________
____________________________ __________________________ ____________________
____________________________ __________________________ ____________________
____________________________ __________________________ ____________________
____________________________ __________________________ ____________________
____________________________ __________________________ ____________________
Exhibit D
EXHIBIT D
FORM OF OPINION OF COUNSEL TO THE SELLER
----------------------------------------
(date)
Xxxxxxx Xxxxx Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
You have requested [our] [my] opinion, as [Assistant] General
Counsel to Meritage Mortgage Corporation (the "Company"), with respect to
certain matters in connection with the sale by the Company of the Mortgage Loans
pursuant to that certain Amended and Restated Flow Mortgage Loan Purchase and
Warranties Agreement by and between the Company and Xxxxxxx Xxxxx Mortgage
Company (the "Purchaser"), dated as of November 1, 2005 (the "Purchase
Agreement"), which sale is in the form of whole loans and that certain Flow
Interim Servicing Agreement by and between the Company and Xxxxxxx Xxxxx
Mortgage Company (the "Purchaser"), dated as of July 1, 2005 (the "Servicing
Agreement", together with the Purchase Agreement, the "Agreements"). Capitalized
terms not otherwise defined herein have the meanings set forth in the Purchase
Agreement.
[We] [I] have examined the following documents:
1. the Agreements;
2. the form of Assignment of Mortgage;
3. the form of endorsement of the Mortgage Notes; and
4. such other documents, records and papers as we have deemed
necessary and relevant as a basis for this opinion.
To the extent [we] [I] have deemed necessary and proper, [we] [I]
have relied upon the representations and warranties of the Company contained in
the Purchase Agreement. [We] [I] have assumed the authenticity of all documents
submitted to [us] [me] as originals, the genuineness of all signatures, the
legal capacity of natural persons and the conformity to the originals of all
documents.
Based upon the foregoing, it is [our] [my] opinion that:
1. The Company is a corporation duly organized, validly existing
and in good standing under the laws of Oregon and is qualified
to transact business in, and is in good standing under, the
laws of [the state of incorporation].
2. The Company has the power to engage in the transactions
contemplated by the Agreements and all requisite power,
authority and legal right to execute and deliver such
Agreements and to perform and observe the terms and conditions
of such Agreements.
3. Each of the Agreements has been duly authorized, executed and
delivered by the Company, and is a legal, valid and binding
agreement enforceable in accordance with its respective terms
against the Company, subject to bankruptcy laws and other
similar laws of general application affecting rights of
creditors and subject to the application of the rules of
equity, including those respecting the availability of
specific performance, none of which will materially interfere
with the realization of the benefits provided thereunder or
with the Purchaser's ownership of the Mortgage Loans.
4. The Company has been duly authorized to allow any of its
officers to execute any and all documents by original
signature in order to complete the transactions contemplated
by the Agreements.
5. The Company has been duly authorized to allow any of its
officers to execute by original [or facsimile] signature the
endorsements to the Mortgage Notes and the Assignments of
Mortgages, and the original [or facsimile] signature of the
officer at the Company executing the endorsements to the
Mortgage Notes and the Assignments of Mortgages represents the
legal and valid signature of said officer of the Company.
6. Either (i) no consent, approval, authorization or order of any
court or governmental agency or body is required for the
execution, delivery and performance by the Company of or
compliance with the Agreements and the sale of the Mortgage
Loans by the Company or the consummation of the transactions
contemplated by the Agreements or (ii) any required consent,
approval, authorization or order has been obtained by the
Company.
7. Neither the consummation of the transactions contemplated by,
nor the fulfillment of the terms of, the Agreements conflicts
or will conflict with or results or will result in a breach of
or constitutes or will constitute a default under the charter
or by-laws of the Company, the terms of any indenture or, to
the best of the Company's knowledge, other agreement or
instrument to which the Company is a party or by which it is
bound or to which it is subject, or violates any statute or
order, rule, regulations, writ, injunction or decree of any
court, governmental authority or regulatory body to which the
Company is subject or by which it is bound.
8. There is no action, suit, proceeding or investigation pending
or, to the best of [our] [my] knowledge, threatened against
the Company which, in [our] [my] judgment, either in any one
instance or in the aggregate, may result in any material
adverse change in the business, operations, financial
condition, properties or assets of the Company or in any
material impairment of the right or ability of the Company to
carry on its business substantially as now conducted or in any
material liability on the part of the Company or which would
draw into question the validity of the Agreements to which it
is a party or the Mortgage Loans or of any action taken or to
be taken in connection with the transactions contemplated
thereby, or which would be likely to impair materially the
ability of the Company to perform under the terms of the
Agreements.
9. The sale of each Mortgage Note and Mortgage as and in the
manner contemplated by the Purchase Agreement and the
Servicing Agreement is sufficient to fully transfer to the
Purchaser all right, title and interest of the Company thereto
as noteholder and mortgagee.
10. The Mortgages have been duly assigned and the Mortgage Notes
have been duly endorsed as provided in Exhibit A to the
Purchase Agreement. The Assignments of Mortgage are in
recordable form, except for the insertion of the name of the
assignee, and upon the name of the assignee being inserted,
are acceptable for recording under the laws of the state where
each related Mortgaged Property is located. The endorsement of
the Mortgage Notes, the delivery to the Purchaser, or its
designee, of the Assignments of Mortgage, and the delivery of
the original endorsed Mortgage Notes to the Purchaser, or its
designee, are sufficient to permit the Purchaser to avail
itself of all protection available under applicable law
against the claims of any present or future creditors of the
Company, and are sufficient to prevent any other sale,
transfer, assignment, pledge or hypothecation of the Mortgages
and the Mortgage Notes by the Company from being enforceable.
This opinion is given to you for your sole benefit, and no other
person or entity is entitled to rely hereon except that the purchaser or
purchasers to which you initially and directly resell the Mortgage Loans may
rely on this opinion as if it were addressed to them as of its date.
Very truly yours,
_________________________
[Name]
[Assistant] General Counsel
Exhibit E
EXHIBIT E
FORM OF SECURITY RELEASE CERTIFICATION
--------------------------------------
___________________, 200__
[Federal Home Loan Bank of
______(the "Association")]
___________________________
___________________________
___________________________
Attention: ___________________________
___________________________
Re: Notice of Sale and Release of Collateral
----------------------------------------
Dear Sirs:
This letter serves as notice that ________________________[COMPANY]
a [type of entity], organized pursuant to the laws of [the state of
incorporation] (the "Company") has committed to sell to Xxxxxxx Xxxxx Mortgage
Company under an Amended and Restated Flow Mortgage Loan Purchase and Warranties
Agreement, dated as of November 1, 2005, certain mortgage loans originated by
the Association. The Company warrants that the mortgage loans to be sold to
Xxxxxxx Xxxxx Mortgage Company are in addition to and beyond any collateral
required to secure advances made by the Association to the Company.
The Company acknowledges that the mortgage loans to be sold to
Xxxxxxx Xxxxx Mortgage Company shall not be used as additional or substitute
collateral for advances made by the Association. Xxxxxxx Xxxxx Mortgage Company
understands that the balance of the Company's mortgage loan portfolio may be
used as collateral or additional collateral for advances made by the
Association, and confirms that it has no interest therein.
Execution of this letter by the Association shall constitute a full
and complete release of any security interest, claim, or lien which the
Association may have against the mortgage loans to be sold to Xxxxxxx Xxxxx
Mortgage Company.
Very truly yours,
_________________________
By:______________________
Name:____________________
Title:___________________
Date:____________________
Acknowledged and approved:
____________________________
By:_____________________________
Name:___________________________
Title:__________________________
Date:___________________________
Exhibit F
EXHIBIT F
FORM OF SECURITY RELEASE CERTIFICATION
--------------------------------------
I. Release of Security Interest
----------------------------
The financial institution named below hereby relinquishes any and
all right, title and interest it may have in all Mortgage Loans to be purchased
by to Xxxxxxx Xxxxx Mortgage Company from the Company named below pursuant to
that certain Amended and Restated Flow Mortgage Loan Purchase and Warranties
Agreement, dated as of November 1, 2005 and certifies that all notes, mortgages,
assignments and other documents in its possession relating to such Mortgage
Loans have been delivered and released to the Company named below or its
designees, as of the date and time of the sale of such Mortgage Loans to Xxxxxxx
Xxxxx Mortgage Company.
Name and Address of Financial Institution
________________________________
(name)
________________________________
(Address)
By:_____________________________
II. Certification of Release
------------------------
The Company named below hereby certifies to
______________________________ that, as of the date and time of the sale of the
above-mentioned ___________________________________ the security interests in
the Mortgage Loans released by the above-named financial institution comprise
all security interests relating to or affecting any and all such Mortgage Loans.
The Company warrants that, as of such time, there are and will be no other
security interests affecting any or all of such Mortgage Loans.
_____________________________
By:__________________________
Title:_______________________
Date:________________________
Exhibit G
EXHIBIT G
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
-------------------------------------------
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated ______________, between
__________________________________, a ___________________ corporation
("Assignor") and ________________________________, a __________________
corporation ("Assignee"):
For good and valuable consideration the receipt and sufficiency of
which hereby are acknowledged, and of the mutual covenants herein contained, the
parties hereto hereby agree as follows:
1. The Assignor hereby grants, transfers, conveys and assigns to
Assignee, as Purchaser, all of the right, title and interest of Assignor with
respect to the mortgage loans listed on Exhibit A attached hereto (the "Mortgage
Loans"), and with respect to such Mortgage Loans, in, to and under (a) that
certain Amended and Restated Flow Mortgage Loan Purchase and Warranties
Agreement, Conventional Residential Adjustable Rate and Fixed Rate Mortgage
Loans dated as of November 1, 2005 (the "Purchase Agreement") and (b) that
certain Flow Interim Servicing Agreement, dated as of July 1, 2005, between the
Purchaser and Meritage Mortgage Corporation (the "Servicing Agreement" and,
together with the Purchase Agreement, the "Agreements").
2. The Assignor warrants and represents to, and covenants with, the
Assignee that:
a. The Assignor is the lawful owner of the Mortgage Loans with
the full right to transfer the Mortgage Loans free from any and all claims and
encumbrances whatsoever;
b. The Assignor has not received notice of, and has no knowledge
of, any offsets, counterclaims or other defenses available to the Seller with
respect to the Agreements or the Mortgage Loans;
c. The Assignor has not waived or agreed to any waiver under, or
agreed to any amendment or other modification of, the Agreements. The Assignor
has no knowledge of, and has not received notice of, any waivers under or
amendments or other modifications of, or assignments of rights or obligations
under, the Agreements; and
d. Neither the Assignor nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Mortgage Loans
or any interest in the Mortgage Loans, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Mortgage Loans, or any interest in
the Mortgage Loans or otherwise approached or negotiated with respect to the
Mortgage Loans, or any interest in the Mortgage with any person in any manner,
or made any general solicitation by means of general advertising or in any other
manner, or taken any other action which would constitute a distribution of the
Mortgage Loans under the Securities Act of 1933, as amended (the "1933 Act") or
which would render the disposition of the Mortgage Loans a violation of Section
5 of the 1933 Act or require registration pursuant thereto.
3. The Assignee warrants and represents to, and covenants with, the
Assignor and the Seller pursuant to the Agreements that:
a. The Assignee is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation,
and has all requisite corporate power and authority to acquire, own and purchase
the Mortgage Loans;
b. The Assignee has full corporate power and authority to
execute, deliver and perform under this Assignment and Assumption Agreement, and
to consummate the transactions set forth herein. The execution, delivery and
performance of the Assignee of this Assignment and Assumption Agreement, and the
consummation by it of the transactions contemplated hereby, have been duly
authorized by all necessary corporate action of the Assignee. This Assignment
and Assumption Agreement has been duly executed and delivered by the Assignee
and constitutes the valid and legally binding obligation of the Assignee
enforceable against the Assignee in accordance with its respective terms;
c. To the best of Assignee's knowledge, no material consent,
approval, order or authorization of, or declaration, filing or registration
with, any governmental entity is required to be obtained or made by the Assignee
in connection with the execution, delivery or performance by the Assignee of
this Assignment and Assumption Agreement, or the consummation by it of the
transactions contemplated hereby;
d. The Assignee agrees to be bound, as Purchaser, by all of the
terms, covenants and conditions of the Agreements, the Mortgage Loans, and from
and after the date hereof, the Assignee assumes for the benefit of each of the
Seller, the Assignor and the Custodian all of the Assignor's obligations as
Purchaser thereunder; including, without limitation, the limitation on
assignment set forth in Section 22 of the Purchase Agreement;
e. The Assignee understands that the Mortgage Loans have not been
registered under the 1933 Act or the securities laws of any state;
f. The purchase price being paid by the Assignee for the Mortgage
Loans is in excess of $250,000 and will be paid by cash remittance of the full
purchase price within sixty (60) days of the sale;
g. The Assignee is acquiring the Mortgage Loans for investment
for its own account only and not for any other person;
h. The Assignee considers itself a substantial, sophisticated
institutional investor having such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of
investment in the Mortgage Loans;
i. The Assignee has been furnished with all information regarding
the Mortgage Loans that it has requested from the Assignor or the Seller;
j. Neither the Assignee nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Mortgage Loans
or any interest in the Mortgage Loans, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Mortgage Loans or any interest in
the Mortgage Loans, or otherwise approached or negotiated with respect to the
Mortgage Loans or any interest in the Mortgage Loans with any person in any
manner which would constitute a distribution of the Mortgage Loans under the
1933 Act or which would render the disposition of the Mortgage Loans a violation
of Section 5 of the 1933 Act or require registration pursuant thereto, nor will
it act, nor has it authorized or will it authorize any person to act, in such
manner with respect to the Mortgage Loans; and
k. Either: (1) the Assignee is not an employee benefit plan
("Plan") within the meaning of section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") or a plan (also "Plan") within the
meaning of section 4975(e)(1) of the Internal Revenue Code of 1986, as amended
("Code"), and the Assignee is not directly or indirectly purchasing the Mortgage
Loans on behalf of, investment manager of, as named fiduciary of, as Trustee of,
or with assets of, a Plan; or (2) the Assignee's purchase of the Mortgage Loans
will not result in a prohibited transaction under section 406 of ERISA or
section 4975 of the Code.
4. (a) The Assignee's address for purposes of all notices and
correspondence related to the Mortgage Loans, this Assignment and Assumption
Agreement and the Agreements is:
The Assignee's wire instructions for purposes of all remittances
and payments related to the Mortgage Loans are:
(b) The Assignor's address for purposes for all notices and
correspondence related to the Mortgage Loans and this Assignment and Assumption
Agreement is:
5. This Assignment and Assumption Agreement shall be construed in
accordance with the laws of the State of New York and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws, except to the extent preempted by federal law.
6. This Assignment and Assumption Agreement shall inure to the
benefit of the successors and assigns of the parties hereto. This Assignment and
Assumption Agreement may not be assigned by the Assignee without the express
written consent of the Assignor. Any entity into which the Assignor or Assignee
may be merged or consolidated shall, without the requirement for any further
writing, be deemed the Assignor or Assignee, respectively, hereunder.
7. No term or provision of this Assignment and Assumption
Agreement may be waived or modified unless such waiver or modification is in
writing and signed by the party against whom such waiver or modification is
sought to be enforced.
8. This Assignment and Assumption Agreement shall survive the
conveyance of the Mortgage Loans and the assignment of the Agreements by the
Assignor.
9. Notwithstanding the assignment of the Agreements by either the
Assignor or Assignee, this Assignment and Assumption Agreement shall not be
deemed assigned by the Assignor or the Assignee unless assigned by separate
written instrument.
10. For the purpose for facilitating the execution of this
Assignment and Assumption Agreement as herein provided and for other purposes,
this Assignment and Assumption Agreement may be executed simultaneously in any
number of counterparts, each of which counterparts shall be deemed to be an
original, and such counterparts shall constitute and be one and the same
instrument.
IN WITNESS WHEREOF, the parties have caused this Assignment and
Assumption Agreement to be executed by their duly authorized officers as of the
date first above written.
______________________________ _____________________________
Assignor Assignee
By:___________________________ By:__________________________
Its:__________________________ Its:_________________________
Taxpayer Taxpayer
Identification No.____________ Identification No.___________
Exhibit H
EXHIBIT H
[INTENTIONALLY OMITTED]
Exhibit I
EXHIBIT I
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE POOL
-------------------------------------------------------
CHARACTERISTICS OF THE MORTGAGE LOANS
-------------------------------------
Pool Characteristics of the Mortgage Loans as delivered on the
Closing Date:
Exhibit J
EXHIBIT J
ORIGINATOR'S UNDERWRITING GUIDELINES
------------------------------------
Exhibit K
EXHIBIT K
MORTGAGE LOAN SCHEDULE
----------------------
Exhibit L
EXHIBIT L
SERVICER ACKNOWLEDGMENT
-----------------------
As of [_________]
Meritage Mortgage Corporation
0000 XX Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxx 00000
Attention: Xxxx Xxxxxxx
Re: Letter Agreement in connection with the purchase by Xxxxxxx Xxxxx
Mortgage Company (the "Purchaser") and the sale by Meritage
Mortgage Corporation (the "Company") of mortgage loans pursuant
to that certain Amended and Restated Flow Mortgage Loan Purchase
and Warranties Agreement (the "Agreement"), dated as of November
1, 2005, by and between the Company and the Purchaser
-----------------------------------------------------------------
Ladies and Gentlemen:
In connection with the above-referenced transaction, and in
consideration of the mutual agreements hereinafter set forth, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Purchaser and the Company hereby agree as follows:
1. Unless otherwise specified in this letter agreement, all
capitalized terms herein shall have the meaning as provided in
the Agreement.
2. The Purchaser hereby requests, and the Company hereby
acknowledges, that [SERVICER] shall be the "Successor
Servicer" under the agreement and shall be entitled to all the
rights and benefits granted to a Successor Servicer under the
Agreement.
3. This letter may be executed in any number of counterparts each
of which shall constitute one and the same instrument, and
either party hereto may execute this letter by signing any
such counterpart.
[the remainder of this page intentionally left blank]
4. This letter shall be deemed in effect when a fully executed
counterpart thereof is received by the Company in the State of
New York and shall be deemed to have been made in the State of
New York. This letter shall be construed in accordance with
the laws of the State of New York, and the obligations, rights
and remedies of the parties hereunder shall be determined in
accordance with the laws of the State of New York except to
the extent preempted by federal law.
Very truly yours,
XXXXXXX XXXXX MORTGAGE COMPANY
By: XXXXXXX XXXXX REAL ESTATE
FUNDING CORP.
By: _________________________
Name: _______________________
Title: ______________________
Accepted and Agreed:
MERITAGE MORTGAGE CORPORATION
(Seller)
By: _________________________
Name: _______________________
Title: ______________________
Exhibit M
EXHIBIT M
[INTENTIONALLY OMITTED]
Exhibit N
EXHIBIT N
ASSIGNMENT AND CONVEYANCE
-------------------------
On this __ day of _________, 200_, Meritage Mortgage Corporation
(the "Seller"), as the Seller, under that certain Amended and Restated Flow
Mortgage Loan Purchase and Warranties Agreement, dated as of November 1, 2005
(the "Agreement") does hereby sell, transfer, assign, set over and convey to
Xxxxxxx Xxxxx Mortgage Company (the "Purchaser"), as Purchaser under the
Agreement all rights, title and interest of the Seller in and to (a) the
Mortgage Loans listed on the related Mortgage Loan Schedule attached as Exhibit
A hereto, and (b) the Servicing Rights, together with the related Mortgage Files
and all rights and obligations arising under the documents contained therein.
Pursuant to Subsection 6.03 of the Agreement, the Seller has delivered to the
Custodian the documents for each Mortgage Loan to be purchased as set forth in
the Agreement. The ownership of each Mortgage Note, Mortgage, and the contents
of each Mortgage File is vested in the Purchaser and the ownership of all
records and documents with respect to the related Mortgage Loan prepared by or
which come into the possession of the Seller shall immediately vest in the
Purchaser and shall be delivered promptly by the Seller to the Purchaser.
The Seller confirms to the Purchaser that, unless otherwise agreed
upon in writing by the Seller and the Purchaser, the representations and
warranties set forth in Subsection 9.02 of the Agreement with respect to the
Mortgage Loans listed on the Mortgage Loan Schedule attached hereto, and the
representations and warranties in Subsection 9.01 of the Agreement with respect
to the Seller are true and correct as of the date hereof.
Capitalized terms used herein and not otherwise defined shall have
the meanings set forth in the Agreement.
MERITAGE MORTGAGE CORPORATION
(Seller)
By:_________________________________
Name:_______________________________
Title:______________________________
EXHIBIT A
MORTGAGE LOAN SCHEDULE
Exhibit O
EXHIBIT O
---------
FORM OF INDEMNIFICATION AGREEMENT
---------------------------------
INDEMNIFICATION
AND
CONTRIBUTION AGREEMENT
THIS INDEMNIFICATION AND CONTRIBUTION AGREEMENT dated [_______],
200___ ("Agreement") between GS Mortgage Securities Corp., a Delaware
corporation (the "Depositor"), and [___________________], a [_________]
corporation (the "Indemnifying Party").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Indemnifying Party or its Affiliate originated or
acquired the Mortgage Loans and subsequently sold the Mortgage Loans to an
Affiliate of the Depositor in anticipation of the securitization transaction;
and
WHEREAS, as an inducement to the Depositor to enter into the
Assignment and Recognition Agreement, to the Underwriter[s] to enter into the
Underwriting Agreement (as defined herein), and to the Initial Purchaser[s] to
enter into the Certificate Purchase Agreement (as defined herein), the
Indemnifying Party wishes to provide for indemnification and contribution on the
terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and of other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
Subsection 1.01 Certain Defined Terms. The following terms shall
have the meanings set forth below, unless the context clearly indicates
otherwise:
1933 Act: The Securities Act of 1933, as amended.
1934 Act: The Securities Exchange Act of 1934, as amended.
"ABS Informational and Computational Material" means any written
communication as defined in Item 1101(a) of Regulation AB under the 1933 Act and
the 1934 Act, as amended from time to time.
Agreement: This Indemnification and Contribution Agreement, as the
same may be amended in accordance with the terms hereof.
Certificate Purchase Agreement: The Purchase Agreement, dated as of
[______], 200___, [among] the Depositor and the Initial Purchaser[s], relating
to the Privately Offered Certificates.
Free Writing Prospectus: Any written communication that
constitutes a "free writing prospectus," as defined in Rule 405 under the 1933
Act.
GSMC: Xxxxxxx Xxxxx Mortgage Company, a New York limited
partnership, and its successors and assigns.
Indemnified Parties: As defined in Section 3.01.
Indemnifying Party Information: (A) All information in the
Prospectus Supplement, the Offering Circular, ABS Informational and
Computational Materials or any Free Writing Prospectus or any amendment or
supplement thereto, (i) contained under the headings ["Transaction
Overview--Parties--The Responsible Party"] and ["The Mortgage Loan
Pool--Underwriting Guidelines"] and (ii) regarding the Mortgage Loans, the
related Mortgagors and/or the related Mortgaged Properties (but in the case of
this clause (ii), only to the extent any untrue statement or omission or alleged
untrue statement or omission arises from or is based upon errors or omissions in
the information concerning the Mortgage Loans, the related Mortgagors and/or the
related Mortgaged Properties, as applicable, provided to the Depositor or any
Affiliate thereof by or on behalf of the Indemnifying Party or any Affiliate
thereof), and (B) [and static pool information regarding mortgage loans
originated or acquired by the Seller [and included in the Prospectus Supplement,
the Offering Circular, ABS Informational and Computational Materials or the Free
Writing Prospectus] [incorporated by reference from the website located at
______________].
Offering Circular: The offering circular, dated [_______], 200___,
relating to the private offering of the Privately Offered Certificates.
Person: Any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Pooling and Servicing Agreement: The Pooling and Servicing
Agreement, dated as of [_______], 200___, among the Depositor, the Indemnifying
Party, [Servicer], as servicer, and [Trustee], as trustee.
Privately Offered Certificates: [__________________], issued
pursuant to the Pooling and Servicing Agreement.
Prospectus Supplement: The prospectus supplement, dated [______],
200___, relating to the public offering of the Publicly Offered Certificates.
Publicly Offered Certificates: [______________________________],
issued pursuant to the Pooling and Servicing Agreement.
Underwriters: Xxxxxxx, Xxxxx & Co., a New York limited partnership[,
and [____________], a [___________] corporation], and their successors and
assigns.
Underwriting Agreement: The Underwriting Agreement, dated as of
[________], 200__, [among] the Depositor and the Underwriter[s], relating to the
Publicly Offered
Certificates.
Other Terms. Capitalized terms used but not defined herein shall
have the meanings assigned to such terms in the Pooling and Servicing Agreement.
SECTION 2. REPRESENTATIONS AND WARRANTIES. Each party hereto
represents and warrants that:
(a) it has all requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement;
(b) this Agreement has been duly authorized, executed and delivered
by such party; and
(c) assuming the due authorization, execution and delivery by each
other party hereto, this Agreement constitutes the legal, valid and binding
obligation of such party.
SECTION 3. INDEMNIFICATION
Subsection 3.01 Indemnification by the Indemnifying Party of the
Depositor and the Underwriters.
(a) The Indemnifying Party shall indemnify and hold harmless the
Depositor, GSMC, [each of] the Underwriter[s], the Initial Purchaser[s], and
their respective Affiliates and their respective present and former directors,
officers, partners and each Person, if any, that controls the Depositor, GSMC,
such Underwriter, such Initial Purchaser, or such Affiliate, within the meaning
of either the 1933 Act or the 1934 Act (collectively, the "Indemnified Parties")
against any and all losses, claims, damages, penalties, fines, forfeitures, or
liabilities, joint or several, to which each such Indemnified Party may become
subject, under the 1933 Act, the 1934 Act or otherwise, to the extent that such
losses, claims, damages, penalties, fines, forfeitures, or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in the Prospectus
Supplement, the Offering Circular, ABS Informational and Computational
Materials, any Free Writing Prospectus or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading, to the extent that such untrue statement or alleged untrue statement
or omission or alleged omission relates to information set forth in the
Indemnifying Party Information, and the Indemnifying Party shall in each case
reimburse each Indemnified Party for any legal or other expenses reasonably
incurred by such Indemnified Party in connection with investigating or defending
any such loss, claim, damage, liability, penalties, fines, forfeitures, or
action. The Indemnifying Party's liability under this Section 3.01 shall be in
addition to any other liability that the Indemnifying Party may otherwise have.
(b) If the indemnification provided for in this Section 3.01 shall
for any reason be unavailable to an Indemnified Party under this Section 3.01,
then the party which would otherwise be obligated to indemnify with respect
thereto, on the one hand, and the parties which would otherwise be entitled to
be indemnified, on the other hand, shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated herein and
incurred by the parties hereto in such proportions that are appropriate to
reflect the relative fault of the Depositor, GSMC, the Underwriter[s], and the
Initial Purchaser[s], on one hand, and the Indemnifying Party, on the other
hand, in connection with the applicable misstatements or omissions as well as
any other relevant equitable considerations. Notwithstanding the foregoing, no
Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any Person that
was not guilty of such fraudulent misrepresentation. For purposes of this
Section 3.01, each director, officer, partner and controlling Person, of the
Depositor, GSMC, the Underwriter[s] and the Initial Purchaser[s] and their
respective Affiliates shall have the same rights to contribution as such Person.
Subsection 3.02 Notification; Procedural Matters. Promptly after
receipt by an Indemnified Party under Section 3.01 of notice of any claim or the
commencement of any action, such Indemnified Party shall, if a claim in respect
thereof is to be made against the Indemnifying Party under Section 3.01, notify
the Indemnifying Party (or other contributing party) in writing of the claim or
the commencement of such action; provided, however, that the failure to notify
the Indemnifying Party (or other contributing party) shall not relieve it from
any liability which it may have under Section 3.01 except to the extent it has
been materially prejudiced by such failure; and provided further, however, that
the failure to notify the Indemnifying Party shall not relieve it from any
liability which it may have to any Indemnified Party otherwise than under
Section 3.01. In case any such action is brought against any Indemnified Party
and it notifies the Indemnifying Party of the commencement thereof, the
Indemnifying Party shall be entitled to participate therein and, to the extent
that, by written notice delivered to the Indemnified Party promptly after
receiving the aforesaid notice from such Indemnified Party, the Indemnifying
Party elects to assume the defense thereof, it may participate with counsel
reasonably satisfactory to such Indemnified Party; provided, however, that if
the defendants in any such action include both the Indemnified Party and the
Indemnifying Party and the Indemnified Party or parties shall reasonably have
concluded that there may be legal defenses available to it or them and/or other
Indemnified Parties that are different from or additional to those available to
the Indemnifying Party, the Indemnified Party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such Indemnified Party or
parties. Upon receipt of notice from the Indemnifying Party to such Indemnified
Party of its election so to assume the defense of such action and approval by
the Indemnified Party of such counsel, the Indemnifying Party shall not be
liable to such Indemnified Party under this paragraph for any legal or other
expenses subsequently incurred by such Indemnified Party in connection with the
defense thereof, unless (i) the Indemnified Party shall have employed separate
counsel (plus any local counsel) in connection with the assertion of legal
defenses in accordance with the proviso to the immediately preceding sentence,
(ii) the Indemnifying Party shall not have employed counsel reasonably
satisfactory to the Indemnified Party to represent the Indemnified Party within
a reasonable time after notice of commencement of the action or (iii) the
Indemnifying Party shall have authorized the employment of counsel for the
Indemnified Party at the expense of the Indemnifying Party. No party shall be
liable for contribution with respect to any action or claim settled without its
consent, which consent shall not be unreasonably withheld. In no event shall the
Indemnifying Party be liable for the fees and expenses of more than one counsel
representing the Indemnified Parties (in addition to any local counsel) separate
from its own counsel for all Indemnified Parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances.
SECTION 4. GENERAL.
Subsection 4.01 Survival. This Agreement and the obligations of the
parties hereunder shall survive the purchase and sale of the Publicly Offered
Certificates and the Privately Offered Certificates.
Subsection 4.02 Successors. This Agreement shall inure to the
benefit of and be binding upon the parties hereto, each Indemnified Party and
their respective successors and assigns, and no other Person shall have any
right or obligation hereunder.
Subsection 4.03 Applicable Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York without
giving effect to principles of conflict of laws.
Subsection 4.04 Miscellaneous. Neither this Agreement nor any term
hereof may be changed, waived, discharged or terminated except by a writing
signed by the party against which enforcement of such change, waiver, discharge
or termination is sought. This Agreement may be signed in any number of
counterparts, each of which shall be deemed an original, which taken together
shall constitute one and the same instrument.
Subsection 4.05 Notices. All communications hereunder shall be in
writing and shall be deemed to have been duly given when delivered to (a) in the
case of the Depositor, GSMC, the Underwriter[s], or the Initial Purchaser[s], GS
Mortgage Securities Corp., Xxxxxxx Xxxxx Mortgage Company or Xxxxxxx, Xxxxx &
Co. c/o Goldman, Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Principal Finance Group/Xxxxxxxxxxx X. Xxxxxxx, and (b) in the case
of the Indemnifying Party: [______________], [Address], Attention:
[__________________].
Subsection 4.06 Submission To Jurisdiction; Waivers. The
Indemnifying Party hereby irrevocably and unconditionally:
(A) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY
JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK, THE FEDERAL COURTS OF THE UNITED STATES OF
AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY
THEREOF;
(B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN
SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY
SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT
COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR
PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED
MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS
ADDRESS SET FORTH HEREIN OR AT SUCH OTHER ADDRESS OF WHICH THE DEPOSITOR SHALL
HAVE BEEN NOTIFIED; AND
(D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT
TO SUE IN ANY OTHER JURISDICTION.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have executed this Agreement by
their duly authorized officers as of the date first above written.
GS MORTGAGE SECURITIES CORP.
By:_________________________________
Name:
Title:
[INDEMNIFYING PARTY]
By:_________________________________
Name:
Title:
EXHIBIT CC
Exhibit CC: Standard File Layout - Delinquency Reporting
Column/Header Name Description Decimal Format Comment
------------------ ----------- ------- --------------
SERVICER_LOAN_NBR A unique number assigned to a loan by the Servicer. This
may be different than the LOAN_NBR
LOAN_NBR A unique identifier assigned to each loan by the originator.
CLIENT_NBR Servicer Client Number
SERV_INVESTOR_NBR Contains a unique number as assigned by an external servicer
to identify a group of loans in their system.
BORROWER_FIRST_NAME First Name of the Borrower.
BORROWER_LAST_NAME Last name of the borrower.
PROP_ADDRESS Street Name and Number of Property
PROP_STATE The state where the property located.
PROP_ZIP Zip code where the property is located.
BORR_NEXT_PAY_DUE_DATE The date that the borrower's next payment is due to the MM/DD/YYYY
servicer at the end of processing cycle, as reported by
Servicer.
LOAN_TYPE Loan Type (i.e. FHA, VA, Conv)
BANKRUPTCY_FILED_DATE The date a particular bankruptcy claim was filed. MM/DD/YYYY
BANKRUPTCY_CHAPTER_CODE The chapter under which the bankruptcy was filed.
BANKRUPTCY_CASE_NBR The case number assigned by the court to the bankruptcy
filing.
POST_PETITION_DUE_DATE The payment due date once the bankruptcy has been approved MM/DD/YYYY
by the courts
BANKRUPTCY_DCHRG_DISM_DATE The Date The Loan Is Removed From Bankruptcy. Either by MM/DD/YYYY
Dismissal, Discharged and/or a Motion For Relief Was
Granted.
LOSS_MIT_APPR_DATE The Date The Loss Mitigation Was Approved By The Servicer MM/DD/YYYY
LOSS_MIT_TYPE The Type Of Loss Mitigation Approved For A Loan Such As;
LOSS_MIT_EST_COMP_DATE The Date The Loss Mitigation /Plan Is Scheduled To End/Close MM/DD/YYYY
LOSS_MIT_ACT_COMP_DATE The Date The Loss Mitigation Is Actually Completed MM/DD/YYYY
FRCLSR_APPROVED_DATE The date DA Admin sends a letter to the servicer with MM/DD/YYYY
instructions to begin foreclosure proceedings.
ATTORNEY_REFERRAL_DATE Date File Was Referred To Attorney to Pursue Foreclosure MM/DD/YYYY
FIRST_LEGAL_DATE Notice of 1st legal filed by an Attorney in a Foreclosure MM/DD/YYYY
Action
FRCLSR_SALE_EXPECTED_DATE The date by which a foreclosure sale is expected to occur. MM/DD/YYYY
FRCLSR_SALE_DATE The actual date of the foreclosure sale. MM/DD/YYYY
FRCLSR_SALE_AMT The amount a property sold for at the foreclosure sale. 2 No commas(,)
or dollar
signs ($)
EVICTION_START_DATE The date the servicer initiates eviction of the borrower. MM/DD/YYYY
EVICTION_COMPLETED_DATE The date the court revokes legal possession of the property MM/DD/YYYY
from the borrower.
LIST_PRICE The price at which an REO property is marketed. 2 No commas(,)
or dollar
signs ($)
LIST_DATE The date an REO property is listed at a particular price. MM/DD/YYYY
OFFER_AMT The dollar value of an offer for an REO property. 2 No commas(,)
or dollar
signs ($)
OFFER_DATE_TIME The date an offer is received by DA Admin or by the Servicer. MM/DD/YYYY
REO_CLOSING_DATE The date the REO sale of the property is scheduled to close. MM/DD/YYYY
REO_ACTUAL_CLOSING_DATE Actual Date Of REO Sale MM/DD/YYYY
OCCUPANT_CODE Classification of how the property is occupied.
PROP_CONDITION_CODE A code that indicates the condition of the property.
PROP_INSPECTION_DATE The date a property inspection is performed. MM/DD/YYYY
APPRAISAL_DATE The date the appraisal was done. MM/DD/YYYY
CURR_PROP_VAL The current "as is" value of the property based on brokers 2
price opinion or appraisal.
REPAIRED_PROP_VAL The amount the property would be worth if repairs are 2
completed pursuant to a broker's price opinion or appraisal.
If applicable:
DELINQ_STATUS_CODE FNMA Code Describing Status of Loan
DELINQ_REASON_CODE The circumstances which caused a borrower to stop paying on
a loan. Code indicates the reason why the loan is in default
for this cycle.
MI_CLAIM_FILED_DATE Date Mortgage Insurance Claim Was Filed With Mortgage MM/DD/YYYY
Insurance Company.
MI_CLAIM_AMT Amount of Mortgage Insurance Claim Filed No commas(,)
or dollar
signs ($)
MI_CLAIM_PAID_DATE Date Mortgage Insurance Company Disbursed Claim Payment MM/DD/YYYY
MI_CLAIM_AMT_PAID Amount Mortgage Insurance Company Paid On Claim 2 No commas(,)
or dollar
signs ($)
POOL_CLAIM_FILED_DATE Date Claim Was Filed With Pool Insurance Company MM/DD/YYYY
POOL_CLAIM_AMT Amount of Claim Filed With Pool Insurance Company 2 No commas(,)
or dollar
signs ($)
POOL_CLAIM_PAID_DATE Date Claim Was Settled and The Check Was Issued By The Pool MM/DD/YYYY
Insurer
POOL_CLAIM_AMT_PAID Amount Paid On Claim By Pool Insurance Company 2 No commas(,)
or dollar
signs ($)
FHA_PART_A_CLAIM_FILED_DATE Date FHA Part A Claim Was Filed With HUD MM/DD/YYYY
FHA_PART_A_CLAIM_AMT Amount of FHA Part A Claim Filed 2 No commas(,)
or dollar
signs ($)
FHA_PART_A_CLAIM_PAID_DATE Date HUD Disbursed Part A Claim Payment MM/DD/YYYY
FHA_PART_A_CLAIM_PAID_AMT Amount HUD Paid on Part A Claim 2 No commas(,)
or dollar
signs ($)
FHA_PART_B_CLAIM_FILED_DATE Date FHA Part B Claim Was Filed With HUD MM/DD/YYYY
FHA_PART_B_CLAIM_AMT Amount of FHA Part B Claim Filed 2 No commas(,)
or dollar
signs ($)
FHA_PART_B_CLAIM_PAID_DATE Date HUD Disbursed Part B Claim Payment MM/DD/YYYY
FHA_PART_B_CLAIM_PAID_AMT Amount HUD Paid on Part B Claim 2 No commas(,)
or dollar
signs ($)
VA_CLAIM_FILED_DATE Date VA Claim Was Filed With the Veterans Admin MM/DD/YYYY
VA_CLAIM_PAID_DATE Date Veterans Admin. Disbursed VA Claim Payment MM/DD/YYYY
VA_CLAIM_PAID_AMT Amount Veterans Admin. Paid on VA Claim 2 No commas(,)
or dollar
signs ($)
Exhibit 2: Standard File Codes - Delinquency Reporting
The Loss Mit Type field should show the approved Loss Mitigation Code as
follows:
o ASUM- Approved Assumption
o BAP- Borrower Assistance Program
o CO- Charge Off
o DIL- Deed-in-Lieu
o FFA- Formal Forbearance Agreement
o MOD- Loan Modification
o PRE- Pre-Sale
o SS- Short Sale
o MISC- Anything else approved by the PMI or Pool Insurer
NOTE: Xxxxx Fargo Bank will accept alternative Loss Mitigation Types to those
above, provided that they are consistent with industry standards. If Loss
Mitigation Types other than those above are used, the Servicer must supply Xxxxx
Fargo Bank with a description of each of the Loss Mitigation Types prior to
sending the file.
The Occupant Code field should show the current status of the property code as
follows:
o Mortgagor
o Tenant
o Unknown
o Vacant
The Property Condition field should show the last reported condition of the
property as follows:
o Damaged
o Excellent
o Fair
o Gone
o Good
o Poor
o Special Hazard
o Unknown
Exhibit 2: Standard File Codes - Delinquency Reporting, Continued
The FNMA Delinquent Reason Code field should show the Reason for Delinquency as
follows:
Delinquency Code Delinquency Description
---------------- -----------------------
001 FNMA-Death of principal mortgagor
002 FNMA-Illness of principal mortgagor
003 FNMA-Illness of mortgagor's family member
004 FNMA-Death of mortgagor's family member
005 FNMA-Marital difficulties
006 FNMA-Curtailment of income
007 FNMA-Excessive Obligation
008 FNMA-Abandonment of property
009 FNMA-Distant employee transfer
011 FNMA-Property problem
012 FNMA-Inability to sell property
013 FNMA-Inability to rent property
014 FNMA-Military Service
015 FNMA-Other
016 FNMA-Unemployment
017 FNMA-Business failure
019 FNMA-Casualty loss
022 FNMA-Energy environment costs
023 FNMA-Servicing problems
026 FNMA-Payment adjustment
027 FNMA-Payment dispute
029 FNMA-Transfer of ownership pending
030 FNMA-Fraud
031 FNMA-Unable to contact borrower
INC FNMA-Incarceration
Exhibit 2: Standard File Codes - Delinquency Reporting, Continued
The FNMA Delinquent Status Code field should show the Status of Default as
follows:
Status Code Status Description
----------- ------------------
09 Forbearance
17 Pre-foreclosure Sale Closing Plan Accepted
24 Government Seizure
26 Refinance
27 Assumption
28 Modification
29 Charge-Off
30 Third Party Sale
31 Probate
32 Military Indulgence
43 Foreclosure Started
44 Deed-in-Lieu Started
49 Assignment Completed
61 Second Lien Considerations
62 Veteran's Affairs-No Bid
63 Veteran's Affairs-Refund
64 Veteran's Affairs-Buydown
65 Chapter 7 Bankruptcy
66 Chapter 11 Bankruptcy
67 Chapter 13 Bankruptcy
Please be advised that failure to comply with ANY or all of the guidelines
entailed herein may result in issuance of late reporting fees.
(C) Copyright Xxxxx Fargo Bank, Corporate Trust Services
Contact us with Reporting Questions: XXXXxxxxxxXXX@XxxxxXxxxx.xxx
EXHIBIT DD
Exhibit DD : Calculation of Realized Loss/Gain Form 332- Instruction Sheet
NOTE: Do not net or combine items. Show all expenses individually and all
credits as separate line items. Claim packages are due on the remittance report
date. Late submissions may result in claims not being passed until the following
month. The Servicer is responsible to remit all funds pending loss approval and
/or resolution of any disputed items.
The numbers on the 332 form correspond with the numbers listed below.
Liquidation and Acquisition Expenses:
1. The Actual Unpaid Principal Balance of the Mortgage Loan. For
documentation, an Amortization Schedule from date of default through
liquidation breaking out the net interest and servicing fees advanced is
required.
2. The Total Interest Due less the aggregate amount of servicing fee that
would have been earned if all delinquent payments had been made as agreed.
For documentation, an Amortization Schedule from date of default through
liquidation breaking out the net interest and servicing fees advanced is
required.
3. Accrued Servicing Fees based upon the Scheduled Principal Balance of the
Mortgage Loan as calculated on a monthly basis. For documentation, an
Amortization Schedule from date of default through liquidation breaking
out the net interest and servicing fees advanced is required.
4-12. Complete as applicable. Required documentation:
* For taxes and insurance advances - see page 2 of 332 form - breakdown
required showing period
of coverage, base tax, interest, penalty. Advances prior to default
require evidence of servicer efforts to recover advances.
* For escrow advances - complete payment history
(to calculate advances from last positive escrow balance forward)
* Other expenses - copies of corporate advance history showing all
payments
* REO repairs > $1500 require explanation
* REO repairs >$3000 require evidence of at least 2 bids.
* Short Sale or Charge Off require P&L supporting the decision and WFB's
approved Officer Certificate
* Unusual or extraordinary items may require further documentation.
13. The total of lines 1 through 12.
Credits:
14-21. Complete as applicable. Required documentation:
* Copy of the HUD 1 from the REO sale. If a 3rd Party Sale, bid
instructions and Escrow Agent / Attorney
Letter of Proceeds Breakdown.
* Copy of EOB for any MI or gov't guarantee
* All other credits need to be clearly defined on the 332 form
22. The total of lines 14 through 21.
Please Note: For HUD/VA loans, use line (18a) for Part A/Initial proceeds and
line (18b) for Part B/Supplemental proceeds.
Total Realized Loss (or Amount of Any Gain)
23. The total derived from subtracting line 22 from 13. If the amount
represents a realized gain, show the amount in parenthesis ( ).
Exhibit 3A: Calculation of Realized Loss/Gain Form 332
Prepared by: __________________ Date: _______________
Phone: ______________________ Email Address:_____________________
-------------------- ----------------------- -----------------------------
Servicer Loan No. Servicer Name Servicer Address
-------------------- ----------------------- -----------------------------
XXXXX FARGO BANK, N.A. Loan No._____________________________
Borrower's Name: _________________________________________________________
Property Address: _________________________________________________________
Liquidation Type: REO Sale 3rd Party Sale Short Sale Charge Off
Was this loan granted a Bankruptcy deficiency or cramdown Yes No
If "Yes", provide deficiency or cramdown amount _______________________________
Liquidation and Acquisition Expenses:
(1) Actual Unpaid Principal Balance of Mortgage Loan $ ______________
(1)
(2) Interest accrued at Net Rate ________________
(2)
(3) Accrued Servicing Fees ________________
(3)
(4) Attorney's Fees ________________
(4)
(5) Taxes (see page 2) ________________
(5)
(6) Property Maintenance _______________
(6)
(7) MI/Hazard Insurance Premiums (see page 2) ________________
(7)
(8) Utility Expenses ________________
(8)
(9) Appraisal/BPO ________________
(9)
(10) Property Inspections ________________
(10)
(11) FC Costs/Other Legal Expenses ________________
(11)
(12) Other (itemize) ________________
(12)
Cash for Keys__________________________ ________________
(12)
HOA/Condo Fees_______________________ ________________
(12)
______________________________________ ________________
(12)
Total Expenses $ _______________
(13)
Credits:
(14) Escrow Balance $ _______________
(14)
(15) HIP Refund ________________
(15)
(16) Rental Receipts ________________
(16)
(17) Hazard Loss Proceeds ________________
(17)
(18) Primary Mortgage Insurance / Gov't Insurance ________________
(18a) HUD Part A
________________
(18b) HUD Part B
(19) Pool Insurance Proceeds ________________
(19)
(20) Proceeds from Sale of Acquired Property ________________
(20)
(21) Other (itemize) ________________
(21)
_________________________________________ ________________
(21)
Total Credits $________________
(22)
Total Realized Loss (or Amount of Gain) $________________
(23)
Escrow Disbursement Detail
---------------- ------------- ---------------- ------------- --------------- ---------------- --------------
Type Date Paid Period of Total Paid Base Amount Penalties Interest
(Tax /Ins.) Coverage
---------------- ------------- ---------------- ------------- --------------- ---------------- --------------
---------------- ------------- ---------------- ------------- --------------- ---------------- --------------
---------------- ------------- ---------------- ------------- --------------- ---------------- --------------
---------------- ------------- ---------------- ------------- --------------- ---------------- --------------
---------------- ------------- ---------------- ------------- --------------- ---------------- --------------
---------------- ------------- ---------------- ------------- --------------- ---------------- --------------
---------------- ------------- ---------------- ------------- --------------- ---------------- --------------
---------------- ------------- ---------------- ------------- --------------- ---------------- --------------
---------------- ------------- ---------------- ------------- --------------- ---------------- --------------
Please be advised that failure to comply with ANY or all of the guidelines
entailed herein may result in issuance of late reporting fees.
(C) Copyright Xxxxx Fargo Bank, Corporate Trust Services
Contact us with Reporting Questions: XXXXxxxxxxXXX@XxxxxXxxxx.xxx
EXHIBIT EE
Exhibit EE: Standard File Layout - Master Servicing
Column Name Description Decimal Format Comment Max Size
----------- ----------- ------- -------------- --------
SER_INVESTOR_NBR A value assigned by the Servicer to define a group Text up to 10 digits 20
of loans.
LOAN_NBR A unique identifier assigned to each loan by the Text up to 10 digits 10
investor.
SERVICER_LOAN_NBR A unique number assigned to a loan by the Text up to 10 digits 10
Servicer. This may be different than the LOAN_NBR.
BORROWER_NAME The borrower name as received in the file. It is Maximum length of 30 (Last, First) 30
not separated by first and last name.
SCHED_PAY_AMT Scheduled monthly principal and scheduled interest 2 No commas(,) or dollar signs ($) 11
payment that a borrower is expected to pay, P&I
constant.
NOTE_INT_RATE The loan interest rate as reported by the Servicer. 4 Max length of 6 6
NET_INT_RATE The loan gross interest rate less the service fee 4 Max length of 6 6
rate as reported by the Servicer.
SERV_FEE_RATE The servicer's fee rate for a loan as reported by 4 Max length of 6 6
the Servicer.
SERV_FEE_AMT The servicer's fee amount for a loan as reported 2 No commas(,) or dollar signs ($) 11
by the Servicer.
NEW_PAY_AMT The new loan payment amount as reported by the 2 No commas(,) or dollar signs ($) 11
Servicer.
NEW_LOAN_RATE The new loan rate as reported by the Servicer. 4 Max length of 6 6
ARM_INDEX_RATE The index the Servicer is using to calculate a 4 Max length of 6 6
forecasted rate.
ACTL_BEG_PRIN_BAL The borrower's actual principal balance at the 2 No commas(,) or dollar signs ($) 11
beginning of the processing cycle.
ACTL_END_PRIN_BAL The borrower's actual principal balance at the end 2 No commas(,) or dollar signs ($) 11
of the processing cycle.
BORR_NEXT_PAY_DUE_DATE The date at the end of processing cycle that the MM/DD/YYYY 10
borrower's next payment is due to the Servicer, as
reported by Servicer.
SERV_CURT_AMT_1 The first curtailment amount to be applied. 2 No commas(,) or dollar signs ($) 11
SERV_CURT_DATE_1 The curtailment date associated with the first MM/DD/YYYY 10
curtailment amount.
CURT_ADJ_ AMT_1 The curtailment interest on the first curtailment 2 No commas(,) or dollar signs ($) 11
amount, if applicable.
SERV_CURT_AMT_2 The second curtailment amount to be applied. 2 No commas(,) or dollar signs ($) 11
SERV_CURT_DATE_2 The curtailment date associated with the second MM/DD/YYYY 10
curtailment amount.
CURT_ADJ_ AMT_2 The curtailment interest on the second curtailment 2 No commas(,) or dollar signs ($) 11
amount, if applicable.
SERV_CURT_AMT_3 The third curtailment amount to be applied. 2 No commas(,) or dollar signs ($) 11
SERV_CURT_DATE_3 The curtailment date associated with the third MM/DD/YYYY 10
curtailment amount.
CURT_ADJ_AMT_3 The curtailment interest on the third curtailment 2 No commas(,) or dollar signs ($) 11
amount, if applicable.
PIF_AMT The loan "paid in full" amount as reported by the 2 No commas(,) or dollar signs ($) 11
Servicer.
PIF_DATE The paid in full date as reported by the Servicer. MM/DD/YYYY 10
ACTION_CODE The standard FNMA numeric code used to Action Code Key: 15=Bankruptcy, 2
indicate the default/delinquent status of 30=Foreclosure, , 60=PIF,
a particular loan. 63=Substitution,
65=Repurchase,70=REO
INT_ADJ_AMT The amount of the interest adjustment as reported 2 No commas(,) or dollar signs ($) 11
by the Servicer.
SOLDIER_SAILOR_ADJ_AMT The Soldier and Sailor Adjustment amount, if 2 No commas(,) or dollar signs ($) 11
applicable.
NON_ADV_LOAN_AMT The Non Recoverable Loan Amount, if applicable. 2 No commas(,) or dollar signs ($) 11
LOAN_LOSS_AMT The amount the Servicer is passing as a loss, if 2 No commas(,) or dollar signs ($) 11
applicable.
SCHED_BEG_PRIN_BAL The scheduled outstanding principal amount due at 2 No commas(,) or dollar signs ($) 11
the beginning of the cycle date to be passed
through to investors.
SCHED_END_PRIN_BAL The scheduled principal balance due to investors 2 No commas(,) or dollar signs ($) 11
at the end of a processing cycle.
SCHED_PRIN_AMT The scheduled principal amount as reported by the 2 No commas(,) or dollar signs ($) 11
Servicer for the current cycle -- only
applicable for Scheduled/Scheduled Loans.
SCHED_NET_INT The scheduled gross interest amount less the 2 No commas(,) or dollar signs ($) 11
service fee amount for the current cycle
as reported by the Servicer -- only
applicable for Scheduled/Scheduled Loans.
ACTL_PRIN_AMT The actual principal amount collected by the 2 No commas(,) or dollar signs ($) 11
Servicer for the current reporting cycle
-- only applicable for Actual/Actual
Loans.
ACTL_NET_INT The actual gross interest amount less the service 2 No commas(,) or dollar signs ($) 11
fee amount for the current reporting cycle
as reported by the Servicer -- only
applicable for Actual/Actual Loans.
PREPAY_PENALTY_ AMT The penalty amount received when a borrower 2 No commas(,) or dollar signs ($) 11
prepays on his loan as reported by the Servicer.
PREPAY_PENALTY_ WAIVED The prepayment penalty amount for the loan waived 2 No commas(,) or dollar signs ($) 11
by the servicer.
MOD_DATE The Effective Payment Date of the Modification for MM/DD/YYYY 10
the loan.
MOD_TYPE The Modification Type. Varchar - value can be alpha or 30
numeric
DELINQ_P&I_ADVANCE_AMT The current outstanding principal and interest 2 No commas(,) or dollar signs ($) 11
advances made by Servicer.
