EXHIBIT 4
GS MORTGAGE SECURITIES CORP.,
Depositor,
OCWEN LOAN SERVICING, LLC,
Servicer,
and
DEUTSCHE BANK NATIONAL TRUST COMPANY,
Trustee
-----------------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of October 1, 2006
-----------------------------------------------
GSAMP TRUST 2006-S6
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-S6
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 Servicer....
Section 2.04 [Reserved]...................................................
Section 2.05 Execution and Delivery of Certificates.......................
Section 2.06 REMIC Matters................................................
Section 2.07 Representations and Warranties of the Depositor..............
Section 2.08 Enforcement of Obligations for Breach of Mortgage Loan
Representations.............................................
Section 2.09 Purposes and Powers of the Trust.............................
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicer to Service Mortgage Loans...........................
Section 3.02 Subservicing Agreements between the Servicer and
Subservicers................................................
Section 3.03 Successor Subservicers.......................................
Section 3.04 Liability of the Servicer....................................
Section 3.05 No Contractual Relationship between Subservicers and the
Trustee.....................................................
Section 3.06 Assumption or Termination of Subservicing Agreements by
Trustee.....................................................
Section 3.07 Collection of Certain Mortgage Loan Payments.................
Section 3.08 Subservicing Accounts........................................
Section 3.09 [Reserved]...................................................
Section 3.10 Collection Account...........................................
Section 3.11 Withdrawals from the Collection Account......................
Section 3.12 Investment of Funds in the Collection Account and the
Distribution Account........................................
Section 3.13 Maintenance of Hazard Insurance, Errors and Omissions and
Fidelity Coverage...........................................
Section 3.14 Enforcement of Due-on-Sale Clauses; Assumption Agreements....
Section 3.15 Realization upon Defaulted Mortgage Loans....................
Section 3.16 Release of Mortgage Files....................................
Section 3.17 Title, Conservation and Disposition of REO Property..........
Section 3.18 [Reserved]...................................................
Section 3.19 Access to Certain Documentation and Information Regarding
the Mortgage Loans..........................................
Section 3.20 Documents, Records and Funds in Possession of the
Servicer to Be Held for the Trustee.........................
Section 3.21 Servicing Compensation.......................................
Section 3.22 Annual Statement as to Compliance............................
Section 3.23 Assessments of Compliance and Attestation Reports............
Section 3.24 Trustee 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...............
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 SERVICER
Section 6.01 Respective Liabilities of the Depositor and the Servicer.....
Section 6.02 Merger or Consolidation of the Depositor or the Servicer.....
Section 6.03 Limitation on Liability of the Depositor, the Servicer
and Others..................................................
Section 6.04 Limitation on Resignation of the Servicer....................
Section 6.05 Additional Indemnification by the Servicer; Third Party
Claims......................................................
ARTICLE VII
DEFAULT
Section 7.01 Events of Default............................................
Section 7.02 Trustee to Act; Appointment of Successor Servicer............
Section 7.03 Notification to Certificateholders...........................
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of the Trustee........................................
Section 8.02 Certain Matters Affecting the Trustee........................
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans........
Section 8.04 Trustee May Own Certificates.................................
Section 8.05 Trustee's Fees and Expenses..................................
Section 8.06 Eligibility Requirements for the Trustee.....................
Section 8.07 Resignation and Removal of the Trustee.......................
Section 8.08 Successor Trustee............................................
Section 8.09 Merger or Consolidation of the Trustee.......................
Section 8.10 Appointment of Co-Trustee or Separate Trustee................
Section 8.11 Tax Matters..................................................
Section 8.12 Periodic Filings.............................................
Section 8.13 Tax Treatment of Basis Risk Carry Forward Amounts, the
Supplemental Interest Trust, the Yield Maintenance
Agreement and the Interest Rate Swap Agreement..............
Section 8.14 Intention of the Parties and Interpretation..................
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Liquidation or Purchase of the Mortgage
Loans.......................................................
Section 9.02 Final Distribution on the Certificates.......................
Section 9.03 Additional Termination Requirements..........................
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Amendment....................................................
Section 10.02 Recordation of Agreement; Counterparts.......................
Section 10.03 Governing Law................................................
Section 10.04 Intention of Parties.........................................
Section 10.05 Notices......................................................
Section 10.06 Severability of Provisions...................................
Section 10.07 Assignment; Sales; Advance Facilities........................
Section 10.08 Limitation on Rights of Certificateholders...................
Section 10.09 Inspection and Audit Rights..................................
Section 10.10 Certificates Nonassessable and Fully Paid....................
Section 10.11 Waiver of Jury Trial.........................................
Section 10.12 Limitation of Damages........................................
Section 10.13 Third Party Rights...........................................
Section 10.14 No Solicitation..............................................
Section 10.15 Regulation AB Compliance; Intent of the Parties;
Reasonableness..............................................
SCHEDULES
Schedule I Mortgage Loan Schedule
Schedule II Representations and Warranties of Ocwen, as Servicer
EXHIBITS
Exhibit A-1 Form of Class A and Class M Certificates
Exhibit B Form of Class P Certificate
Exhibit C Form of Class R Certificate
Exhibit D-1 Form of Class X Certificate
Exhibit D-2 Form of Class X-1 Certificate
Exhibit E Form of Initial Certification of the Trustee
Exhibit F Form of Document Certification and Exception Report of the Trustee
Exhibit G Form of Residual Transfer Affidavit
Exhibit H Form of Transferor Certificate
Exhibit I-1 Form of Rule 144A Letter
Exhibit I-2 Form of Investment Letter (Non Rule 144A)
Exhibit J Form of Request for Release
Exhibit K Form of Contents for Each Mortgage File
Exhibit L [Reserved]
Exhibit M Form of Certification to be provided with Form 10-K
Exhibit N Form of Trustee Certification to be provided to Depositor
Exhibit O Form of Servicer Certification to be provided to Depositor
Exhibit P Form of Power of Attorney
Exhibit Q-1 American Home Agreements
Exhibit Q-2 Fremont Agreements
Exhibit Q-3 Quicken Agreement
Exhibit R Servicing Criteria to Be Addressed in Assessment of Compliance
Exhibit S Form 10-D, Form 8-K and Form 10-K Reporting Responsibility
Exhibit T Yield Maintenance Agreement
Exhibit U Interest Rate Swap Agreement
Exhibit V Representations and Warranties Agreement
Exhibit W Form of Additional Disclosure Notification
THIS POOLING AND SERVICING AGREEMENT, dated as of October 1, 2006,
is among GS MORTGAGE SECURITIES CORP., a Delaware corporation (the "Depositor"),
OCWEN LOAN SERVICING, LLC, a Delaware limited liability company ("Ocwen" or the
"Servicer"), and DEUTSCHE BANK NATIONAL TRUST COMPANY, a national banking
association, as trustee (the "Trustee").
W I T N E S S E T H:
In consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
PRELIMINARY STATEMENT
The Trustee shall elect that four segregated asset pools within the
Trust Fund (exclusive of (i) the Prepayment Premiums, (ii) the Interest Rate
Swap Agreement and the Yield Maintenance Agreement, (iii) the Supplemental
Interest Trust and the Supplemental Interest Trust Account, (iv) the Excess
Reserve Fund Account and (v) the right of the Offered Certificates (other than
the Class A-2 Certificates) to receive Basis Risk Carry Forward Amounts and the
obligation to pay Class IO Shortfalls) be treated for federal income tax
purposes as comprising four REMICs (each, a "Trust REMIC" or, in the
alternative, Pooling-Tier REMIC-1, Pooling-Tier REMIC-2, the Lower-Tier REMIC,
the Upper-Tier REMIC, respectively). The Class UT-X, Class UT-IO Interest and
each Class of Offered Certificates (other than the right of each Class of
Offered Certificates (other than the Class A-2 Certificates) to receive Basis
Risk Carry Forward Amounts and the obligation to pay Class IO Shortfalls)
represents ownership of a regular interest in a REMIC for purposes of the REMIC
Provisions. The Class X-1 Certificates shall not be treated as issued by any
Trust REMIC.
The Class R Certificates represent ownership of the sole class of
residual interest in each of Pooling-Tier REMIC-1, 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 described herein is the Closing Date. The
latest possible maturity date for each regular interest is the latest date
referenced in Section 2.06.
The Upper-Tier REMIC shall hold as assets the several classes of
uncertificated Lower-Tier Regular Interests, set out below. The Lower-Tier REMIC
shall hold as assets the several classes of uncertificated Pooling-Tier REMIC-2
Regular Interests set out below. Pooling-Tier REMIC-2 shall hold as assets the
several classes of uncertificated Pooling-Tier REMIC-1 Regular Interests set out
below. 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
and the Yield Maintenance Agreement, (iii) the Supplemental Interest Trust, (iv)
the Excess Reserve Fund Account and (v) the right of the Offered Certificates
(other than the Class A-2 Certificates) to receive Basis Risk Carry Forward
Amounts and the obligation to pay Class IO Shortfalls). The Class LT-A-1A, Class
LT-A-1B, Class LT-A-1C, Class LT-A-2, Class LT-A-3, Class LT-M-1, Class LT-M-2,
Class LT-M-3, Class LT-M-4, Class LT-M-5, Class LT-M-6 and Class LT-M-7
Interests are hereby designated the LT-Accretion Directed Classes (the
"LT-Accretion Directed Classes").
For federal income tax purposes, each Class of Offered Certificates
represents a beneficial ownership of a regular interest in the Upper-Tier REMIC
and (other than in the case of the Class A-2 Certificates) the right to receive
Basis Risk Carry Forward Amounts, and each Class of Offered Certificates is
subject to the obligation to pay Class IO Shortfalls, the Class X Certificates
represent beneficial ownership of the Class UT-X Interest, the Class UT-IO
Interest, the Interest Rate Swap Agreement, the Yield Maintenance Agreement, the
Supplemental Interest Trust and the Supplemental Interest Trust Account, the
Excess Reserve Fund Account and the right to receive Class IO Shortfalls,
subject to the obligation to pay Basis Risk Carry Forward Amounts, and the Class
P Certificates represent beneficial ownership of the Prepayment Premiums, which
portions of the Trust Fund shall be treated as a grantor trust.
Pooling-Tier REMIC-1
Pooling-Tier REMIC-1 shall issue the following interests in
Pooling-Tier REMIC-1, and each such interest is hereby designated as a regular
interest in the Pooling-Tier REMIC-1. Pooling-Tier REMIC-1 shall also issue the
Class PT1-R Interest, which shall be represented by the Class R Certificates.
The Class PT1-R Interest is hereby designated as the sole class of residual
interest in Pooling-Tier REMIC-1. The Class R-X Certificates shall have no Class
Certificate Balance and shall have no interest rate.
Pooling-Tier REMIC-1 Pooling-Tier REMIC-1 Initial Pooling-Tier
Interest Interest Rate REMIC-1 Principal Amount
-------------------- -------------------- ------------------------
Class PT1-1 (1) $81,374,829.55
Class PT1-1F (1) $83,242,306.00
Class PT1-2A (2) $ 8,977,363.50
Class PT1-2B (3) $ 8,977,363.50
Class PT1-3A (2) $ 8,462,378.50
Class PT1-3B (3) $ 8,462,378.50
Class PT1-4A (2) $ 7,951,980.50
Class PT1-4B (3) $ 7,951,980.50
Class PT1-5A (2) $ 7,489,650.50
Class PT1-5B (3) $ 7,489,650.50
Class PT1-6A (2) $ 7,030,855.00
Class PT1-6B (3) $ 7,030,855.00
Class PT1-7A (2) $ 6,608,920.00
Class PT1-7B (3) $ 6,608,920.00
Class PT1-8A (2) $ 5,635,036.00
Class PT1-8B (3) $ 5,635,036.00
Class PT1-9A (2) $ 2,348,628.50
Class PT1-9B (3) $ 2,348,628.50
Class PT1-10A (2) $ 3,499,918.00
Class PT1-10B (3) $ 3,499,918.00
Class PT1-11A (2) $ 3,288,237.00
Class PT1-11B (3) $ 3,288,237.00
Class PT1-12A (2) $ 3,089,347.50
Class PT1-12B (3) $ 3,089,347.50
Class PT1-13A (2) $ 458,287.00
Class PT1-13B (3) $ 458,287.00
Class PT1-14A (2) $ 1,813,577.50
Class PT1-14B (3) $ 1,813,577.50
Class PT1-15A (2) $ 1,703,845.50
Class PT1-15B (3) $ 1,703,845.50
Class PT1-16A (2) $ 1,600,747.00
Class PT1-16B (3) $ 1,600,747.00
Class PT1-17A (2) $ 1,503,882.00
Class PT1-17B (3) $ 1,503,882.00
Class PT1-18A (2) $ 1,412,872.00
Class PT1-18B (3) $ 1,412,872.00
Class PT1-19A (2) $ 1,327,365.50
Class PT1-19B (3) $ 1,327,365.50
Class PT1-20A (2) $ 1,247,028.50
Class PT1-20B (3) $ 1,247,028.50
Class PT1-21A (2) $ 1,171,549.00
Class PT1-21B (3) $ 1,171,549.00
Class PT1-22A (2) $ 1,100,633.50
Class PT1-22B (3) $ 1,100,633.50
Class PT1-23A (2) $ 1,034,006.50
Class PT1-23B (3) $ 1,034,006.50
Class PT1-24A (2) $ 971,409.50
Class PT1-24B (3) $ 971,409.50
Class PT1-25A (2) $ 912,597.50
Class PT1-25B (3) $ 912,597.50
Class PT1-26A (2) $ 857,342.50
Class PT1-26B (3) $ 857,342.50
Class PT1-27A (2) $ 805,430.00
Class PT1-27B (3) $ 805,430.00
Class PT1-28A (2) $ 756,657.00
Class PT1-28B (3) $ 756,657.00
Class PT1-29A (2) $ 710,836.00
Class PT1-29B (3) $ 710,836.00
Class PT1-30A (2) $ 667,784.50
Class PT1-30B (3) $ 667,784.50
Class PT1-31A (2) $ 627,339.50
Class PT1-31B (3) $ 627,339.50
Class PT1-32A (2) $ 589,341.00
Class PT1-32B (3) $ 589,341.00
Class PT1-33A (2) $ 553,640.50
Class PT1-33B (3) $ 553,640.50
Class PT1-34A (2) $ 520,102.00
Class PT1-34B (3) $ 520,102.00
Class PT1-35A (2) $ 488,592.00
Class PT1-35B (3) $ 488,592.00
Class PT1-36A (2) $ 458,989.00
Class PT1-36B (3) $ 458,989.00
Class PT1-37A (2) $ 431,177.50
Class PT1-37B (3) $ 431,177.50
Class PT1-38A (2) $ 405,049.50
Class PT1-38B (3) $ 405,049.50
Class PT1-39A (2) $ 380,502.50
Class PT1-39B (3) $ 380,502.50
Class PT1-40A (2) $ 357,442.50
Class PT1-40B (3) $ 357,442.50
Class PT1-41A (2) $ 335,777.00
Class PT1-41B (3) $ 335,777.00
Class PT1-42A (2) $ 315,423.50
Class PT1-42B (3) $ 315,423.50
Class PT1-43A (2) $ 296,302.50
Class PT1-43B (3) $ 296,302.50
Class PT1-44A (2) $ 278,339.50
Class PT1-44B (3) $ 278,339.50
Class PT1-45A (2) $ 261,464.00
Class PT1-45B (3) $ 261,464.00
Class PT1-46A (2) $ 245,610.00
Class PT1-46B (3) $ 245,610.00
Class PT1-47A (2) $ 3,798,588.50
Class PT1-47B (3) $ 3,798,588.50
Class PT1-R (4) (4)
------------------------
(1) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-1 Interest Rate") equal to the Pooling-Tier
REMIC-1 WAC Rate.
(2) For any Distribution Date (and the related Interest Accrual Period) this
Pooling-Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-1 Interest Rate") equal to the product of
(i) 2 and (ii) the Pooling-Tier REMIC-1 WAC Rate, subject to a maximum
rate of 9.94%.
(3) For any Distribution Date (and the related Interest Accrual Period) this
Pooling-Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-1 Interest Rate") equal to the excess, if
any, of (A) the product of (i) 2 and (ii) the Pooling-Tier REMIC-1 WAC
Rate over (B) 9.94%.
(4) The Class PT1-R Interest shall not bear interest and shall not have a
principal balance.
On each Distribution Date, the Trustee shall first pay from the
Trust Fund and charge as an expense of Pooling-Tier REMIC-1 all expenses of the
Trust for such Distribution Date. Such expense, other than Servicing Fees and
Trustee Fees, shall be allocated in the same manner as Realized Losses.
On each Distribution Date, the interest distributable in respect of
the Mortgage Loans for such Distribution Date shall be deemed to be distributed
to the Pooling-Tier REMIC-1 Regular Interests at the rates shown above.
On each Distribution Date, Realized Losses, Subsequent Recoveries
and payments of principal in respect of the Mortgage Loans shall be allocated
sequentially to the outstanding Pooling-Tier REMIC-1 Regular Interest with the
lowest numerical designation (other than the Class PT1-1 Interest) such that, at
all times, the aggregate Pooling-Tier Principal Amount of such Pooling-Tier
REMIC-1 Regular Interests equals the aggregate Class Certificate Balance of the
then outstanding LIBOR Certificates, and otherwise to Class PT1-1 Interest until
the Pooling-Tier REMIC-1 Principal Amount of each such interest is reduced to
zero; provided that, with respect to Pooling-Tier REMIC-1 Regular Interests
relating to certificates with the same numerical designation, such Realized
Losses, Subsequent Recoveries and payments of principal shall be allocated pro
rata between such Pooling-Tier REMIC-1 Regular Interests.
Pooling-Tier REMIC-2
Pooling-Tier REMIC-2 shall issue the following interests in
Pooling-Tier REMIC-2, and each such interest, other than the Class PT2-R
Interest, is hereby designated as a regular interest in Pooling-Tier REMIC-2.
The Class PT2-R Interest is hereby designated as the sole class of residual
interest in Pooling-Tier REMIC-2 and shall be represented by the Class R
Certificates.
Pooling-Tier Pooling-Tier Pooling-Tier REMIC-2 Corresponding Corresponding Corresponding
REMIC-2 REMIC-2 Initial Principal Pooling-Tier REMIC-2 Pooling-Tier REMIC-1 Scheduled Crossover
Interest Interest Rate Amount IO Interest Regular Interest Distribution Date
--------------- ------------- -------------------- -------------------- -------------------- -------------------
Class PT2-1 (1) $ 81,374,829.55 X/X X/X X/X
Xxxxx XX0-0X (1) $ 83,242,306.00 N/A N/A N/A
Class PT2-2A (2) $ 8,977,363.50 Class PT2-IO-2 N/A N/A
Class PT2-2B (3) $ 8,977,363.50 N/A N/A N/A
Class PT2-3A (2) $ 8,462,378.50 Class PT2-IO-3 N/A N/A
Class PT2-3B (3) $ 8,462,378.50 N/A N/A N/A
Class PT2-4A (2) $ 7,951,980.50 Class PT2-IO-4 N/A N/A
Class PT2-4B (3) $ 7,951,980.50 N/A N/A N/A
Class PT2-5A (2) $ 7,489,650.50 Class PT2-IO-5 N/A N/A
Class PT2-5B (3) $ 7,489,650.50 N/A N/A N/A
Class PT2-6A (2) $ 7,030,855.00 Class PT2-IO-6 N/A N/A
Class PT2-6B (3) $ 7,030,855.00 N/A N/A N/A
Class PT2-7A (2) $ 6,608,920.00 Class PT2-IO-7 N/A N/A
Class PT2-7B (3) $ 6,608,920.00 N/A N/A N/A
Class PT2-8A (2) $ 5,635,036.00 Class PT2-IO-8 N/A N/A
Class PT2-8B (3) $ 5,635,036.00 N/A N/A N/A
Class PT2-9A (2) $ 2,348,628.50 Class PT2-IO-9 N/A N/A
Class PT2-9B (3) $ 2,348,628.50 N/A N/A N/A
Class PT2-10A (2) $ 3,499,918.00 Class PT2-IO-10 N/A N/A
Class PT2-10B (3) $ 3,499,918.00 N/A N/A N/A
Class PT2-11A (2) $ 3,288,237.00 Class PT2-IO-11 N/A N/A
Class PT2-11B (3) $ 3,288,237.00 N/A N/A N/A
Class PT2-12A (2) $ 3,089,347.50 Class PT2-IO-12 N/A N/A
Class PT2-12B (3) $ 3,089,347.50 N/A N/A N/A
Class PT2-13A (2) $ 458,287.00 Class PT2-IO-13 N/A N/A
Class PT2-13B (3) $ 458,287.00 N/A N/A N/A
Class PT2-14A (2) $ 1,813,577.50 Class PT2-IO-14 N/A N/A
Class PT2-14B (3) $ 1,813,577.50 N/A N/A N/A
Class PT2-15A (2) $ 1,703,845.50 Class PT2-IO-15 N/A N/A
Class PT2-15B (3) $ 1,703,845.50 N/A N/A N/A
Class PT2-16A (2) $ 1,600,747.00 Class PT2-IO-16 N/A N/A
Class PT2-16B (3) $ 1,600,747.00 N/A N/A N/A
Class PT2-17A (2) $ 1,503,882.00 Class PT2-IO-17 N/A N/A
Class PT2-17B (3) $ 1,503,882.00 N/A N/A N/A
Class PT2-18A (2) $ 1,412,872.00 Class PT2-IO-18 N/A N/A
Class PT2-18B (3) $ 1,412,872.00 N/A N/A N/A
Class PT2-19A (2) $ 1,327,365.50 Class PT2-IO-19 N/A N/A
Class PT2-19B (3) $ 1,327,365.50 N/A N/A N/A
Class PT2-20A (2) $ 1,247,028.50 Class PT2-IO-20 N/A N/A
Class PT2-20B (3) $ 1,247,028.50 N/A N/A N/A
Class PT2-21A (2) $ 1,171,549.00 Class PT2-IO-21 N/A N/A
Class PT2-21B (3) $ 1,171,549.00 N/A N/A N/A
Class PT2-22A (2) $ 1,100,633.50 Class PT2-IO-22 N/A N/A
Class PT2-22B (3) $ 1,100,633.50 N/A N/A N/A
Class PT2-23A (2) $ 1,034,006.50 Class PT2-IO-23 N/A N/A
Class PT2-23B (3) $ 1,034,006.50 N/A N/A N/A
Class PT2-24A (2) $ 971,409.50 Class PT2-IO-24 N/A N/A
Class PT2-24B (3) $ 971,409.50 N/A N/A N/A
Class PT2-25A (2) $ 912,597.50 Class PT2-IO-25 N/A N/A
Class PT2-25B (3) $ 912,597.50 N/A N/A N/A
Class PT2-26A (2) $ 857,342.50 Class PT2-IO-26 N/A N/A
Class PT2-26B (3) $ 857,342.50 N/A N/A N/A
Class PT2-27A (2) $ 805,430.00 Class PT2-IO-27 N/A N/A
Class PT2-27B (3) $ 805,430.00 N/A N/A N/A
Class PT2-28A (2) $ 756,657.00 Class PT2-IO-28 N/A N/A
Class PT2-28B (3) $ 756,657.00 N/A N/A N/A
Class PT2-29A (2) $ 710,836.00 Class PT2-IO-29 N/A N/A
Class PT2-29B (3) $ 710,836.00 N/A N/A N/A
Class PT2-30A (2) $ 667,784.50 Class PT2-IO-30 N/A N/A
Class PT2-30B (3) $ 667,784.50 N/A N/A N/A
Class PT2-31A (2) $ 627,339.50 Class PT2-IO-31 N/A N/A
Class PT2-31B (3) $ 627,339.50 N/A N/A N/A
Class PT2-32A (2) $ 589,341.00 Class PT2-IO-32 N/A N/A
Class PT2-32B (3) $ 589,341.00 N/A N/A N/A
Class PT2-33A (2) $ 553,640.50 Class PT2-IO-33 N/A N/A
Class PT2-33B (3) $ 553,640.50 N/A N/A N/A
Class PT2-34A (2) $ 520,102.00 Class PT2-IO-34 N/A N/A
Class PT2-34B (3) $ 520,102.00 N/A N/A N/A
Class PT2-35A (2) $ 488,592.00 Class PT2-IO-35 N/A N/A
Class PT2-35B (3) $ 488,592.00 N/A N/A N/A
Class PT2-36A (2) $ 458,989.00 Class PT2-IO-36 N/A N/A
Class PT2-36B (3) $ 458,989.00 N/A N/A N/A
Class PT2-37A (2) $ 431,177.50 Class PT2-IO-37 N/A N/A
Class PT2-37B (3) $ 431,177.50 N/A N/A N/A
Class PT2-38A (2) $ 405,049.50 Class PT2-IO-38 N/A N/A
Class PT2-38B (3) $ 405,049.50 N/A N/A N/A
Class PT2-39A (2) $ 380,502.50 Class PT2-IO-39 N/A N/A
Class PT2-39B (3) $ 380,502.50 N/A N/A N/A
Class PT2-40A (2) $ 357,442.50 Class PT2-IO-40 N/A N/A
Class PT2-40B (3) $ 357,442.50 N/A N/A N/A
Class PT2-41A (2) $ 335,777.00 Class PT2-IO-41 N/A N/A
Class PT2-41B (3) $ 335,777.00 N/A N/A N/A
Class PT2-42A (2) $ 315,423.50 Class PT2-IO-42 N/A N/A
Class PT2-42B (3) $ 315,423.50 N/A N/A N/A
Class PT2-43A (2) $ 296,302.50 Class PT2-IO-43 N/A N/A
Class PT2-43B (3) $ 296,302.50 N/A N/A N/A
Class PT2-44A (2) $ 278,339.50 Class PT2-IO-44 N/A N/A
Class PT2-44B (3) $ 278,339.50 N/A N/A N/A
Class PT2-45A (2) $ 261,464.00 Class PT2-IO-45 N/A N/A
Class PT2-45B (3) $ 261,464.00 N/A N/A N/A
Class PT2-46A (2) $ 245,610.00 Class PT2-IO-46 N/A N/A
Class PT2-46B (3) $ 245,610.00 N/A N/A N/A
Class PT2-47A (2) $ 3,798,588.50 Class PT2-IO-47 N/A N/A
Class PT2-47B (3) $ 3,798,588.50 N/A N/A N/A
Class PT2-IO-2 (4) (4) N/A Class PT1-2A April 2007
Class PT2-IO-3 (4) (4) N/A Class PT1-3A May 2007
Class PT2-IO-4 (4) (4) N/A Class PT1-4A June 2007
Class PT2-IO-5 (4) (4) N/A Class PT1-5A July 2007
Class PT2-IO-6 (4) (4) N/A Class PT1-6A August 2007
Class PT2-IO-7 (4) (4) N/A Class PT1-7A September 2007
Class PT2-IO-8 (4) (4) N/A Class PT1-8A October 2007
Class PT2-IO-9 (4) (4) N/A Class PT1-9A May 2008
Class PT2-IO-10 (4) (4) N/A Class PT1-10A June 2008
Class PT2-IO-11 (4) (4) N/A Class PT1-11A July 2008
Class PT2-IO-12 (4) (4) N/A Class PT1-12A August 2008
Class PT2-IO-13 (4) (4) N/A Class PT1-13A December 2008
Class PT2-IO-14 (4) (4) N/A Class PT1-14A January 2009
Class PT2-IO-15 (4) (4) N/A Class PT1-15A February 2009
Class PT2-IO-16 (4) (4) N/A Class PT1-16A March 2009
Class PT2-IO-17 (4) (4) N/A Class PT1-17A April 2009
Class PT2-IO-18 (4) (4) N/A Class PT1-18A May 2009
Class PT2-IO-19 (4) (4) N/A Class PT1-19A June 2009
Class PT2-IO-20 (4) (4) N/A Class PT1-20A July 2009
Class PT2-IO-21 (4) (4) N/A Class PT1-21A August 2009
Class PT2-IO-22 (4) (4) N/A Class PT1-22A September 2009
Class PT2-IO-23 (4) (4) N/A Class PT1-23A October 2009
Class PT2-IO-24 (4) (4) N/A Class PT1-24A November 2009
Class PT2-IO-25 (4) (4) N/A Class PT1-25A December 2009
Class PT2-IO-26 (4) (4) N/A Class PT1-26A January 2010
Class PT2-IO-27 (4) (4) N/A Class PT1-27A February 2010
Class PT2-IO-28 (4) (4) N/A Class PT1-28A March 2010
Class PT2-IO-29 (4) (4) N/A Class PT1-29A April 2010
Class PT2-IO-30 (4) (4) N/A Class PT1-30A May 2010
Class PT2-IO-31 (4) (4) N/A Class PT1-31A June 2010
Class PT2-IO-32 (4) (4) N/A Class PT1-32A July 2010
Class PT2-IO-33 (4) (4) N/A Class PT1-33A August 2010
Class PT2-IO-34 (4) (4) N/A Class PT1-34A September 2010
Class PT2-IO-35 (4) (4) N/A Class PT1-35A October 2010
Class PT2-IO-36 (4) (4) N/A Class PT1-36A November 2010
Class PT2-IO-37 (4) (4) N/A Class PT1-37A December 2010
Class PT2-IO-38 (4) (4) N/A Class PT1-38A January 2011
Class PT2-IO-39 (4) (4) N/A Class PT1-39A February 2011
Class PT2-IO-40 (4) (4) N/A Class PT1-40A March 2011
Class PT2-IO-41 (4) (4) N/A Class PT1-41A April 2011
Class PT2-IO-42 (4) (4) N/A Class PT1-42A May 2011
Class PT2-IO-43 (4) (4) N/A Class PT1-43A June 2011
Class PT2-IO-44 (4) (4) N/A Class PT1-44A July 2011
Class PT2-IO-45 (4) (4) N/A Class PT1-45A August 2011
Class PT2-IO-46 (4) (4) N/A Class PT1-46A September 2011
Class PT2-IO-47 (4) (4) N/A Class PT1-47A October 2011
Class PT2-R (5) (5) 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 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 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 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 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 Scheduled 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
Scheduled Crossover Distribution Date, the Pooling-Tier REMIC-2 IO
Interest shall not accrue interest.
(5) The Class PT2-R Interest shall not bear interest and shall not have a
principal balance.
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 Mortgage Loans shall be allocated
sequentially to the outstanding Pooling-Tier REMIC-2 Regular Interests (other
than the Pooling-Tier REMIC-2 IO Interests) with the lowest numerical
designation (other than the Class PT2-1 Interest) such that, at all times, the
aggregate Pooling-Tier Principal Amount of such Pooling-Tier REMIC-2 Regular
Interests equals the aggregate Class Certificate Balance of the then outstanding
LIBOR Certificates and finally to the Class PT2-1 Interest until the
Pooling-Tier REMIC-2 Principal Amount of each such interest is reduced to zero;
provided that, for Pooling-Tier REMIC-2 Regular Interests with the same
numerical designation, such Realized Losses, Subsequent Recoveries and payments
of principal shall be allocated pro rata between such Pooling-Tier REMIC-2
Regular Interests.
Lower-Tier REMIC
The Lower-Tier REMIC shall issue the following interests, and each
such interest, other than the Class LT-R Interest, is hereby designated as a
regular interest in the Lower-Tier REMIC. The Class LT-R Interest is hereby
designated as the sole class of residual interest in the Lower-Tier REMIC and
shall be represented by the Class R Certificates.
Corresponding
Lower-Tier Lower-Tier Initial Lower-Tier Upper-Tier REMIC
Regular Interest Interest Rate Principal Amount Regular Interest
---------------- ------------- ---------------------------------------- ----------------
Class LT-A-1A (1) 1/2 initial Class Certificate Balance of A-1A
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-A-1B (1) 1/2 initial Class Certificate Balance of A-1B
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-A-1C (1) 1/2 initial Class Certificate Balance of A-1C
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-A-2 (1) 1/2 initial Class Certificate Balance of A-2
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-A-3 (1) 1/2 initial Class Certificate Balance of A-3
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-M-1 (1) 1/2 initial Class Certificate Balance of M-1
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-M-2 (1) 1/2 initial Class Certificate Balance of M-2
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-M-3 (1) 1/2 initial Class Certificate Balance of M-3
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-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-Accrual (1) 1/2 Pool Principal Balance plus 1/2 N/A
Overcollateralized Amount, less the
Amounts of the Class LT-FX and
Class LT-FL Interests
Class LT-FL (2) 0.001% aggregate Class Certificate N/A
Balance of Floating Rate
Certificates(4)
Class LT-FX (3) 0.001% (aggregate Stated Principal N/A
Balance of Mortgage Loans minus
aggregate Class Certificate Balance
of Floating Rate Certificates)(4)
Class LT-IO (5) (5) N/A
Class LT-R (6) (6) 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-FL 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 Class PT2-1 Interest and the Pooling-Tier
REMIC-2 IO Interests).
(3) The interest rate with respect to any Distribution Date for the Class
LT-FX Interest is a per annum variable rate (expressed as a percentage
rounded to eight decimal places) equal to the Pooling-Tier REMIC-2
Interest Rate of the Class PT2-1 Interest.
(4) For all Distribution Dates, the Lower-Tier Principal Amount of this
Lower-Tier Regular Interest 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) 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-1A, Class LT-A-1B, Class
LT-A-1C, Class LT-A-2, Class LT-A-3, Class LT-M-1, Class LT-M-2, Class LT-M-3,
Class LT-M-4, Class LT-M-5, Class LT-M-6 and Class LT-M-7 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, Class LT-FL Interest and Class LT-FX
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 UT-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, Class
LT-FL Interest and Class LT-FX 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 Offered 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, Class LT-FL Interest and the Class LT-FX
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-FL Interest so that its Lower-Tier Principal Amount (computed to at
least eight decimal places) is equal to 0.001% aggregate Class Certificate
Balance of Floating Rate Certificates, (ii) to the Class LT-FX Interest so that
its Lower-Tier Principal Amount (computed to at least eight decimal places) is
equal to 0.001% of the aggregate Stated Principal Balance of Mortgage Loans
minus the aggregate Class Certificate Balance of Floating Rate Certificates and
(iii) 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.
Upper-Tier
Upper-Tier REMIC Interest Initial Principal Corresponding Class
Interest Rate Upper-Tier Amount of Certificates
---------------- ---------- ----------------- -------------------
Class A-1A (1) $ 76,000,000 Class A-1A
Class A-1B (1) $ 19,000,000 Class A-1B
Class A-1C (1) $ 95,531,000 Class A-1C
Class A-2 (1) $ 62,603,000 Class A-2
Class A-3 (1) $ 19,053,000 Class A-3
Class M-1 (1) $ 35,241,000 Class M-1
Class M-2 (1) $ 8,324,000 Class M-2
Class M-3 (1) $ 13,281,000 Class M-3
Class M-4 (1) $ 6,376,000 Class M-4
Class M-5 (1) $ 7,260,000 Class M-5
Class M-6 (1) $ 5,667,000 Class M-6
Class M-7 (1) $ 5,844,000 Class M-7
Class UT-IO (2) (2) N/A
Class UT-X (3) (3) N/A
Class UT-R (4) (4) Class R
------------
(1) For any Distribution Date (and the related Interest Accrual Period), this
interest shall bear interest at the Pass-Through Rate for the
Corresponding Class of Certificates (without reduction in the WAC Cap, in
the case of the LIBOR Certificates, for Swap Termination Payments).
(2) 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.
(3) The Class UT-X Interest has an initial principal balance of $829,550 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, Class LT-FL and Class LT-FX 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 Lower-Tier Interest Rate for the
Class LT-Accrual Interest 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, Class LT-FL and Class LT-FX Interests), where
the Lower-Tier Interest Rate on the Class LT-Accrual Interest is subject
to a cap equal to zero and each LT-Accretion Directed Class is subject to
a cap equal to the Upper-Tier Interest Rate on its Corresponding Class of
Upper-Tier Regular Interest. With respect to any Distribution Date,
interest that so accrues on the notional principal balance of the Class
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.
(4) The Class UT-R Interest does not have an interest rate or a principal
balance.
On each Distribution Date, interest distributable in respect of the
Lower-Tier Interests for such Distribution Date shall be deemed to be
distributed 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
Regular Interests until the outstanding principal balance of each such interest
equals the outstanding Class Certificate Balance of the Corresponding Class of
Certificates as of such Distribution Date.
Certificates
Class Pass-Through Class Certificate
Class Designation Rate Balance
----------------- ------------------ -----------------
Class A-1A(4) (1) $ 76,000,000
Class A-1B(4) (1) $ 19,000,000
Class A-1C(4) (1) $ 95,531,000
Class A-2(4) (3) $ 62,603,000
Class A-3(4) (1) $ 19,053,000
Class M-1(4) (1) $ 35,241,000
Class M-2(4) (1) $ 8,324,000
Class M-3(4) (1) $ 13,281,000
Class M-4(4) (1) $ 6,376,000
Class M-5(4) (2) $ 7,260,000
Class M-6(4) (2) $ 5,667,000
Class M-7(4) (2) $ 5,844,000
Class X (5) $ 0
Class R (6) $ 0
------------------------
(1) Interest will accrue 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.
(2) Interest will accrue during each Interest Accrual Period at a per annum
rate equal to the lesser of (1) the applicable Fixed Rate and (2) the WAC
Cap.
(3) Interest will accrue during each Interest Accrual Period at a per annum
rate equal to the applicable Fixed Rate.
(4) Each of these Certificates (other than the Class A-2 Certificates) will
represent not only the ownership of a regular interest in the Upper-Tier
REMIC but also the right to receive payments from the Excess Reserve Fund
Account and in the case of the LIBOR Certificates, the Supplemental
Interest Trust. Each of these Certificates will also be subject to the
obligation to pay Class IO Shortfalls as described in Section 8.13. For
federal income tax purposes, any amount distributed on the Principal
Certificates on any such Distribution Date in excess of the amount
distributable on the Corresponding 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 regular interest on such Distribution
Date in excess of the amount distributable on the Offered Certificates on
such Distribution Date shall be treated as having been paid to the
Supplemental Interest Trust, all pursuant to, and as further provided in,
Section 8.13. The Trustee will treat an Offered Certificateholder's right
to receive payments from the Excess Reserve Fund Account and in the case
of the LIBOR Certificates, the Supplemental Interest Trust as payments
made pursuant to an interest rate cap contract written by the Class X
Certificateholders.
(5) The Class X Certificates will represent beneficial ownership of (i) the
Class UT-X Interest, (ii) the Class UT-IO Interest, (iii) the right to
receive Class IO Shortfalls, (iv) the Yield Maintenance Agreement, (v)
amounts in the Supplemental Interest Trust, including the Interest Rate
Swap Agreement subject to the obligation to pay Net Swap Payments, to pay
the LIBOR Certificates their respective Basis Risk Carry Forward Amounts
and (vi) amounts in the Excess Reserve Fund Account, subject to the
obligation to make payments from the Excess Reserve Fund Account to the
Offered Certificates in respect of Basis Risk Carry Forward Amounts. For
federal income tax purposes, the Trustee will treat a Class X
Certificateholder's obligation to make payments of Basis Risk Carry
Forward Amounts to the Offered Certificates (other than the Class A-2
Certificates) from the Excess Reserve Fund Account and, without
duplication, to the LIBOR Certificates from the Supplemental Interest
Trust as payments made pursuant to an interest rate cap contract written
by the Class X Certificateholders in favor of each applicable Class of
Offered Certificates. Such rights of the Class X Certificateholders and
Offered 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.
(6) The Class R Certificates do not have an interest rate. The Class R
Certificates represent ownership of the Class PT1-R Interest, the Class
PT2-R Interest, the Class LT-R Interest and the Class UT-R Interest.
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 $50, representing a 100% Percentage Interest in
the related Class, (b) the Class P Certificates will be a 1% Percentage Interest
in such Class, and (c) the Class X Certificates will be a 1% Percentage Interest
in such Class. The Class X-1 Certificates will be issued as a single Certificate
and will not have a Class Certificate Balance.
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-1A, Class A-1B, Class A-1C, Class
A-2 and Class A-3 Certificates.
Class A-1 Sequential
Certificates.................... Class A-1A and Class A-1B Certificates.
Class M Certificates.............. Class M-1, Class M-2, Class M-3, Class M-4,
Class M-5, Class M-6 and Class M-7
Certificates.
Class R Certificates.............. Class R Certificates.
Delay Certificates................ The Fixed Rate Certificates (other than the
Class A-2 Certificates) and Class X
Certificates.
ERISA-Restricted Certificates...... Class R, Class P, Class X and Class X-1
Certificates; any Certificate with a rating
below the lowest applicable permitted rating
under the Underwriters' Exemption.
Fixed Rate Certificates........... Class A-2, Class M-5, Class M-6 and Class
M-7 Certificates.
LIBOR Certificates................ The Class A-1A, Class A-1B, Class A-1C,
Class A-3, Class M-1, Class M-2, Class M-3
and Class M-4 Certificates.
Non-Delay Certificates............ LIBOR Certificates and Class A-2
Certificates.
Offered Certificates.............. All Classes of Certificates other than the
Private Certificates.
Physical Certificates............. Class P, Class X, Class X-1 and Class R
Certificates.
Private Certificates.............. Class P, Class X, Class X-1 and Class R
Certificates.
Rating Agencies................... Standard & Poor's and Moody's.
Regular Certificates.............. All Classes of Certificates other than the
Class P, Class X-1 and Class R Certificates.
Residual Certificates............. Class R Certificates.
Subordinated Certificates......... Class M-1, Class M-2, Class M-3, Class M-4,
Class M-5, Class M-6 and Class M-7
Certificates.
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Whenever used in this Agreement or in the
Preliminary Statement, the following words and phrases, unless the context
otherwise requires, shall have the meanings specified in this Article. Unless
otherwise specified, interest on the LIBOR Certificates will be calculated on
the basis of the actual number of days in the related Interest Accrual Period
and a 360-day year. Interest on the Fixed Rate Certificates and the Class X
Certificates will be calculated on the basis of a 360-day year consisting of
twelve 30-day months:
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.
Accrued Certificate Interest Distribution Amount: With respect to
any Distribution Date for each Class of Offered Certificates, the amount of
interest accrued during the related Interest Accrual Period at the applicable
Pass-Through Rate on the related Class Certificate Balance immediately prior to
such Distribution Date, as reduced by such Class's share of Net Prepayment
Interest Shortfalls and Relief Act Interest Shortfalls for the related Due
Period allocated to such Class pursuant to Section 4.02.
Additional Form 10-D Disclosure: As defined in Section 8.12(a)(i).
Additional Form 10-K Disclosure: As defined in Section 8.12(a)(iii).
Advance: Any P&I Advance or Servicing Advance.
Advance Facility: A financing or other facility as described in
Section 10.07.
Advance Reimbursement Amounts: As defined in Section 10.07.
Advancing Person: The Person to whom the Servicer's rights under
this Agreement to be reimbursed for any P&I Advances or Servicing Advances have
been assigned pursuant to Section 10.07.
Affiliate: With respect to any Person, any other Person controlling,
controlled by or under common control with such first Person. For the purposes
of this definition, "control" means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Agreement: This Pooling and Servicing Agreement and all amendments
or supplements hereto.
American Home: American Home Mortgage Corp., a New York corporation,
and its successors in interest.
American Home Agreements: Collectively, the American Home Purchase
Agreement, without the mortgage loan schedule exhibits, and the American Home
Assignment Agreement, copies of which are attached hereto as Exhibit Q-1.
American Home Assignment Agreement: The Assignment, Assumption and
Recognition Agreement, dated as of October 20, 2006, among the Sponsor, the
Depositor and American Home.
American Home Mortgage Loan: Each Mortgage Loan purchased by the
Sponsor pursuant to the American Home Purchase Agreement and identified as an
"American Home Mortgage Loan" on the Mortgage Loan Schedule.
American Home Purchase Agreement: The Amended and Restated Flow
Mortgage Loan Purchase and Warranties Agreements, dated as of June 1, 2006, by
and between American Home and the Sponsor, solely insofar as the American Home
Purchase Agreement relates to the American Home Mortgage Loans.
Amounts Held for Future Distribution: As to the Certificates on any
Determination Date, the aggregate amount held in the Collection Account at the
close of business on the related Remittance Date on account of (i) Principal
Prepayments, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds
on the Mortgage Loans received after the end of the related Prepayment Period
and (ii) all Scheduled Payments on the Mortgage Loans due after the end of the
related Due Period.
Annual Statement of Compliance: As defined in Section 3.22.
Applied Realized Loss Amount: With respect to any Distribution Date,
the amount, if any, by which the aggregate Class Certificate Balance of the
Offered Certificates after distributions of principal and after application of
any amounts received from the Supplemental Interest Trust on such Distribution
Date exceeds the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date.
Appraised Value: With respect to any Mortgage Loan, the value,
determined pursuant to the applicable Underwriting Guidelines, of the related
Mortgaged Property as of the origination of such 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.
Assessment of Compliance: As defined in Section 3.23.
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.
Attestation Report: As defined in Section 3.23.
Available Funds: With respect to any Distribution Date and the
Mortgage Loans to the extent received by the Trustee (x) the sum of (i) all
scheduled installments of interest (net of the related Expense Fees) and
principal due on the Due Date on such Mortgage Loans in the related Due Period
and received on or prior to the related Determination Date, together with any
P&I Advances in respect thereof; (ii) all Condemnation Proceeds, Insurance
Proceeds and Liquidation Proceeds received during the related Prepayment Period
(in each case, net of unreimbursed expenses incurred in connection with a
liquidation or foreclosure and unreimbursed Advances, if any); (iii) all partial
or full prepayments on the Mortgage Loans received during the related Prepayment
Period together with all Compensating Interest paid by the Servicer in
connection therewith (excluding Prepayment Premiums and Prepayment Interest
Excess); (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 or a Mortgage Loan repurchased by American Home, Fremont or the
Sponsor, as applicable, as of such Distribution Date; and (v) the proceeds
received with respect to the termination of the Trust Fund pursuant to clause
(a) of Section 9.01, reduced by (y) all amounts in reimbursement for P&I
Advances and Servicing Advances previously made with respect to the Mortgage
Loans, and other amounts as to which the Servicer, the Depositor or the Trustee
are entitled to be paid or reimbursed pursuant to this Agreement.
Basic Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the aggregate Principal Remittance Amount
for such Distribution Date over (ii) the Excess Overcollateralized Amount, if
any, for such Distribution Date.
Basis Risk Carry Forward Amount: With respect to each Class of
Offered Certificates (other than the Class A-2 Certificates), as of any
Distribution Date, the sum of (A) if on such Distribution Date the Pass-Through
Rate for any Class of Offered Certificates is based upon the WAC Cap, the excess
of (i) the amount of interest such Class of Certificates would otherwise be
entitled to receive on such Distribution Date had such rate not been based upon
the WAC Cap for such Distribution Date, over (ii) the amount of interest payable
on such Class of Certificates at the WAC Cap for such Distribution Date and (B)
the portion of any such excess described in clause (A) for such Class of
Certificates from all previous Distribution Dates not previously paid, together
with interest thereon at a rate equal to the Pass-Through Rate for such Class of
Certificates (without limiting that rate by the WAC Cap) for such Distribution
Date.
Basis Risk Payment: For any Distribution Date, an amount equal to
the lesser of (i) the aggregate Basis Risk Carry Forward Amounts for such
Distribution Date and (ii) the sum of (a) 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 Payments or (y) any Defaulted Swap
Termination Payment).
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, Florida and California, (b) the State in which the Servicer's servicing
operations are located, or (c) the State in which the Trustee's operations are
located, are authorized or obligated by law or executive order to be closed.
Certificate: Any one of the Certificates executed by the Trustee in
substantially the forms attached hereto as exhibits.
Certificate Balance: With respect to any Class of Certificates,
other than the Class P, Class R, Class X or Class X-1 Certificates, at any date,
the maximum dollar amount of principal to which the Holder thereof is then
entitled hereunder, such amount being equal to the Denomination thereof minus
all distributions of principal previously made with respect thereto and in the
case of any Subordinated Certificates, and reduced by the amount of any Applied
Realized Loss Amounts previously allocated to such Class of Subordinated
Certificates; provided, however, that immediately following the Distribution
Date on which a Subsequent Recovery is distributed, the Class Certificate
Balances of any Class or Classes of Certificates that have been previously
reduced by Applied Realized Loss Amounts will be increased, in order of
seniority, by the amount of the Subsequent Recovery distributed on such
Distribution Date (up to the amount of Applied Realized Loss Amounts allocated
to such Class or Classes). The Class P, Class R and Class X-1 Certificates have
no Certificate Balance. With respect to each Class X Certificate as of any date
of determination, an amount equal to the Percentage Interest evidenced by such
Certificate times the excess, if any, of (A) the then aggregate Uncertificated
Balances of the REMIC I Regular Interests over (B) the then aggregate Class
Certificate Balance of the Class A Certificates and Class M Certificates then
outstanding. The aggregate initial Class Certificate Balance of each Class of
Regular Certificates is set forth in the Preliminary Statement hereto.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Book-Entry Certificate.
Certificate Register: The register maintained pursuant to Section
5.02.
Certificateholder or Holder: The Person in whose name a Certificate
is registered in the Certificate Register, except that, solely for the purpose
of giving any consent pursuant to this Agreement, any Certificate registered in
the name of the Depositor or any Affiliate of the Depositor shall be deemed not
to be Outstanding and the Percentage Interest evidenced thereby shall not be
taken into account in determining whether the requisite amount of Percentage
Interests necessary to effect such consent has been obtained; provided, however,
that if any such Person (including the Depositor) owns 100% of the Percentage
Interests evidenced by a Class of Certificates, such Certificates shall be
deemed to be Outstanding for purposes of any provision hereof that requires the
consent of the Holders of Certificates of a particular Class as a condition to
the taking of any action hereunder. The Trustee is entitled to rely conclusively
on a certification of the Depositor or any Affiliate of the Depositor in
determining which Certificates are registered in the name of an Affiliate of the
Depositor.
Certification: As defined in Section 8.12(a)(iii).
Charged Off Loan: With respect to any Distribution Date, a defaulted
Mortgage Loan that is 180 days delinquent that has not yet been liquidated,
giving rise to a Realized Loss.
Class: All Certificates bearing the same class designation as set
forth in the Preliminary Statement.
Class A Certificates: As specified in the Preliminary Statement.
Class A Principal Distribution Amount: With respect to any
Distribution Date, the excess of (x) the aggregate Class Certificate Balance of
the Class A Certificates immediately prior to such Distribution Date over (y)
the lesser of: (A) the product of (i) 43.50% and (ii) 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-1A Certificates: All Certificates bearing the class
designation of "Class A-1A".
Class A-1B Certificates: All Certificates bearing the class
designation of "Class A-1B".
Class A-1C Certificates: All Certificates bearing the class
designation of "Class A-1C".
Class A-2 Certificates: All Certificates bearing the class
designation of "Class A-2".
Class A-3 Certificates: All Certificates bearing the class
designation of "Class A-3".
Class 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 Shortfall: 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 sum of the amounts payable on the Class IO Interest
and 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: The Class M-1, Class M-2, Class M-3, Class
M-4, Class M-5, Class M-6 and Class M-7 Certificates.
Class M-1 Certificates: All Certificates bearing the class
designation of "Class M-1."
Class M-1 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), and (B) the Class Certificate Balance of the Class M-1 Certificates
immediately prior to such Distribution Date over (ii) the lesser of (A) the
product of (x) 63.40% 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-2 Certificates: All Certificates bearing the class
designation of "Class M-2."
Class M-2 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date) and (C) the Class Certificate Balance of the
Class M-2 Certificates immediately prior to such Distribution Date, over (ii)
the lesser of (A) the product of (x) 68.10% 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-3 Certificates: All Certificates bearing the class
designation of "Class M-3."
Class M-3 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date) and (D) the Class
Certificate Balance of the Class M-3 Certificates immediately prior to such
Distribution Date, over (ii) the lesser of (A) the product of (x) 75.60% and (y)
the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date, and (B) the excess, if any, of the 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 Balance of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date) and (E) the Class Certificate Balance of the Class M-4 Certificates
immediately prior to such Distribution Date, over (ii) the lesser of (A) the
product of (x) 79.20% 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-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 Balance of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class M-4 Certificates (after
taking into account the distribution of the Class M-4 Principal Distribution
Amount on such Distribution Date) and (F) the Class Certificate Balance of the
Class M-5 Certificates immediately prior to such Distribution Date, over (ii)
the lesser of (A) the product of (x) 83.30% and (y) the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date, and (B) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over the Overcollateralization Floor.
Class M-6 Certificates: All Certificates bearing the class
designation of "Class M-6."
Class M-6 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class M-4 Certificates (after
taking into account the distribution of the Class M-4 Principal Distribution
Amount on such Distribution Date), (F) the Class Certificate Balance of the
Class 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) 86.50% 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 Balance of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class M-4 Certificates (after
taking into account the distribution of the Class M-4 Principal Distribution
Amount on such Distribution Date), (F) the Class Certificate Balance of the
Class 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) 89.80% 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 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: All Certificates bearing the class designation
of "Class R".
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-1 Certificates: All Certificates bearing the class
designation of "Class X-1".
Class X Distributable Amount: On any Distribution Date, (i) as a
distribution in respect of interest, the amount of interest that has accrued on
the Class X Interest and not applied as an Extra Principal Distribution Amount
on such Distribution Date, plus any such accrued interest remaining
undistributed from prior Distribution Dates, plus, without duplication, (ii) as
a distribution in respect of principal, any portion of the principal balance of
the Class UT-X Interest which is distributable as an Overcollateralization
Reduction Amount, minus (iii) any amounts paid as a Basis Risk Payment.
Closing Date: October 20, 2006.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
Collection Account: As defined in Section 3.10(a).
Combined Loan-to-Value Ratio or CLTV: As of the date of origination
and as to any Mortgage Loan, the ratio, expressed as a percentage, of (a) the
sum of (i) the outstanding principal balance of the 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 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, the lesser of (a)
the Prepayment Interest Shortfall, if any, for such Distribution Date, with
respect to Principal Prepayments in Full occurring during the portion of the
related Prepayment Period in the calendar month preceding such Distribution
Date, and (b) the Servicing Fee payable to the Servicer for such Distribution
Date.
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 remaining after, or not otherwise required to be
applied to, the satisfaction of any related First Lien Mortgage Loan.
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: The designated office of the Trustee in the
State of California at which at any particular time its corporate trust business
with respect to this Agreement is administered, which office at the date of the
execution of this Agreement is located at 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx,
Xxxxxxxxxx 00000-0000, Attn: Trust Administration-GS066S, facsimile no. (714)
247-6478 and which is the address to which notices to and correspondence with
the Trustee should be directed.
Corresponding Class: The Class of interests in one Trust REMIC
created under this Agreement that corresponds to the Class of interests in
another such Trust REMIC or to a Class of Certificates or the Class UT-X
Interest in the manner set out below:
Corresponding Corresponding
Lower-Tier REMIC Upper-Tier REMIC Corresponding Class
Class Designation Regular Interest of Certificates
----------------- ---------------- -------------------
Class LT-A-1A Class A-1A Class A-1A
Class LT-A-1B Class A-1B Class A-1B
Class LT-A-1C Class A-1C Class A-1C
Class LT-A-2 Class A-2 Class A-2
Class LT-A-3 Class A-3 Class A-3
Class LT-M-1 Class M-1 Class M-1
Class LT-M-2 Class M-2 Class M-2
Class LT-M-3 Class M-3 Class M-3
Class LT-M-4 Class M-4 Class M-4
Class LT-M-5 Class M-5 Class M-5
Class LT-M-6 Class M-6 Class M-6
Class LT-M-7 Class M-7 Class M-7
N/A Class UT-X Class X
Class LT-IO Class UT-IO Class X
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 Percentage: As of any date of determination, the
percentage equivalent of a fraction, the numerator of which is the aggregate
amount of Realized Losses on the Mortgage Loans for the period from the Cut-off
Date to the date of determination and the denominator of which is the Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date.
Custodial File: With respect to each Mortgage Loan, any Mortgage
Loan Document which is delivered to the Trustee or which at any time comes into
the possession of the Trustee.
Cut-off Date: October 1, 2006.
Cut-off Date Pool Principal Balance: The aggregate Stated Principal
Balance of all Mortgage Loans as of the Cut-off Date.
Data Tape Information: The information provided by the Original Loan
Sellers or the Servicer as of the Cut-off Date to the Depositor setting forth
the following information with respect to each Mortgage Loan: (1) the 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, manufactured housing); (6) the original months to maturity or the
remaining months to maturity from the Cut-off Date, in any case based on the
original amortization schedule and, if different, the maturity expressed in the
same manner but based on the actual amortization schedule; (7) the 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) the type of Mortgage Loan (i.e., fixed rate,
second lien); (16) a code indicating the purpose of the loan (i.e., purchase,
rate and term refinance, equity take-out refinance); (17) a code indicating the
documentation style (i.e., full documentation, limited documentation or stated
income); (18) the loan credit classification (as described in the Underwriting
Guidelines); (19) whether such Mortgage Loan provides for a Prepayment Premium;
(20) the Prepayment Premium period of such Mortgage Loan, if applicable; (21) a
description of the Prepayment Premium, if applicable; (22) the Mortgage Interest
Rate as of origination; (23) the credit risk score (FICO score) at origination;
(24) the date of origination; (25) a code indicating whether the Mortgage Loan
has been modified; (26) the current Combined Loan-to-Value Ratio; (27) the Due
Date for the first Scheduled Payment; (28) the original Scheduled Payment due;
(29) with respect to the related Mortgagor, the debt-to-income ratio; (30) the
Appraised Value of the Mortgaged Property; (31) the sales price of the Mortgaged
Property if the Mortgage Loan was originated in connection with the purchase of
the Mortgaged Property; (32) a code indicating whether a Mortgage Loan is or has
been 30 days delinquent; (33) the outstanding principal balance of the related
First Lien Mortgage Loan; (34) with respect to each MERS Designated Mortgage
Loan, the MERS identification number; and (35) whether such Mortgage Loan is an
American Home Mortgage Loan, Fremont Mortgage Loan, Quicken Mortgage Loan or
Conduit 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).
Delay Certificates: As specified in the Preliminary Statement.
Deleted Mortgage Loan: As defined in Section 2.03(b).
Delinquent: With respect to any Mortgage Loan, means any monthly
payment that is due on a Due Date that is not made by the close of business on
the next scheduled Due Date for that Mortgage Loan.
Denomination: With respect to each Certificate, the amount set forth
on the face thereof as the "Initial Certificate Balance of this Certificate" or
the Percentage Interest appearing on the face thereof.
Depositor: GS Mortgage Securities Corp., a Delaware corporation, and
its successors in interest.
Depository: The initial Depository shall be The Depository Trust
Company, the nominee of which is CEDE & Co., as the registered Holder of the
Book-Entry Certificates. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(a)(5) of the Uniform Commercial Code of
the State of New York.
Depository Institution: Any depository institution or trust company,
including the Trustee, that (a) is incorporated under the laws of the United
States of America or any State thereof, (b) is subject to supervision and
examination by federal or state banking authorities and (c) has outstanding
unsecured commercial paper or other short-term unsecured debt obligations that
are rated P-1 by Moody's, F1+ by Fitch and A-1 by Standard & Poor's, to the
extent they are Rating Agencies hereunder.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: With respect to any Distribution Date, the 15th
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.
Disqualified Non-U.S. Person: With respect to a Residual
Certificate, (i) any Non-U.S. Person or agent thereof other than a Non-U.S.
Person that holds the Residual Certificate in connection with the conduct of a
trade or business within the United States and has furnished the transferor and
the Trustee with an effective IRS Form W-8ECI or (ii) any domestic entity
classified as a partnership under the Code if any of its direct or indirect
partners (other than through a U.S. corporation) are (or are permitted to be
under the applicable partnership agreement) Disqualified Non-U.S. Persons,
unless such Person described in clause (i) or (ii) above has delivered to both
the transferor and the Trustee an opinion of a nationally recognized tax counsel
to the effect that the transfer of the Residual Certificate to it is in
accordance with the requirements of the Code and the regulations promulgated
thereunder and that such transfer of the Residual Certificate will not be
disregarded for federal income tax purposes.
Distribution Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.27(b) in the name of the Trustee
for the benefit of the Certificateholders and designated "Deutsche Bank National
Trust Company in trust for registered holders of GSAMP Trust 2006-S6 Mortgage
Pass-Through Certificates, Series 2006-S6." Funds in the Distribution Account
shall be held in trust for the Certificateholders for the uses and purposes set
forth in this Agreement and may be invested in Permitted Investments.
Distribution Date: The 25th day of each calendar month after the
initial issuance of the Certificates or, if such day is not a Business Day, the
next succeeding Business Day, commencing in November 2006.
Document Certification and Exception Report: The report attached to
Exhibit F hereto.
Due Date: The day of the month on which the Scheduled Payment is due
on a Mortgage Loan, exclusive of any days of grace.
Due Period: With respect to any Distribution Date, the period
commencing on the second day of the calendar month preceding the month in which
the Distribution Date occurs and ending on the first day of the calendar month
in which the Distribution Date occurs.
XXXXX: As defined in Section 8.12(a)(i).
Electing Person: As defined in Section 9.01.
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 Trustee.
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 Moody's and "F1+" by Fitch (or a comparable
rating if another Rating Agency is specified by the Depositor by written notice
to the Servicer 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.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Event of Default: As defined in Section 7.01.
Excess Overcollateralized Amount: With respect to any Distribution
Date, the excess, if any, of (a) the Overcollateralized Amount on such
Distribution Date over (b) the Specified Overcollateralized Amount for such
Distribution Date.
Excess Reserve Fund Account: The separate Eligible Account created
and maintained by the Trustee pursuant to Sections 3.27(a) in the name of the
Trustee for the benefit of the Regular Certificateholders and designated
"Deutsche Bank National Trust Company in trust for registered Holders of GSAMP
Trust 2006-S6, Mortgage Pass-Through Certificates, Series 2006-S6." Funds in the
Excess Reserve Fund Account shall be held in trust for the Regular
Certificateholders for the uses and purposes set forth in this Agreement.
Amounts on deposit in the Excess Reserve Fund Account shall not be invested.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Expense Fee Rate: As to each Mortgage Loan, a per annum rate equal
to the sum of the Servicing Fee Rate and the Trustee Fee Rate.
Expense Fees: As to each Mortgage Loan, the sum of the Servicing Fee
and the Trustee Fee.
Extra Principal Distribution Amount: As of any Distribution Date,
the lesser of (x) the related Total Monthly Excess Spread for such Distribution
Date and (y) the related Overcollateralization Deficiency for such Distribution
Date.
Xxxxxx Xxx: The Federal National Mortgage Association and its
successors in interest.
Xxxxxx Mae Guides: The Xxxxxx Xxx Seller's Guide and the Xxxxxx Mae
Servicer's Guide and all amendments or additions thereto.
FDIC: The Federal Deposit Insurance Corporation, and its successors
in interest.
Final Recovery Determination: With respect to any defaulted Mortgage
Loan or any REO Property (other than a Mortgage Loan or REO Property purchased
by American Home, Fremont, Quicken or the Sponsor as contemplated by this
Agreement), a determination made by the Servicer that all Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds and other payments or recoveries
which the Servicer, in its reasonable good faith judgment, expects to be finally
recoverable in respect thereof have been so recovered. The Servicer shall
maintain records, prepared by a Servicing Officer, of each Final Recovery
Determination made thereby.
Final Scheduled Distribution Date: The Final Scheduled Distribution
Date for each Class of Certificates is the Distribution Date occurring in
October 2036.
First Lien Mortgage Loan: With respect to each Mortgage Loan, any
mortgage loan secured by a first lien Mortgage on the related Mortgaged
Property.
Fitch: Fitch, Inc., and its successors in interest. If Fitch is
designated as a Rating Agency in the Preliminary Statement, for purposes of
Section 10.05(b) the address for notices to Fitch shall be Fitch, Inc., Xxx
Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: MBS Monitoring - GSAMP
Trust 2006-S6, or such other address as Fitch may hereafter furnish to the
Depositor, the Servicer and the Trustee.
Fixed Rate: With respect to each Class of Fixed-Rate Certificates,
the following percentages: Class A-2, 5.552%; Class M-5, 7.000%; Class M-6,
7.000% and Class M-7, 7.000%. On the first Distribution Date after the Optional
Termination Date, the Pass-Through Margins shall increase to: Class A-2, 6.052%;
Class M-5, 7.500%; Class M-6, 7.500% and Class M-7, 7.500%.
Fixed-Rate Certificates: As specified in the Preliminary Statement.
Forbearance: As defined in Section 3.07(a).
Form 8-K Disclosure Information: As defined in Section 8.12(a)(ii).
Xxxxxxx 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.
Xxxxxxx Mac Guides: The Xxxxxxx Mac Seller's & Servicer's Guide and
all amendments or additions thereto.
Fremont: Fremont Investment & Loan, a California industrial bank,
and its successors in interest.
Fremont Agreements: Collectively, the Fremont Purchase Agreement,
without the mortgage loan schedule exhibits, and the Fremont Assignment
Agreement, copies of which are attached hereto as Exhibit Q-2.
Fremont Assignment Agreement: The Assignment, Assumption and
Recognition Agreement, dated as of October 20, 2006, among the Sponsor, the
Depositor and Fremont.
Fremont Mortgage Loan: Each Mortgage Loan purchased by the Sponsor
pursuant to the Fremont Purchase Agreement and identified as a "Fremont Mortgage
Loan" on the Mortgage Loan Schedule.
Fremont Purchase Agreement: The Amended and Restated Flow 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.
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 the then-current version
of Appendix E of the Standard & Poor's Glossary.
Home Loan: A Mortgage Loan categorized as "Home Loan" pursuant to
the then-current version of Appendix E of Standard & Poor's Glossary.
Initial Certification: The Initial Certification submitted by the
Trustee substantially in the form of Exhibit E.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property.
Interest Accrual Period: With respect to each Class of Non-Delay
Certificates and each Class of Corresponding Lower-Tier REMIC Regular Interest
and any Distribution Date, the period commencing on the preceding Distribution
Date (or, for the initial Distribution Date, the Closing Date) and ending on the
day preceding the current Distribution Date, and with respect to the Delay
Certificates, each other Class of Lower-Tier REMIC Regular Interests, the
Pooling-Tier REMIC-1 Regular Interests and the Pooling-Tier REMIC-2 Regular
Interests, the Class UT-X Interest and the Class UT-IO Interest and any
Distribution Date, the calendar month preceding the month in which such
Distribution Date occurs. For purposes of computing interest accruals on each
Class of Non-Delay Certificates (other than the Class A-2 Certificates), each
Interest Accrual Period has the actual number of days in such period and each
year is assumed to have 360 days. For purposes of computing interest accruals on
each Class of Delay Certificates and the Class A-2 Certificates, each month is
assumed to have 30 days and each year is assumed to have 360 days.
Interest Rate Swap Agreement: The interest rate swap agreement,
dated as of October 20, 2006, and the related confirmation, dated October 20,
2006, between the Swap Provider and the Trustee, on behalf of the Trust or any
swap agreement (including any related schedules) entered into, a copy of which
is attached hereto as Exhibit U.
Interest Remittance Amount: With respect to any Distribution Date
and the Mortgage Loans, that portion of Available Funds attributable to interest
received or advanced with respect to the Mortgage Loans, net of the applicable
fees payable to the Servicer and Trustee for such Distribution Date, and net of
any Net Swap Payments and Swap Termination Payments, other than Defaulted Swap
Termination Payments, payable to the Swap Provider with respect to such
Distribution Date.
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, XXXX 00-00, XXXX 00-0, XXXX 95-60 or PTCE 96-23 or
similar exemption under Similar Law.
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.
LIBOR: With respect to any Interest Accrual Period for the LIBOR
Certificates, the rate determined by the Trustee on the related LIBOR
Determination Date on the basis of the offered rate for one-month U.S. dollar
deposits as such rate appears on Telerate Page 3750 as of 11:00 a.m. (London
time) on such date; provided, that if such rate does not appear on Telerate Page
3750, the rate for such date will be determined on the basis of the rates at
which one-month U.S. dollar deposits are offered by the Reference Banks at
approximately 11:00 a.m. (London time) on such date to prime banks in the London
interbank market. In such event, the Trustee shall request the principal London
office of each of the Reference Banks to provide a quotation of its rate. If at
least two such quotations are provided, the rate for that date will be the
arithmetic mean of the quotations (rounded upwards if necessary to the nearest
whole multiple of 1/16%). If fewer than two quotations are provided as
requested, the rate for that date will be the arithmetic mean of the rates
quoted by major banks in New York City, selected by the Trustee (after
consultation with the Depositor), at approximately 11:00 a.m. (New York City
time) on such date for one-month U.S. dollar deposits of leading European banks.
LIBOR Certificates: As specified in the Preliminary Statement.
LIBOR Determination Date: With respect to any Interest Accrual
Period for the LIBOR Certificates, the second London Business Day preceding the
commencement of such Interest Accrual Period.
Liquidated Mortgage Loan: With respect to any Distribution Date, (i)
a defaulted Mortgage Loan (including any REO Property) which was liquidated in
the calendar month preceding the month of such Distribution Date and as to which
the Servicer has certified (in accordance with this Agreement) that it has made
a Final Recovery Determination and (ii) any Charged Off Loan.
Liquidation Event: With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made as to such Mortgage Loan; (iii) such Mortgage Loan is
removed from coverage under this Agreement by reason of its being purchased,
sold, transferred or replaced pursuant to or as contemplated by this Agreement
or (iv) such Mortgage Loan becomes a Charged Off Loan pursuant to Section
3.15(b). With respect to any REO Property, either of the following events: (i) a
Final Recovery Determination is made as to such REO Property; or (ii) such REO
Property is removed from coverage under this Agreement by reason of its being
purchased pursuant to this Agreement.
Liquidation Proceeds: The amounts, including Insurance Proceeds,
Condemnation Proceeds or those received following the acquisition of REO
Property, received in connection with the liquidation of a defaulted Mortgage
Loan, whether through a trustee's sale, foreclosure sale or otherwise, including
any Subsequent Recoveries in each case, which are remaining after, or not
otherwise required to be applied to, the satisfaction of any related First Lien
Mortgage Loan.
London Business Day: Any day on which dealings in deposits of United
States dollars are transacted in the London interbank market.
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-1A, Class
LT-A-1B, Class LT-A-1C, Class LT-A-2, Class LT-A-3, 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-IO, Class LT-FL, Class LT-FX and Class LT-Accrual Interests as described in
the Preliminary Statement.
Lower-Tier REMIC: As described in the Preliminary Statement.
LT-Accretion Directed Class: As defined in the Preliminary
Statement.
Majority Class X Certificateholder: The Holder or Holders of a
majority of the Percentage Interests in the Class X Certificates.
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 successor in
interest. If Xxxxx'x is designated as a Rating Agency in the Preliminary
Statement, for purposes of Section 10.05(b) the address for notices to Moody's
shall be 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 Servicer and the Trustee.
Mortgage: The mortgage, deed of trust or other instrument identified
on the Mortgage Loan Schedule as securing a Mortgage Note.
Mortgage File: The items pertaining to a particular Mortgage Loan
contained in either the Servicing File or Custodial File.
Mortgage Interest Rate: The annual rate of interest borne on a
Mortgage Note with respect to each Mortgage Loan.
Mortgage Loan: An individual Mortgage Loan which is the subject of
this Agreement, each Mortgage Loan originally sold and subject to this Agreement
being identified on the Mortgage Loan Schedule, which Mortgage Loan includes,
without limitation, the Mortgage File, the Custodial File, the Servicing File,
the Scheduled Payments, Principal Prepayments, Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds, REO Disposition proceeds, Prepayment
Premiums and all other rights, benefits, proceeds and obligations arising from
or in connection with such Mortgage Loan, excluding replaced or repurchased
Mortgage Loans.
Mortgage Loan Documents: The mortgage loan documents pertaining to
each Mortgage Loan.
Mortgage Loan Schedule: A schedule of Mortgage Loans annexed hereto
as Schedule I, such schedule setting forth the following information with
respect to each Mortgage Loan as of the Cut-off Date: (1) the Original Loan
Seller's Mortgage Loan identifying number; (2) the city, state and zip code of
the Mortgaged Property; (3) a code indicating whether the Mortgaged Property is
owner-occupied, a second home or investment property; (4) 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); (5) 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; (6)
the Combined Loan-to-Value Ratio, at origination; (7) the Mortgage Interest Rate
as of the Cut-off Date; (8) 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; (9) the stated maturity date; (10) the
amount of the Scheduled Payment as of the Cut-off Date; (11) the last payment
date on which a Scheduled Payment was actually applied to pay interest and the
outstanding principal balance; (12) the original principal amount of the
Mortgage Loan; (13) 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; (14) the type of Mortgage Loan
(i.e., fixed rate, second lien); (15) a code indicating the purpose of the loan
(i.e., purchase, rate and term refinance, equity take-out refinance); (16) a
code indicating the documentation style (i.e., full, limited or stated income);
(17) the loan credit classification (as described in the Underwriting
Guidelines); (18) whether such Mortgage Loan provides for a Prepayment Premium;
(19) the Prepayment Premium period of such Mortgage Loan, if applicable; (20) a
description of the Prepayment Premium, if applicable; (21) the Mortgage Interest
Rate as of origination; (22) the credit risk score (FICO score) at origination;
(23) the date of origination; (24) a code indicating whether the Mortgage Loan
has been modified; (25) the Due Date for the first Scheduled Payment; (26) the
original Scheduled Payment due; (27) with respect to the related Mortgagor, the
debt-to-income ratio; (28) the Appraised Value of the Mortgaged Property; (29)
the sales price of the Mortgaged Property if the Mortgage Loan was originated in
connection with the purchase of the Mortgaged Property; (30) a code indicating
whether such Mortgage Loan is a Home Loan; (31) a code indicating whether a
Mortgage Loan is or has been 30 days delinquent; (32) the outstanding principal
balance of the related First Lien Mortgage Loan; (33) a code indicating if a
Mortgage Loan is or has had a 30 Day Delinquency; and (34) whether the Mortgage
Loan is an American Home Mortgage Loan, Fremont Mortgage Loan, Quicken Mortgage
Loan or Conduit 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.
Mortgaged Property: The real property (or leasehold estate, if
applicable) identified on the Mortgage Loan Schedule as securing repayment of
the debt evidenced by a Mortgage Note.
Mortgagor: The obligor(s) on a Mortgage Note.
Net Monthly Excess Cash Flow: For any Distribution Date the amount
remaining for distribution pursuant to subsection 4.02(a)(iii) (before giving
effect to distributions pursuant to such subsection).
Net Prepayment Interest Shortfall: For any Distribution Date, the
amount by which the sum of the Prepayment Interest Shortfalls exceeds the sum of
the Compensating Interest payments made with respect to such Distribution Date.
Net Swap Payment: With respect to any Distribution Date, any net
payment (other than a Swap Termination Payment) made by the Trust to the Swap
Provider on the related Fixed Rate Payer Payment Date (as defined in the
Interest Rate Swap Agreement).
Net Swap Receipt: With respect to any Distribution Date, any net
payment (other than a Swap Termination Payment) made by the Swap Provider to the
Trust on the related Floating Rate Payer Payment Date (as defined in the
Interest Rate Swap Agreement), or any amount withdrawn from the reserve account
referred to in the first full paragraph of Section 4.06 that is required under
that paragraph to be treated as a Net Swap Receipt for purposes of determining
the distributions from the Supplemental Interest Trust.
90+ Day Delinquent Mortgage Loan: Each Mortgage Loan with respect to
which any portion of a Scheduled Payment is, as of the last day of the prior Due
Period, three months or more past due (without giving effect to any grace
period), each Mortgage Loan in foreclosure, all REO Property and each Mortgage
Loan for which the Mortgagor has filed for bankruptcy.
Non-Delay Certificates: As specified in the Preliminary Statement.
Non-Permitted Transferee: A Person other than a Permitted
Transferee.
Non-Rule 144A Investment Letter: As defined in Section 5.02(b).
Nonrecoverable P&I Advance: Any P&I Advance previously made or
proposed to be made in respect of a Mortgage Loan or REO Property that, in the
good faith business judgment of the Servicer, will not or, in the case of a
proposed P&I Advance, would not be ultimately recoverable from related Late
Collections on such Mortgage Loan or REO Property as provided herein.
Nonrecoverable Servicing Advance: Any Servicing Advances previously
made or proposed to be made in respect of a Mortgage Loan or REO Property,
which, in the good faith business judgment of the Servicer, will not or, in the
case of a proposed Servicing Advance, would not, be ultimately recoverable from
related Late Collections.
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.
Ocwen: Ocwen Loan Servicing, LLC, a Delaware limited liability
company, and its successors in interest.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate signed by an officer of the
Servicer with responsibility for the servicing of the Mortgage Loans required to
be serviced by the Servicer and listed on a list delivered to the Trustee
pursuant to this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be
in-house counsel for the Servicer or a Subservicer, reasonably acceptable to the
Trustee; provided, that any Opinion of Counsel relating to (a) qualification of
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 the Servicer of the Mortgage Loans, (ii) does
not have any material direct or indirect financial interest in the Servicer or
in an affiliate of the Servicer and (iii) is not connected with the Servicer of
the Mortgage Loans as an officer, employee, director or person performing
similar functions.
Optional Termination Date: The date determined as follows:
(i) the Servicer (at the direction of the Majority Class X
Certificateholder (as evidenced on the Certificate Register)), pursuant to
Section 9.01, shall cause the Optional Termination Date to occur on any
Distribution Date on which the aggregate Stated Principal Balance of the
Mortgage Loans, as of the last day of the related Due Period, is equal to 10% or
less of the Cut-off Date Pool Principal Balance (provided, that if the Depositor
or an Affiliate of the Depositor is one of the Holders constituting such
majority, then there must be at least one other unaffiliated Holder constituting
such majority and the Class X Certificates held by such Holder, or unaffiliated
Holders in the aggregate, must represent at least a 10% Percentage Interest in
the Class X Certificates); and
(ii) the Servicer, pursuant to Section 9.01, individually, may, at
its option, cause the Optional Termination Date to occur on any Distribution
Date on which the aggregate Stated Principal Balance of the Mortgage Loans, as
of the last day of the related Due Period, is equal to 5% or less of the Cut-off
Date Pool Principal Balance.
Original Loan Sellers: With respect to each American Home Mortgage
Loans, American Home, with respect to each Fremont Mortgage Loan, Fremont, with
respect to each Quicken Mortgage Loan, Quicken, and with respect to each Conduit
Mortgage Loan, the Person who sold such Conduit Mortgage Loan to the Sponsor.
Original Sale Date: With regard to each American Home Mortgage Loan,
June 29, 2006, with regard to each Fremont Mortgage Loan, April 27, 2006, with
regard to each Quicken Mortgage Loan, September 1, 2006, and with regard to each
Conduit Mortgage Loan, the date on which GSMC acquired such Mortgage Loan from
the applicable Original Loan Seller.
OTS: Office of Thrift Supervision, and any successor thereto.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(i) Certificates theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation; and
(ii) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Trustee pursuant to this
Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with
a Stated Principal Balance greater than zero which was not the subject of a
Principal Prepayment in Full prior to such Due Date and which did not become a
Liquidated Mortgage Loan prior to such Due Date.
Overcollateralized Amount: As of any Distribution Date, the excess,
if any, of (a) the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date over (b) the aggregate of the Class Certificate Balances
of the Offered Certificates as of such Distribution Date (after giving effect to
the payment of the Principal Remittance Amount on such Certificates on such
Distribution Date).
Overcollateralization Deficiency: With respect to any Distribution
Date, the excess, if any, of (a) the Specified Overcollateralized Amount
applicable to such Distribution Date over (b) the Overcollateralized Amount
applicable to such Distribution Date.
Overcollateralization Floor: With respect to any Distribution Date,
0.50% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date. Notwithstanding the foregoing, on and after any Distribution Date
following the reduction of the aggregate Class Certificate Balance of the Class
A Certificates and Class M Certificates to zero, the Overcollateralization Floor
shall be zero.
Overcollateralization Reduction Amount: With respect to any
Distribution Date, an amount equal to the lesser of (a) the Excess
Overcollateralized Amount and (b) the Net Monthly Excess Cash Flow.
Ownership Interest: As to any Residual Certificate, any ownership
interest in such Certificate including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial.
P&I Advance: As to any Mortgage Loan or REO Property, any advance
made by the Servicer in respect of any Determination 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 Determination Date, plus certain amounts representing
assumed payments not covered by any current net income on the Mortgaged
Properties acquired by foreclosure or deed in lieu of foreclosure as determined
pursuant to Section 4.01.
Pass-Through Margin: With respect to each Class of Certificates, the
following percentages: Class A-1A, 0.070%; Class A-1B, 0.150%; Class A-1C,
0.100%; Class A-3, 0.230%; Class M-1, 0.400%; Class M-2, 0.430%; Class M-3,
0.600% and Class M-4, 0.720%. On the first Distribution Date after the Optional
Termination Date, the Pass-Through Margins shall increase to: Class A-1A,
0.140%; Class A-1B, 0.300%; Class A-1C, 0.200%; Class A-3, 0.460%; Class M-1,
0.600%; Class M-2, 0.645%; Class M-3, 0.900% and Class M-4, 1.080%.
Pass-Through Rate: For each Class of Certificates, each Class of
Upper-Tier Regular Interest and each Class of Lower-Tier Regular Interest, the
per annum rate set forth or calculated in the manner described in the
Preliminary Statement.
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
such percentage interest being set forth on the face thereof or equal to the
percentage obtained by dividing the Denomination of such Certificate by the
aggregate of the Denominations of all Certificates of the same Class.
Permitted Investments: Any one or more of the following obligations
or securities acquired at a purchase price of not greater than par, regardless
of whether issued by the Servicer, the Trustee or any of their respective
Affiliates:
(i) direct obligations of, or obligations fully guaranteed as
to timely payment of principal and interest by, the United States or
any agency or instrumentality thereof, provided such obligations are
backed by the full faith and credit of the United States;
(ii) demand and time deposits in, certificates of deposit of,
or bankers' acceptances (which shall each have an original maturity
of not more than 90 days and, in the case of bankers' acceptances,
shall in no event have an original maturity of more than 365 days or
a remaining maturity of more than 30 days) denominated in United
States dollars and issued by any Depository Institution and rated
P-1 by Moody's, F-1 by Fitch and A-1+ by Standard & Poor's (in each
case, to the extent they are designated as Rating Agencies in the
Preliminary Statement);
(iii) repurchase obligations with respect to any security
described in clause (i) above entered into with a Depository
Institution (acting as principal);
(iv) securities bearing interest or sold at a discount that
are issued by any corporation incorporated under the laws of the
United States of America or any state thereof and that are rated by
each Rating Agency that rates such securities in its highest
long-term unsecured rating categories at the time of such investment
or contractual commitment providing for such investment;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on
demand or on a specified date not more than 30 days after the date
of acquisition thereof) that is rated by each Rating Agency that
rates such securities in its highest short-term unsecured debt
rating available at the time of such investment;
(vi) units of money market funds, including money market funds
advised by the Depositor or the Trustee or an Affiliate thereof,
that have been rated "Aaa" by Moody's, "AAAm" or "AAAm-G" by
Standard & Poor's and at least "AA" by Fitch (in each case, to the
extent they are designated as Rating Agencies in the Preliminary
Statement); and
(vii) if previously confirmed in writing to the Trustee, any
other demand, money market or time deposit, or any other obligation,
security or investment, as may be acceptable to the Rating Agencies
as a permitted investment of funds backing "Aaa" or "AAA" rated
securities;
provided, however, that no instrument described hereunder shall evidence either
the right to receive (a) only interest with respect to the obligations
underlying such instrument or (b) both principal and interest payments derived
from obligations underlying such instrument and the interest and principal
payments with respect to such instrument provide a yield to maturity at par
greater than 120% of the yield to maturity at par of the underlying obligations.
For investments in the Distribution Account (except during the Trustee Float
Period), only the obligations or securities (or instruments which invest in the
obligations or securities) specified in clause (i) above shall constitute
Permitted Investments.
Permitted Transferee: Any Person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, international organization or
any agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income) on any
excess inclusions (as defined in Section 860E(c)(1) of the Code) with respect to
any Residual Certificate, (iv) rural electric and telephone cooperatives
described in Section 1381(a)(2)(C) of the Code, (v) a Person that is a
Disqualified Non-U.S. Person or a U.S. Person with respect to whom income from a
Residual Certificate is attributable to a foreign permanent establishment or
fixed base (within the meaning of an applicable income tax treaty) of such
Person or any other U.S. Person, (vi) an "electing large partnership" within the
meaning of Section 775 of the Code and (vii) any other Person so designated by
the Depositor based upon an Opinion of Counsel that the Transfer of an Ownership
Interest in a Residual Certificate to such Person may cause any Trust REMIC to
fail to qualify as a REMIC at any time that the Certificates are outstanding.
The terms "United States," "State" and "international organization" shall have
the meanings set forth in Section 7701 of the Code or successor provisions. A
corporation will not be treated as an instrumentality of the United States or of
any State or political subdivision thereof for these purposes if all of its
activities are subject to tax and, with the exception of Xxxxxxx Mac, a majority
of its board of directors is not selected by such government unit.
Person: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government, or any agency or political
subdivision thereof.
Physical Certificates: As specified in the Preliminary Statement.
Pool Stated Principal Balance: As to any Distribution Date, the
aggregate of the Stated Principal Balances of the Mortgage Loans for such
Distribution Date that were Outstanding Mortgage Loans on the Due Date in the
related Due Period.
Pooling-Tier REMIC-1: As described in the Preliminary Statement.
Pooling-Tier REMIC-1 Interest Rate: As described in the Preliminary
Statement.
Pooling-Tier REMIC-1 Principal Amount: As described in the
Preliminary Statement.
Pooling-Tier REMIC-1 Regular Interest: As described in the
Preliminary Statement.
Pooling-Tier REMIC-1 WAC Rate: As of any Distribution Date, a per
annum rate equal to (a) the weighted average of the Mortgage Interest Rates for
each Mortgage Loan (in each case, less than the applicable Expense Fee Rate)
then in effect on the beginning of the related Due Period on such Mortgage
Loans, multiplied by (b) 30 divided by the actual number of days in the related
Interest Accrual Period.
Pooling-Tier REMIC-2: As described in the Preliminary Statement.
Pooling-Tier REMIC-2 Interest Rate: As described in the Preliminary
Statement.
Pooling-Tier REMIC-2 IO Interest: Any of the Pooling-Tier REMIC-2
Regular Interests with the designation "IO" in its name.
Pooling-Tier REMIC-2 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 Excess: With respect to any Remittance Date, the
sum of, for each Mortgage Loan that was, during the portion of the Prepayment
Period occurring in the same month as such Remittance Date, the subject of a
Principal Prepayment that was applied by the Servicer to reduce the outstanding
principal balance of such Mortgage Loan, 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 first day of the calendar month in
which such Remittance Date occurs and ending on the date on which such Principal
Prepayment is so applied.
Prepayment Interest Shortfall: With respect to any Remittance Date,
the sum of, for each Mortgage Loan that was, during the portion of the related
Prepayment Period occurring in the calendar month preceding such Remittance
Date, the subject of a Principal Prepayment, 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 and
Principal Prepayments in Full, the period beginning on the 16th day of the month
preceding the month in which such Distribution Date occurs (or, in the case of
the first Distribution Date, from and including the Cut-off Date) to and
including the 15th day of the month in which such Distribution Date occurs. With
respect to any Distribution Date and each partial Principal Prepayment, the
calendar month prior to the month of such Distribution Date.
Prepayment Premium: Any prepayment premium or charge collected by
the Servicer with respect to a Mortgage Loan from a Mortgagor in connection with
any voluntary Principal Prepayment pursuant to the terms of the related Mortgage
Note.
Principal Distribution Amount: For any Distribution Date, the sum of
(i) the Basic Principal Distribution Amount for such Distribution Date and (ii)
the Extra Principal Distribution Amount for such Distribution Date.
Principal Prepayment: Any full or partial payment or other recovery
of principal on a Mortgage Loan which is received in advance of its scheduled
Due Date, excluding any Prepayment Premium and which is not accompanied by an
amount of interest representing scheduled interest due on any date or dates in
any month or months subsequent to the month of prepayment. For purposes of this
Agreement, a Liquidation Event shall not be treated as a Principal Prepayment.
Principal Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
Principal Remittance Amount: With respect to any Distribution Date,
the amount equal to the sum of the following amounts (without duplication) with
respect to the related Due Period: (i) each scheduled payment of principal on a
Mortgage Loan due during such Due Period and received by the Servicer on or
prior to the related Determination Date or advanced by the Servicer for the
related Remittance Date (ii) all Principal Prepayments received during the
related Prepayment Period, (iii) all net Liquidation Proceeds, Condemnation
Proceeds and Insurance Proceeds on the Mortgage Loans allocable to principal
actually collected by the Servicer during the related Prepayment Period, (iv)
the portion of the Repurchase Price allocable to principal with respect to each
Deleted Mortgage Loan, the repurchase obligation for which arose during the
related Prepayment Period, that was repurchased during the period from the prior
Determination Date through the Determination Date for the current Distribution
Date, (v) the portion of all Substitution Adjustment Amounts allocable to
principal with respect to the substitutions of Mortgage Loans that occur during
the calendar month in which such Distribution Date occurs, 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 October 18,
2006, relating to the Offered Certificates.
PTCE 95-60: As defined in Section 5.02(b).
Purchase Agreements: The American Home Purchase Agreement, the
Fremont Purchase Agreement, the Quicken Purchase Agreement or, with respect to
any Conduit Mortgage Loans, the purchase agreement by and between the related
Original Loan Seller and the Sponsor, as applicable.
Quicken: Quicken Loans, Inc., a Michigan corporation, and its
successors in interest.
Quicken Agreement: The Representations and Warranties Agreement,
dated as of October 20, 2006, among the Sponsor, the Depositor and Quicken, a
copy of which is attached hereto as Exhibit Q-3.
Quicken Mortgage Loan: Each Mortgage Loan purchased by the Sponsor
pursuant to the Quicken Purchase Agreement and identified as an "Quicken
Mortgage Loan" on the Mortgage Loan Schedule.
Quicken Purchase Agreement: The Amended and Restated Seller's
Purchase, Warranties and Interim Servicing Agreement, dated as of June 1, 2006,
by and between the Sponsor and Quicken Loans Inc.
Rating Agency: Each of the Rating Agencies specified in the
Preliminary Statement. If such organization or a successor is no longer in
existence, "Rating Agency" shall be such nationally recognized statistical
rating organization, or other comparable Person, as is designated by the
Depositor, notice of which designation shall be given to the Trustee. References
herein to a given rating or rating category of a Rating Agency shall mean such
rating category without giving effect to any modifiers. For purposes of Section
10.05(b), the addresses for notices to each Rating Agency shall be the address
specified therefor in the definition corresponding to the name of such Rating
Agency, or such other address as either such Rating Agency may hereafter furnish
to the Depositor, the Trustee and the Servicer.
Realized Losses: With respect to any date of determination and any
Liquidated Mortgage Loan, the amount, if any, by which (a) the unpaid principal
balance of such Liquidated Mortgage Loan together with accrued and unpaid
interest thereon exceeds (b) the Liquidation Proceeds with respect thereto net
of the expenses incurred by the Servicer in connection with the liquidation of
such Liquidated Mortgage Loan and net of the amount of unreimbursed Servicing
Advances with respect to such Liquidated Mortgage Loan. Any Charged Off Loan
will give rise to a Realized Loss (calculated as if clause (b) of the previous
sentence is equal to zero) at the time it is charged off, as described in
Section 3.15(c) hereof.
Record Date: With respect to any Distribution Date, the close of
business on the last day of the related Interest Accrual Period; provided,
however, that for any Certificate issued in definitive form, the Record Date
shall be the close of business on the last Business Day of the month preceding
the month in which such applicable Distribution Date occurs.
Reference Bank: As defined in Section 4.04.
Regular Certificates: As specified in the Preliminary Statement.
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.
Released Loan: Any Charged Off Loan that is discharged from the
Trust and released by Ocwen to the Class X-1 Certificateholder pursuant to
Section 3.15(b). Any Released Loan will no longer be an asset of any REMIC or
the Trust Fund.
Relief Act Interest Shortfall: With respect to any Distribution Date
and any Mortgage Loan, any reduction in the amount of interest or principal
collectible on such Mortgage Loan for the most recently ended Due Period as a
result of the application of the Servicemembers Civil Relief Act, or any similar
state statutes.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time as well as provisions of applicable state laws.
Remittance Date: With respect to any Distribution Date, no later
than 1:00 PM, Central Time on the Business Day immediately preceding such
Distribution Date.
REO Disposition: The final sale by the Servicer of any REO Property.
REO Imputed Interest: As to any REO Property, for any period, an
amount equivalent to interest (at the Mortgage Interest Rate net of the
Servicing Fee Rate that would have been applicable to the related Mortgage Loan
had it been outstanding) on the unpaid principal balance of the Mortgage Loan as
of the date of acquisition thereof (as such balance is reduced pursuant to
Section 3.15 by any income from the REO Property treated as a recovery of
principal).
REO Property: A Mortgaged Property acquired by the Trust Fund
through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Mortgage Loan.
Reportable Event: As defined in Section 8.12(a)(ii).
Reporting Date: The 18th day of each calendar month or the
immediately following Business Day if the 18th is not a Business Day.
Representations and Warranties Agreement: The Representations and
Warranties Agreement, dated as of October 20, 2006, by and between the Depositor
and the Sponsor, a copy of which is attached hereto as Exhibit V.
Repurchase Price: With respect to any Mortgage Loan 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 Trustee to
the date of repurchase, (iii) all unreimbursed Servicing Advances, (iv) (a) 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 (v) all
expenses incurred by the Servicer, the Trust or the Trustee, as the case may be,
in respect of a breach or defect, including, without limitation, expenses
arising out of the Trustee's or Servicer's enforcement of the Sponsor's
repurchase obligations, to the extent not included in clause (iii).
With respect to any Mortgage Loan repurchased by American Home and
Fremont, the Repurchase Price as that term is defined in the related Purchase
Agreement.
Request for Release: The Request for Release submitted by the
Servicer to the Trustee, substantially in the form of Exhibit J.
Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee, any vice
president, any assistant vice president, any assistant secretary, any assistant
treasurer, any associate or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers who at such time shall be officers to whom, with respect to a
particular matter, such matter is referred because of such officer's knowledge
of and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Agreement.
Rule 144A Letter: As defined in Section 5.02(b).
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan
due on any Due Date allocable to principal and/or interest on such Mortgage Loan
which, unless otherwise specified herein, shall give effect to any related Debt
Service Reduction and any Deficient Valuation that affects the amount of the
monthly payment due on such Mortgage Loan.
Second Lien Mortgage Loan: A Mortgage Loan secured by a second lien
Mortgage on the related Mortgaged Property.
Securities Act: The Securities Act of 1933, as amended.
Senior Enhancement Percentage: With respect to any Distribution
Date, the percentage obtained by dividing (x) the sum of (i) the aggregate Class
Certificate Balance of the Subordinated Certificates and (ii) the
Overcollateralized Amount (in each case after taking into account the
distributions of the Principal Distribution Amount for such Distribution Date)
by (y) the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date.
Senior Specified Enhancement Percentage: As of any date of
determination, 56.50%.
Servicer: Ocwen.
Servicer Cumulative Loss Trigger: With respect to any Distribution
Date, a Servicer Cumulative Loss Trigger exists if the Cumulative Loss
Percentage exceeds the applicable percentages set forth below with respect to
such Distribution Date:
Distribution Date
Occurring In Loss Percentage
---------------------------- ----------------------------------------------
November 2008 - October 2009 3.20% for the first month, plus an additional
1/12th of 2.75% for each month thereafter
November 2009 - October 2010 5.95% for the first month, plus an additional
1/12th of 2.55% for each month thereafter
November 2010 - October 2011 8.50% for the first month, plus an additional
1/12th of 0.25% for each month thereafter
November 2011 - October 2012 8.75% for the first month, plus an additional
1/12th of 0.50% for each month thereafter
November 2012 and thereafter 9.25%
Servicer Delinquency Trigger: With respect to any Distribution Date,
a Servicer Delinquency Trigger 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 18.15% of the Senior Enhancement
Percentage as of the last day of the prior Due Period.
Servicer Remittance Report: As defined in Section 4.03(d).
Servicing Advances: The reasonable "out-of-pocket" costs and
expenses (including legal fees) incurred prior to, on, or after the Cut-off Date
by the Servicer in the performance of its servicing obligations in connection
with a default, delinquency or other unanticipated event, including, but not
limited to, the cost of (i) the preservation, restoration, inspection and
protection of a Mortgaged Property, (ii) any enforcement, administrative 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, 3.13 and 3.15 (including the
cost of obtaining any broker's price opinion pursuant thereto). Servicing
Advances also include any reasonable "out-of-pocket" costs and expenses
(including legal fees) incurred by the Servicer in connection with executing and
recording instruments of satisfaction, deeds of reconveyance or Assignments of
Mortgage in connection with any satisfaction or foreclosures in respect of any
Mortgage Loan to the extent not recovered from the Mortgagor or otherwise
payable under this Agreement and obtaining or correcting any legal documentation
required to be included in the Mortgage Files and necessary for the Servicer to
perform its obligations under this Agreement, including correcting any
outstanding title issues (i.e., any lien or encumbrance on the Mortgaged
Property that prevents the effective enforcement of the intended lien position).
The Servicer shall not be required to make any Nonrecoverable Servicing
Advances.
Servicing Fee: With respect to each Mortgage Loan and any
Distribution Date, an amount equal to the product of (i) one-twelfth of the
Servicing Fee Rate and (ii) the applicable Stated Principal Balance of such
Mortgage Loan as of the first day of the Due Period preceding the applicable
Distribution Date. Such fee shall be payable monthly, and shall be pro rated for
any portion of a month during which the Mortgage Loan is serviced by the
Servicer under this Agreement. The Servicing Fee is payable solely from the
interest portion (including recoveries with respect to interest from Liquidation
Proceeds, Insurance Proceeds, Condemnation Proceeds and proceeds received with
respect to REO Properties, to the extent permitted by Section 3.11) of such
Scheduled Payment collected by the Servicer or as otherwise provided under
Section 3.11.
Servicing Fee Rate: With respect to each Mortgage Loan, 0.50% per
annum.
Servicing File: With respect to each Mortgage Loan, the file
retained by the Servicer consisting of originals or copies of all documents in
the Mortgage File which are not delivered to the Trustee in the Custodial File
and copies of the Mortgage Loan Documents set forth in Exhibit K hereto.
Servicing Officer: Any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and facsimile signature appear on a list of servicing officers furnished to
the Trustee by the Servicer on the Closing Date pursuant to this Agreement, as
such list may from time to time be amended.
Servicing Transfer Costs: All reasonable out-of-pocket costs and
expenses incurred by the Trustee in connection with the transfer of servicing
from a terminated Servicer, including, without limitation, any such costs or
expenses associated with the complete transfer of all servicing data and the
completion, correction or manipulation of such servicing data as may be required
by the Trustee to correct any errors or insufficiencies in the servicing data or
otherwise to enable the Trustee (or any successor Servicer appointed pursuant to
Section 7.02) to service the Mortgage Loans properly and effectively.
Similar Law: As defined in Section 5.02(b).
60+ Day Delinquent Mortgage Loan: With respect to any date of
determination, 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 Properties and each Mortgage Loan for which the Mortgagor
has filed for bankruptcy after the Closing Date.
Specified Overcollateralized Amount: Prior to the Stepdown Date, an
amount equal to 5.10% of the Cut-off Date Pool Principal Balance. On and after
the Stepdown Date, an amount equal to 10.20% of the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date, subject, until the
Class Certificate Balance of each Class of Offered Certificates has been reduced
to zero, to a minimum amount equal to the Overcollateralization Floor; provided,
however, that if, on any Distribution Date, a Trigger Event has occurred, the
Specified Overcollateralized Amount shall not be reduced to the applicable
percentage of the then current aggregate Stated Principal Balance of the
Mortgage Loans until the Distribution Date on which a Trigger Event is no longer
occurring.
Sponsor: Xxxxxxx Xxxxx Mortgage Company, a New York limited
partnership, and its successors in interest, as purchaser of the Mortgage Loans
under the Purchase Agreements.
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 10.05(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-S6, or such other
address as Standard & Poor's may hereafter furnish to the Depositor, the
Servicer and the Trustee.
Standard & Poor's Glossary: The Standard & Poor's LEVELS(R)
Glossary, in effect as of the Closing Date.
Start-up Day: The Closing Date.
Stated Principal Balance: As to each Mortgage Loan and as of any
date of determination, (i) the principal balance of the Mortgage Loan at the
Cut-off Date after giving effect to payments of principal due on or before such
date, minus (ii) all amounts previously remitted to the Trustee with respect to
the related Mortgage Loan representing payments or recoveries of principal
including advances in respect of Scheduled Payments of principal. For purposes
of any Distribution Date, the Stated Principal Balance of any Mortgage Loan will
give effect to any Scheduled Payments of principal received by the Servicer on
or prior to the related Determination Date or advanced by the Servicer for the
related Remittance Date and any unscheduled principal payments and other
unscheduled principal collections received during the related Prepayment Period,
and the Stated Principal Balance of any Mortgage Loan that has prepaid in full
or has become a Liquidated Mortgage Loan during the related Prepayment Period
shall be zero.
Stepdown Date: The earlier to occur of (a) the date on which the
aggregate Class Certificate Balances of the Class A Certificates have been
reduced to zero, and (b) the later to occur of (i) the Distribution Date in
November 2009, and (ii) the first Distribution Date on which the Senior
Enhancement Percentage is greater than or equal to the Senior Specified
Enhancement Percentage.
Subordinated Certificates: As specified in the Preliminary
Statement.
Subsequent Recoveries: Amounts received with respect to any
Liquidated Mortgage Loan after it has become a Liquidated Mortgage Loan and, in
the case of a Charged Off Loan, prior to such Liquidated Mortgage Loan becoming
a Released Loan.
Subservicer: As defined in Section 3.02(a).
Subservicing Account: As defined in Section 3.08.
Subservicing Agreements: As defined in Section 3.02(a).
Substitute Mortgage Loan: A Mortgage Loan substituted by American
Home, Fremont, Quicken or the Sponsor for a Deleted Mortgage Loan which must, on
the date of such substitution, as confirmed in a Request for Release,
substantially in the form of Exhibit J, (i) have a Stated Principal Balance,
after deduction of the principal portion of the Scheduled Payment due in the
month of substitution, not in excess of, and not more than 10% less than, the
Stated Principal Balance of the Deleted Mortgage Loan; (ii) be accruing interest
at a rate no lower than and not more than 1% per annum higher than, that of the
Deleted Mortgage Loan; (iii) have a CLTV no higher than that of the Deleted
Mortgage Loan; (iv) have a remaining term to maturity no greater than (and not
more than one year less than that of) the Deleted Mortgage Loan; and (v) comply
with each related representation and warranty set forth in Section 2.03.
Substitution Adjustment Amount: The meaning ascribed to such term
pursuant to Section 2.03(e).
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 Yield Maintenance Agreement, the Class UT-IO Interest and the
right to receive Class IO Shortfalls, subject to the obligation to pay amounts
specified in Section 4.06.
Supplemental Interest Trust Account: The account of that name
created pursuant to Section 4.06 of this Agreement.
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, LP
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 Class R Certificates
designated as "tax matters person" of each related Trust REMIC, in the manner
provided under Treasury Regulations Section 1.860F-4(d) and Treasury Regulations
Section 301.6231(a)(7)-1.
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 hereof.
30 Day Delinquency: The failure of the Mortgagor to make any
Scheduled Payment due under the Mortgage Note on or prior to the date which is
30 days after such payment's Due Date.
Total Monthly Excess Spread: As to any Distribution Date, an amount
equal to the excess, if any, of (i) the interest collected on the Mortgage Loans
received by the Servicer on or prior to the related Determination Date or
advanced by the Servicer for the related Remittance Date (net of Expense Fees)
and plus Net Swap Receipts and Yield Maintenance Payments and less Net Swap
Payments and Swap Termination Payments (other than Defaulted Swap Termination
Payments), if any, for such Distribution Date over (ii) the sum of the amounts
payable to the Certificates pursuant to Section 4.02(a)(i); provided that Net
Swap Receipts and Yield Maintenance Payments shall be included in Total Monthly
Excess Spread (and correspondingly, in 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 (excluding Charged Off Loans), divided by (2) the
aggregate unpaid principal balance of the Mortgage Loans as of the last day of
the related Due Period, equals or exceeds 14.15% of the Senior Enhancement
Percentage as of the last day of the prior Due Period or (ii) the quotient
(expressed as a percentage) of (x) the aggregate amount of Realized Losses
incurred since the Cut-off Date through the last day of the related Prepayment
Period divided by (y) the Cut-off Date Pool Principal Balance, exceeds the
applicable percentages set forth below with respect to such Distribution Date:
Distribution Date
Occurring In Loss Percentage
---------------------------- ---------------------------------------------
November 2008 - October 2009 2.20% for the first month, plus an additional
1/12th of 2.75% for each month thereafter
November 2009 - October 2010 4.95% for the first month, plus an additional
1/12th of 2.55% for each month thereafter
November 2010 - October 2011 7.50% for the first month, plus an additional
1/12th of 1.25% for each month thereafter
November 2011 - October 2012 8.75% for the first month, plus an additional
1/12th of 0.50% for each month thereafter
November 2012 and thereafter 9.25%
Trust: The express trust created hereunder in Section 2.01(c).
Trust Fund: The corpus of the trust created hereunder consisting of
(i) the Mortgage Loans and all interest and principal received on or with
respect thereto after the related Cut-off Date, other than such amounts which
were due on the Mortgage Loans on or before the related Cut-off Date; (ii) the
Collection Account, the Excess Reserve Fund Account, the Distribution Account,
and all amounts deposited therein pursuant to the applicable provisions of this
Agreement; (iii) property that secured a Mortgage Loan and has been acquired by
foreclosure, deed-in-lieu of foreclosure or otherwise, (iv) the Yield
Maintenance Agreement, (v) the Depositor's rights under the American Home
Agreements, the Fremont Agreements, the Quicken Agreement and the
Representations and Warranties Agreement; (vi) the Interest Rate Swap Agreement;
and (vii) the Supplemental Interest Trust Account; and (viii) all proceeds of
the conversion, voluntary or involuntary, of any of the foregoing.
Trust REMIC: Any of the Pooling-Tier REMIC-1, Pooling-Tier REMIC-2,
the Lower-Tier REMIC or the Upper-Tier REMIC, as applicable.
Trustee: Deutsche Bank National Trust Company, and its successors in
interest and, if a successor trustee is appointed hereunder, such successor.
Trustee Fee: As to any Distribution Date, an amount equal to the
product of (a) one twelfth of the Trustee Fee Rate and (b) the applicable Stated
Principal Balance of such Mortgage Loan as of the first day of the Due Period
preceding the applicable Distribution Date.
Trustee Fee Rate: With respect to each Mortgage Loan, 0.0073% per
annum.
Trustee Float Period: With respect to any Distribution Date and the
related amounts in the Distribution Account, the period commencing on the
Business Day immediately preceding such Distribution Date and ending on such
Distribution Date.
Underwriters' Exemption: Any exemption listed in footnote 1 of, and
amended by, Prohibited Transaction Exemption 2002-41, 67 Fed. Reg. 54487 (2002),
or any successor exemption.
Underwriting Guidelines: The underwriting guidelines attached to the
applicable Purchase Agreement.
Unpaid Interest Amounts: As of any Distribution Date and any Class
of Certificates, the sum of (a) the portion of the Accrued Certificate Interest
Distribution Amount from prior Distribution Dates remaining unpaid immediately
prior to the current Distribution Date and (b) interest on such unpaid amount in
clause (a) at the applicable Pass-Through Rate or Fixed Rate, as applicable (to
the extent permitted by applicable law).
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.
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 (other than the Class R
Certificates and Class X-1 Certificates) in proportion to the Certificate
Balances of their respective Certificates on such date. The Class R Certificates
and Class X-1 Certificates shall have no Voting Rights.
WAC Cap: A per annum rate equal to the product of (i) with respect
to the LIBOR Certificates, 30 divided by the actual number of days in the
applicable Interest Accrual Period, and with respect to the Fixed Rate
Certificates, 1, and (ii)(A) the weighted average of the interest rates on the
Mortgage Loans (in each case, less the Expense Fee Rate) in effect at the
beginning of the related Due Period on the mortgage loans, and minus (B) solely
for the purposes of calculating the WAC Cap for the LIBOR Certificates, Net Swap
Payments, if any, for that Distribution Date, and Swap Termination Payments
(other than Defaulted Swap Termination Payments) owed to the Swap Provider, if
any, for that Distribution Date, divided by the Class Certificate Balance of the
LIBOR Certificates at the beginning of the related Due Period, multiplied by 12.
Yield Maintenance Agreement: The yield maintenance agreement dated
October 20, 2006, between the Sponsor and the Yield Maintenance Provider, in the
form attached hereto as Exhibit T.
Yield Maintenance Payments: An amount equal to the product of (a)
the number of basis points by which (i) one-month LIBOR (determined in
accordance with the terms of the Yield Maintenance Agreement) exceeds (ii)
5.50%, (b) a notional amount equal to the lesser of (A) the amount set forth as
the yield maintenance notional amount on the schedule attached to the Yield
Maintenance Agreement and (B) the aggregate Class Certificate Balance of the
LIBOR Certificates minus the amount set forth as the swap agreement notional
amount on the schedule attached to the Interest Rate Swap Agreement, and (c) the
actual number of days in the applicable Interest Accrual Period divided by 360.
Yield Maintenance Provider: Xxxxxxx Xxxxx Mitsui Marine Derivative
Products, L.P., a Delaware limited partnership, 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 such transfer and assignment of each Mortgage
Loan, the Depositor has delivered or caused to be delivered to the Trustee for
the benefit of the Certificateholders the following documents or instruments
with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note (except for up to 0.05% of the
Mortgage Notes for which there is a lost note affidavit and a copy of the
Mortgage Note) bearing all intervening endorsements, endorsed "Pay to the
order of _________, without recourse" and signed in the name of the last
endorsee. To the extent that there is no room on the face of the Mortgage
Notes for endorsements, the endorsement may be contained on an allonge
unless state law does not so allow and the Trustee has been advised by the
Original Loan Seller that state law does not so allow. If the Mortgage
Loan was acquired by the 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) with respect to any Mortgage Loan the original of any guarantee
executed in connection with the Mortgage Note;
(iii) with respect to the American Home Mortgage Loans, Fremont
Mortgage Loans, Quicken Mortgage Loans and Conduit Mortgage Loans, the
original Mortgage with evidence of recording thereon or a certified true
copy of such Mortgage submitted for recording. If in connection with any
Mortgage Loan, American Home with respect to the American Home Mortgage
Loans, Fremont with respect to the Fremont Mortgage Loans, Quicken with
respect to the Quicken Mortgage Loans, or the Sponsor with respect to the
Conduit Mortgage Loans, as applicable, 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, American Home with respect
to the American Home Mortgage Loans, Fremont with respect to the Fremont
Mortgage Loans, Quicken with respect to the Quicken Mortgage Loans, or the
Sponsor with respect to the Conduit Mortgage Loans, as applicable, shall
deliver or cause to be delivered to the Trustee a photocopy of such
Mortgage, together with (i) in the case of a delay caused by the public
recording office, an officer's certificate of American Home with respect
to the American Home Mortgage Loans, Fremont with respect to the Fremont
Mortgage Loans, Quicken with respect to the Quicken Mortgage Loans, or the
Sponsor with respect to the Conduit Mortgage Loans, as applicable (or
evidence of certification on the face of such photocopy of such Mortgage)
or in the case of American Home, Fremont, Quicken or the Sponsor,
certified by the title company, escrow agent, or closing attorney stating
that such Mortgage has been dispatched to the appropriate public recording
office for recordation and that the original recorded Mortgage or a copy
of such Mortgage certified by such public recording office to be a true
and complete copy of the original recorded Mortgage will be promptly
delivered to the Trustee upon receipt thereof by American Home with
respect to the American Home Mortgage Loans, Fremont with respect to the
Fremont Mortgage Loans, Quicken with respect to the Quicken Mortgage
Loans, or the Sponsor with respect to the Conduit Mortgage Loans, as
applicable; (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 shall deliver or cause to be delivered to the Trustee a photocopy
of such intervening assignment, together with (1) in the case of a delay
caused by the public recording office, an officer's certificate of the
applicable Original Loan Seller (or evidence of certification on the face
of such photocopy of such intervening Assignment of Mortgage) or certified
by the title company, escrow agent, or closing attorney stating that such
intervening Assignment of Mortgage has been dispatched to the appropriate
public recording office for recordation and that such original recorded
intervening Assignment of Mortgage or a copy of such intervening
Assignment of Mortgage certified by the appropriate public recording
office to be a true and complete copy of the original recorded intervening
Assignment of Mortgage will be promptly delivered to the Trustee upon
receipt thereof by the applicable Original Loan Seller; or (2) 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 a copy of) the mortgagee policy of title
insurance or, in the event such original title policy is unavailable, a
certified true copy of the related policy binder or commitment for title
certified to be true and complete by the title insurance company; and
(viii) a security agreement, chattel mortgage or equivalent document
executed in connection with the Mortgage (if provided).
The Depositor shall use reasonable efforts to assist the Trustee and
the Servicer in enforcing the obligations of the Sponsor under the
Representations and Warranties Agreement, the obligations of American Home and
the Sponsor under the American Home Agreements, the obligations of Fremont and
the Sponsor under the Fremont Agreements, the obligations of Quicken and the
Sponsor under the Quicken 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 the
Sponsor to deliver to the Trustee the applicable individual lost note affidavits
within ten (10) Business Days of the Closing Date. If the Sponsor fails to
deliver the required individual lost note affidavits within the specified period
of time, the Trustee shall notify American Home, Fremont, Quicken or the
Sponsor, as applicable, to take such remedial actions, including, without
limitation, the repurchase by American Home of any American Home Mortgage Loan,
within 45 days of the Closing Date, the repurchase by Fremont of any Fremont
Mortgage Loan, and Quicken of any Quicken Mortgage Loan, within 60 days of the
Closing Date, or the repurchase by the Sponsor of any Conduit Mortgage Loan
within 180 days of the Closing Date.
The Depositor shall use reasonable efforts to cause the Sponsor to
deliver to the Trustee 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 Servicer shall take all reasonable actions as are necessary at the expense
of the Depositor to cause the Trust to be shown as the owner of the related
Mortgage Loan on the records of MERS for the purpose of the system of recording
transfers of beneficial ownership of mortgages maintained by MERS.
The Depositor shall use reasonable efforts to cause the Sponsor to
forward to the Trustee additional documents evidencing an assumption,
modification, consolidation or extension of a Mortgage Loan approved by the
applicable Original Loan Seller in accordance with the terms of the applicable
Purchase Agreement. All such mortgage documents held by the Trustee as to each
Mortgage Loan shall constitute the "Custodial File."
On or prior to the Closing Date, the Depositor shall use reasonable
efforts to cause the Sponsor to deliver to the applicable Custodian Assignments
of Mortgages, in blank, for each applicable Mortgage Loan (except with respect
to each MERS Designated Mortgage Loan). The Depositor shall use reasonable
efforts to cause the Sponsor to cause the Assignments of Mortgage with completed
recording information to be provided to the Servicer in a reasonably acceptable
manner. No later than thirty (30) Business Days following the later of the
Closing Date and the date of receipt by the Servicer of the fully completed
Assignments of Mortgages in recordable form, the Depositor shall promptly submit
or cause to be submitted for recording, at the expense of the Sponsor, at no
expense to the Trust Fund, the Depositor or the Trustee in the appropriate
public office for real property records, each Assignment of Mortgage referred to
in Section 2.01(b)(v). Notwithstanding the foregoing, for administrative
convenience and facilitation of servicing and to reduce closing costs, the
Assignments of Mortgage shall not be required to be submitted for recording (i)
(except with respect to any Mortgage Loan located in Maryland) unless the
Trustee and the Depositor receive written notice that such failure to record
would result in a withdrawal or a downgrading by any Rating Agency of the rating
on any Class of Certificates or (ii) if such Mortgage Loan is a MERS Designated
Mortgage Loan; provided, however, each Assignment of Mortgage that is not a MERS
Designated Mortgage Loan shall be submitted for recording in the manner
described above, at no expense to the Trust Fund or Trustee, upon the earliest
to occur of: (i) reasonable direction by the Holders of Certificates entitled to
at least 25% of the Voting Rights, (ii) the occurrence of an Event of Default,
(iii) upon receipt of notice from the Servicer, the occurrence of a bankruptcy,
insolvency or foreclosure relating to the Mortgagor under the related Mortgage
and (iv) upon receipt of notice from the Servicer, any Mortgage Loan that is 90
days or more Delinquent. In the event of (i) through (iv) set forth in the
immediately preceding sentence, upon request of the Depositor, the Trustee shall
enforce the obligations of the Sponsor to deliver such Assignments of Mortgage
for recording as provided above, promptly and in any event within 30 days
following receipt of notice by the Sponsor. Notwithstanding the foregoing, if
the Sponsor fails to pay the cost of recording the Assignments of Mortgage, such
expense will be paid by the Trustee from the assets of the Trust. In the event
an Assignment of Mortgage is not recorded, neither the Trustee nor the Servicer
will have any liability for its failure to act on notices that were not received
and would have been received if such Assignment had been recorded. 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 "Deutsche Bank National Trust Company, as trustee under the Pooling and
Servicing Agreement dated as of October 1, 2006, GSAMP Trust 2006-S6." In the
event that any such assignment is lost or returned unrecorded because of a
defect therein, the Depositor shall use reasonable efforts to cause the Sponsor
to promptly prepare a substitute assignment to cure such defect and thereafter
cause each such assignment to be duly recorded at the expense of the Sponsor.
On or prior to the Closing Date, the Depositor shall deliver to the
Trustee and the Servicer a copy of the Data Tape Information in electronic,
machine readable medium in a form mutually acceptable to the Depositor, the
Servicer and the Trustee. Within ten (10) Business Days of the Closing Date, the
Depositor shall deliver a copy of the complete Mortgage Loan Schedule to the
Trustee and the Servicer, and the Trustee shall promptly, upon receipt of the
Mortgage Loan Schedule (or any other mortgage loan schedules received by the
Trustee from the Depositor), inform the Depositor of receipt thereof.
In the event that such original or copy of any document submitted
for recordation to the appropriate public recording office is not so delivered
to the Trustee within 90 days following the Closing Date, and in the event that
the Sponsor does not cause such failure to be cured within 60 days of discovery
of receipt of written notification of such failure from the Depositor, the
related Mortgage Loan shall, upon the request of the Depositor, be repurchased
by the Sponsor pursuant to the Representations and Warranties Agreement at the
price and in the manner specified in Section 2.03. The foregoing repurchase
obligation 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 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
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 Trustee prior to the Closing Date of a copy of such Mortgage or
assignment, as the case may be, certified (such certification to be an original
thereof) by the public recording office to be a true and complete copy of the
recorded original thereof.
(c) The Depositor does hereby establish, pursuant to the further
provisions of this Agreement and the laws of the State of New York, an express
trust (the "Trust") to be known, for convenience, as "GSAMP Trust 2006-S6" and
Deutsche Bank National Trust Company is hereby appointed as Trustee in
accordance with the provisions of this Agreement. The parties hereto acknowledge
and agree that it is the policy and intention of the Trust to acquire only
Mortgage Loans meeting the requirements set forth in this Agreement, including
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.
(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 American Home Assignment
Agreement, the Fremont Assignment Agreement, the Quicken Agreement, the
Representations and Warranties Agreement, the Yield Maintenance 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 and the Yield Maintenance Agreement by the Trustee on behalf
of the Trust were authorized and are hereby ratified and confirmed.
Section 2.02 Acceptance by the Trustee of the Mortgage Loans. The
Trustee, on behalf of the Trust, hereby accepts the Trust Fund and assumes (i)
the obligations of the Depositor under the Representations and Warranties
Agreement from and after the Closing Date solely insofar as they relate to the
Mortgage Loans, (ii) the obligations of the Depositor under the American Home
Agreements from and after the Closing Date solely insofar as they relate to the
American Home Mortgage Loans, (iii) the obligations of the Depositor under the
Fremont Agreements from and after the Closing Date solely insofar as they relate
to the Fremont Mortgage Loans, (iii) the obligations of the Depositor under the
Quicken Agreement from and after the Closing Date solely insofar as they relate
to the Quicken Funding 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 Trustee acknowledges receipt of the documents identified in the Initial
Certification in the form annexed hereto as Exhibit E, and the Trustee declares
that the Trustee holds and will hold such documents and the other documents
delivered to the Trustee pursuant to Section 2.01, and that the Trustee holds or
will hold such other assets as are included in the Trust Fund, in trust for the
exclusive use and benefit of all present and future Certificateholders. The
Trustee acknowledges that it will maintain possession of the related Mortgage
Notes in the State of California unless otherwise permitted by the Rating
Agencies.
Prior to and as a condition to the Closing, the Trustee shall
deliver via facsimile (with original to follow the next Business Day) to the
Depositor and the Servicer an Initial Certification prior to the Closing Date,
or as the Depositor agrees to, on the Closing Date, certifying receipt of a
Mortgage Note and Assignment of Mortgage for each Mortgage Loan with any
exceptions thereon. The Trustee shall not be responsible to verify the validity,
sufficiency or genuineness of any document in any Custodial File.
On the Closing Date, the Trustee shall ascertain that all documents
required to be reviewed by it are in its possession, and shall deliver to the
Depositor and the Servicer an Initial Certification, in the form annexed hereto
as Exhibit E, and shall deliver to the Depositor and the Servicer a Document
Certification and Exception Report, in the form annexed hereto as Exhibit F,
within 90 days after the Closing Date (or with respect to any Substitute
Mortgage Loan delivered to the Trustee within 30 days after the receipt of the
Mortgage File by the Trustee) 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) and (12) 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 Trustee shall not be responsible to verify the validity,
sufficiency or genuineness of any document in any Custodial File.
The Trustee shall retain possession and custody of each Custodial
File in accordance with and subject to the terms and conditions set forth
herein. The Servicer shall promptly deliver to the Trustee, upon the execution
or receipt thereof, the originals of such other documents or instruments
constituting the Custodial File as come into the possession of the Servicer from
time to time.
The Depositor shall use reasonable efforts to cause the Sponsor to
deliver to the Servicer copies of all trailing documents required to be included
in the Custodial File at the same time the original or certified copies thereof
are delivered to the Trustee, including but not limited to such documents as the
title insurance policy and any other Mortgage Loan Documents upon return from
the public recording office. The Depositor shall use reasonable efforts to cause
the Sponsor to deliver such documents, at the Sponsor's expense, to the Servicer
and in no event shall the Servicer be responsible for any expenses relating to
such delivery obligation.
Section 2.03 Representations, Warranties and Covenants of the
Servicer. (a) Ocwen hereby makes the representations and warranties set forth in
Schedule II hereto to the Depositor and the Trustee as of the Closing Date.
(b) It is understood and agreed by the Servicer and the Trustee that
the representations and warranties set forth in this Section 2.03 shall survive
the transfer of the Mortgage Loans by the Depositor to the Trustee, and shall
inure to the benefit of the Depositor, and the Trustee notwithstanding any
restrictive or qualified endorsement on any Mortgage Note or Assignment of
Mortgage or the examination or failure to examine any Mortgage File. Upon
discovery by any of the Depositor, the Trustee or the Servicer of a breach of
any of the foregoing representations and warranties, the party discovering such
breach shall give prompt written notice to the others.
Within 30 days of the earlier of either discovery by or notice to
the Sponsor and the Depositor that any Mortgage Loan does not conform to the
requirements as determined in the Trustee's review of the related Custodial
File, the Depositor and the Sponsor shall each use its best efforts to cause to
be remedied a material defect in a document constituting part of a Mortgage File
and, if such defect cannot be remedied within 60 days (in the case of a Fremont
Mortgage Loan or a Quicken Mortgage Loan), 45 days (in the case of an American
Home Mortgage Loan) or 180 days (in the case of a Conduit Mortgage Loan), (i)
(A) in the case of the Fremont Mortgage Loans, Quicken Mortgage Loans and
American Home Mortgage Loans if such 30 day period expires prior to 120 days
after the applicable Original Sale Date, pursuant to the related Purchase
Agreements or (B) in the case of the Conduit Mortgage Loans, if such 180 day
period expires prior to two years after the Closing Date, pursuant to the
pursuant to the Representations and Warranties Agreement, American Home,
Fremont, Quicken or the Sponsor, as applicable, may remove such Mortgage Loan (a
"Deleted Mortgage Loan") from the Trust Fund and substitute in its place a
Substitute Mortgage Loan, in the manner and subject to the conditions set forth
in this Section 2.03, or (ii) American Home, Fremont, Quicken or the Sponsor,
pursuant to the American Home Agreements, Fremont Agreements, Quicken Agreement
or Representations and Warranties Agreement may repurchase such Mortgage Loan at
the Repurchase Price; provided, however, that any such substitution pursuant to
clause (i) above shall not be effected prior to the delivery to the Trustee a
Request for Release substantially in the form of Exhibit J, and the Mortgage
File for any such Substitute Mortgage Loan.
(c) With respect to any Substitute Mortgage Loan or Loans, the
Depositor shall deliver or cause to be delivered to the Trustee for the benefit
of the Certificateholders the Mortgage Note, the Mortgage, the related
assignment of the Mortgage, and such other documents and agreements as are
required by Section 2.01, with the Mortgage Note endorsed and the Mortgage
assigned as required by Section 2.01. No substitution is permitted to be made in
any calendar month after the Determination Date for such month. Scheduled
Payments due with respect to Substitute Mortgage Loans in the Due Period of
substitution shall not be part of the Trust Fund and will be retained by the
applicable Original Loan Seller on the next succeeding Distribution Date. For
the Due Period of substitution, distributions to Certificateholders will include
the Scheduled Payment due on any Deleted Mortgage Loan for such Due Period and
thereafter the applicable Original Loan Seller shall be entitled to retain all
amounts received in respect of such Deleted Mortgage Loan.
(d) The Depositor shall, based on information provided by American
Home, Fremont, Quicken or the Sponsor, amend the Mortgage Loan Schedule for the
benefit of the Certificateholders to reflect the removal of such Deleted
Mortgage Loan and the substitution of the Substitute Mortgage Loan or Loans and
the Depositor shall deliver the amended Mortgage Loan Schedule to the Servicer
and the Trustee. The Depositor shall have no liability with respect to the
information provided by American Home, Fremont, Quicken or the Sponsor related
to any Substitute Mortgage Loan. Upon such substitution, the Substitute Mortgage
Loan or Loans shall be subject to the terms of this Agreement in all respects.
Upon any such substitution and the deposit to the Collection Account of the
amount required to be deposited therein in connection with such substitution as
described in the following paragraph, the Trustee shall release the Mortgage
File held for the benefit of the Certificateholders relating to such Deleted
Mortgage Loan to the Sponsor or the applicable Original Loan Seller, as
applicable, and the Trustee shall execute and deliver at the direction of the
Sponsor or the applicable Original Loan Seller, as applicable, such instruments
of transfer or assignment prepared by the Sponsor or the applicable Original
Loan Seller, as applicable, in each case without recourse, as shall be necessary
to vest title in the Sponsor or the applicable Original Loan Seller, as
applicable, or its designee, the Trustee's interest in any Deleted Mortgage Loan
substituted for pursuant to this Section 2.03.
(e) For any month in which American Home, Fremont, Quicken or the
Sponsor, as applicable, substitutes one or more Substitute Mortgage Loans for
one or more Deleted Mortgage Loans, the Depositor will determine the amount (if
any) by which the aggregate unpaid principal balance of all such Substitute
Mortgage Loans as of the date of substitution is less than the aggregate Stated
Principal Balance of all such Deleted Mortgage Loans (after application of the
scheduled principal portion of the Scheduled Payments due in the Due Period of
substitution). The Depositor shall use reasonable efforts to cause the amount of
such shortage (the "Substitution Adjustment Amount") plus an amount equal to the
aggregate of any unreimbursed Advances and Servicing Advances with respect to
such Deleted Mortgage Loans to be remitted, by American Home, Fremont, Quicken
or the Sponsor, as applicable, to the Servicer for deposit into the Collection
Account on or before the next Remittance Date.
(f) In the event that a Mortgage Loan shall have been repurchased
pursuant to this Agreement, the American Home Agreements, the Fremont
Agreements, the Quicken Agreement or the Representations and Warranties
Agreement, the Repurchase Price thereof shall be deposited in the Collection
Account by the Servicer pursuant to Section 3.10 on or before the next
Remittance Date and upon such deposit of the Repurchase Price, and receipt of a
Request for Release in the form of Exhibit J hereto, the Trustee shall release
the related Custodial File held for the benefit of the Certificateholders to
such Person as directed by the Servicer, and the Trustee shall execute and
deliver at such Person's direction such instruments of transfer or assignment
prepared by such Person, in each case without recourse, as shall be necessary to
transfer title from the Trustee. It is understood and agreed that the obligation
under this Agreement of any Person to cure, repurchase or replace any Mortgage
Loan as to which a breach has occurred and is continuing, together with
satisfaction of any related indemnification obligations, shall constitute the
sole remedy against such Persons respecting such breach available to
Certificateholders, the Depositor, the Servicer or the Trustee on their behalf.
The representations and warranties made pursuant to this Section
2.03 shall survive delivery of the respective Custodial Files to the Trustee for
the benefit of the Certificateholders.
Section 2.04 [Reserved].
Section 2.05 Execution and Delivery of Certificates. The Trustee
acknowledges the transfer and assignment to it of the Trust Fund and,
concurrently with such transfer and assignment, has executed and delivered to or
upon the order of the Depositor, the Certificates in authorized Denominations
evidencing directly or indirectly the entire ownership of the Trust Fund. The
Trustee agrees to hold the Trust Fund and exercise the rights referred to above
for the benefit of all present and future Holders of the Certificates.
Section 2.06 REMIC Matters. The Preliminary Statement sets forth the
designations for federal income tax purposes of all REMIC interests created
hereby. The "Start-up Day" for purposes of the REMIC Provisions for each Trust
REMIC shall be the Closing Date. The "latest possible maturity date" for each
regular interest is the Distribution Date occurring in October 2036, which is
the Distribution Date in the month following the month in which the latest
Mortgage Loan maturity date 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
or Yield Maintenance Provider, shall be deemed paid from the Upper-Tier REMIC in
respect of the Class UT-X Interest and the Class UT-IO Interest to the Holders
of the Class X Certificates prior to distribution of any Basis Risk Payments to
the Offered Certificates (other than the Class A-2 Certificates) or Net Swap
Payments or Swap Termination Payments to the Swap Provider.
For federal income tax purposes, any amount distributed on the
Offered 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, in the case of the LIBOR Certificates, from the
Supplemental Interest Trust Account, as applicable, and any amount distributable
on a Class of Upper-Tier Regular Interest on such Distribution Date in excess of
the amount distributable on the Corresponding Class of Offered 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 2.07 Representations and Warranties of the Depositor. The
Depositor hereby represents, warrants and covenants to the Trustee and the
Servicer that as of the date of this Agreement or as of such date specifically
provided herein:
(a) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware;
(b) The Depositor has the corporate power and authority to convey
the Mortgage Loans and to execute, deliver and perform, and to enter into and
consummate the transactions contemplated by, this Agreement;
(c) This Agreement has been duly and validly authorized, executed
and delivered by the Depositor, all requisite corporate action having been
taken, and, assuming the due authorization, execution and delivery hereof by the
Servicer and the Trustee, constitutes or will constitute the legal, valid and
binding agreement of the Depositor, enforceable against the Depositor in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights of creditors generally, and by general
equity principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law);
(d) No consent, approval, authorization or order of or registration
or filing with, or notice to, any governmental authority or court is required
for the execution, delivery and performance of or compliance by the Depositor
with this Agreement or the consummation by the Depositor of any of the
transactions contemplated hereby, except as have been made on or prior to the
Closing Date;
(e) None of the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby or thereby, or the
fulfillment of or compliance with the terms and conditions of this Agreement,
(i) conflicts or will conflict with or results or will result in a breach of, or
constitutes or will constitute a default or results or will result in an
acceleration under (A) the charter or bylaws of the Depositor, or (B) of any
term, condition or provision of any material indenture, deed of trust, contract
or other agreement or instrument to which the Depositor or any of its
subsidiaries is a party or by which it or any of its subsidiaries is bound; (ii)
results or will result in a violation of any law, rule, regulation, order,
judgment or decree applicable to the Depositor of any court or governmental
authority having jurisdiction over the Depositor or its subsidiaries; or (iii)
results in the creation or imposition of any lien, charge or encumbrance which
would have a material adverse effect upon the Mortgage Loans or any documents or
instruments evidencing or securing the Mortgage Loans;
(f) There are no actions, suits or proceedings before or against or
investigations of, the Depositor pending, or to the knowledge of the Depositor,
threatened, before any court, administrative agency or other tribunal, and no
notice of any such action, which, in the Depositor's reasonable judgment, might
materially and adversely affect the performance by the Depositor of its
obligations under this Agreement, or the validity or enforceability of this
Agreement;
(g) The Depositor is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency that may materially and adversely affect its
performance hereunder; and
(h) Immediately prior to the transfer and assignment by the
Depositor to the Trustee on the Closing Date, the Depositor had good title to,
and was the sole owner of each Mortgage Loan, free of any interest of any other
Person, and the Depositor has transferred all right, title and interest in each
Mortgage Loan to the Trustee. The transfer of each Mortgage Note and each
Mortgage as and in the manner contemplated by this Agreement is sufficient
either (i) fully to transfer to the Trustee, for the benefit of the
Certificateholders, all right, title, and interest of the Depositor thereto as
note holder and mortgagee or (ii) to grant to the Trustee, for the benefit of
the Certificateholders, the security interest referred to in Section 10.04.
It is understood and agreed that the representations, warranties and
covenants set forth in this Section 2.07 shall survive delivery of the
respective Custodial Files to the Trustee and shall inure to the benefit of the
Trustee.
Section 2.08 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 American Home pursuant to the American Home
Agreements, Fremont pursuant to the Fremont Agreements, Quicken pursuant to the
Quicken 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 to the Sponsor. The Trustee
shall take such action (at its option with respect to repurchases relating to
early payment default), with the Depositor's consent, with respect to such
breach under the American Home Agreements, Fremont Agreements, Quicken Agreement
or Representations and Warranties Agreement, as applicable, as may be necessary
or appropriate to enforce the rights of the Trust with respect thereto.
Section 2.09 Purposes and Powers of the Trust. The purpose of the
common law trust, as created hereunder, is to engage in the following
activities:
(a) acquire and hold the Mortgage Loans and the other assets of the
Trust Fund and the proceeds therefrom;
(b) to issue the Certificates sold to the Depositor in exchange for
the Mortgage Loans;
(c) to make payments on the Certificates;
(d) to engage in those activities that are necessary, suitable or
convenient to accomplish the foregoing or are incidental thereto or connected
therewith; and
(e) subject to compliance with this Agreement, to engage in such
other activities as may be required in connection with conservation of the Trust
Fund and the making of distributions to the Certificateholders.
The trust is hereby authorized to engage in the foregoing
activities. The Trustee shall not cause the trust to engage in any activity
other than in connection with the foregoing and as required or authorized by the
terms of this Agreement while any Certificate is outstanding.
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicer to Service Mortgage Loans. (a) For and on
behalf of the Certificateholders, the Servicer shall service and administer the
Mortgage Loans in accordance with the terms of this Agreement and the respective
Mortgage Loans, to the extent consistent with such terms, in compliance with all
applicable federal, state and local laws, and in the same manner in which it
services and administers similar mortgage loans for its own portfolio, giving
due consideration to customary and usual standards of practice of mortgage
lenders and loan servicers administering similar mortgage loans but without
regard to:
(i) any relationship that the Servicer, any Subservicer or any
Affiliate of the Servicer or any Subservicer may have with the related
Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the
Servicer or any Affiliate of the Servicer;
(iii) the Servicer's obligation to make P&I Advances or Servicing
Advances; or
(iv) the amount of the Servicer's or any Subservicer's compensation
for its services hereunder.
To the extent consistent with the foregoing, the Servicer shall seek
to maximize the timely and complete recovery of principal and interest on the
related Mortgage Notes. Subject only to the above-described servicing standards
and the terms of this Agreement and of the respective Mortgage Loans, the
Servicer shall have full power and authority, acting alone or through
Subservicers as provided in Section 3.02, to do or cause to be done any and all
things in connection with such servicing and administration which it may deem
necessary or desirable. Without limiting the generality of the foregoing, the
Servicer in its own name or in the name of a Subservicer is hereby authorized
and empowered by the Trustee when the Servicer believes it appropriate in its
best judgment in accordance with Accepted Servicing Practices, to execute and
deliver any and all instruments of satisfaction or cancellation, or of partial
or full release or discharge, and all other comparable instruments, with respect
to the related Mortgage Loans and the Mortgaged Properties and to institute
foreclosure proceedings or obtain a deed-in-lieu of foreclosure so as to convert
the ownership of such properties, and to hold or cause to be held title to such
properties, on behalf of the Trustee and in the name of the Trust. The Servicer
shall service and administer the Mortgage Loans in accordance with applicable
state and federal law and shall provide to the Mortgagors any reports required
to be provided to them thereby. Subject to Section 3.16, the Trustee shall
execute, at the written request of the Servicer, and furnish to the Servicer and
any Subservicer such documents as are necessary or appropriate to enable the
Servicer or any Subservicer to carry out their servicing and administrative
duties hereunder, and the Trustee hereby grants to the Servicer, and 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. At the
request of the Servicer, the Trustee shall execute a reasonable number of powers
of attorney in the form attached hereto as Exhibit P in favor of the Servicer
for the purposes described herein to the extent necessary or desirable to enable
the Servicer to perform its duties hereunder. The Trustee shall not be liable
for the actions of the Servicer or any Subservicers under such powers of
attorney. If the Servicer receives any notice of suit, litigation or proceeding
in the name of Deutsche Bank National Trust Company, then the Servicer shall
promptly forward a copy of same to the Trustee unless the notice of said suit,
litigation or proceeding was provided by the Trustee to the Servicer.
(b) In accordance with the standards of the preceding paragraph, the
Servicer shall advance or cause to be advanced funds as necessary for the
purpose of effecting the timely payment of taxes and assessments on the
Mortgaged Properties (to the extent the Servicer has received reasonable timely
notice that such taxes or assessments have not been paid by the related
Mortgagor or the owner or the servicer of the related First Lien Mortgage Loan),
which advances shall be Servicing Advances reimbursable in the first instance
from related collections from the Mortgagors, and further as provided in Section
3.11. Any cost incurred by the Servicer or by Subservicers in effecting the
timely payment of taxes and assessments on a Mortgaged Property shall not be
added to the unpaid principal balance of the related Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit. Notwithstanding
anything in this Agreement to the contrary, however, the Servicer need not make
any future advances with respect to a Mortgage Loan if the Servicer makes a good
faith determination that such advance would, if made, constitute a
Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance, as set forth in
Section 4.01.
(c) The Servicer shall not (i) permit any modification with respect
to any Mortgage Loan that would change the Mortgage Interest Rate, reduce or
increase the principal balance (except for reductions resulting from actual
payments of principal) or change the final maturity date on such Mortgage Loan
(except for (A) a reduction of interest or principal payments resulting from the
application of the Servicemembers Civil Relief Act or any similar state statutes
or (B) as provided in Section 3.07, if the Mortgagor is in default with respect
to the Mortgage Loan or such default is, in the judgment of the Servicer,
reasonably foreseeable) or (ii) permit any modification, waiver or amendment of
any term of any Mortgage Loan that would both (A) effect an exchange or
reissuance of such Mortgage Loan under Section 1001 of the Code (or final,
temporary or proposed Treasury regulations promulgated thereunder) and (B) cause
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.
The Servicer may delegate its responsibilities under this Agreement;
provided, however, that no such delegation shall release the Servicer from the
responsibilities or liabilities arising under this Agreement.
(d) If the Mortgage relating to a Mortgage Loan had a related First
Lien Mortgage Loan on the related Mortgaged Property as of the Cut-off Date,
then the Servicer, in such capacity, may consent to the refinancing of the
related First Lien Mortgage Loan, provided that the following requirements are
met:
(i) the resulting Combined Loan-to-Value Ratio of such Mortgage Loan
is no higher than the Combined Loan-to-Value Ratio prior to such
refinancing;
(ii) the interest rate, or, in the case of an adjustable rate
related First Lien Mortgage Loan, the maximum interest rate, for the loan
evidencing the refinanced senior lien is no more than 2.0% higher than the
interest rate or the maximum interest rate, as the case may be, on the
existing First Lien Mortgage Loan immediately prior to the date of such
refinancing; and
(iii) the loan evidencing the refinanced senior lien is not subject
to negative amortization.
Section 3.02 Subservicing Agreements between the Servicer and
Subservicers.(a)
(a) The Servicer may enter into subservicing agreements with
subservicers (each, a "Subservicer"), for the servicing and administration of
the Mortgage Loans ("Subservicing Agreements").
(b) Each Subservicer shall be (i) authorized to transact business in
the state or states in which the related Mortgaged Properties it is to service
are situated, if and to the extent required by applicable law to enable the
Subservicer to perform its obligations hereunder and under the Subservicing
Agreement, (ii) an institution approved as a mortgage loan originator by the
Federal Housing Administration or an institution that has deposit accounts
insured by the FDIC and (iii) a Xxxxxxx Mac or Xxxxxx Mae approved mortgage
servicer. Each Subservicing Agreement must impose on the Subservicer
requirements conforming to the provisions set forth in Section 3.08 and provide
for servicing of the Mortgage Loans consistent with the terms of this Agreement.
The Servicer will examine each Subservicing Agreement and will be familiar with
the terms thereof. The terms of any Subservicing Agreement will not be
inconsistent with any of the provisions of this Agreement. The Servicer and the
Subservicers may enter into and make amendments to the Subservicing Agreements
or enter into different forms of Subservicing Agreements; provided, however,
that any such amendments or different forms shall be consistent with and not
violate the provisions of this Agreement, and that no such amendment or
different form shall be made or entered into which could be reasonably expected
to be materially adverse to the interests of the Trustee, without the consent of
the Trustee. Any variation without the consent of the Trustee from the
provisions set forth in Section 3.08 relating to insurance or priority
requirements of Subservicing Accounts, or credits and charges to the
Subservicing Accounts or the timing and amount of remittances by the
Subservicers to the Servicer, are conclusively deemed to be inconsistent with
this Agreement and therefore prohibited. The Servicer shall deliver to the
Trustee and the Depositor copies of all Subservicing Agreements, and any
amendments or modifications thereof, promptly upon the Servicer's execution and
delivery of such instruments.
(c) As part of its servicing activities hereunder, the Servicer
(except as otherwise provided in the last sentence of this paragraph), for the
benefit of the Trustee, shall enforce the obligations of each Subservicer under
the related Subservicing Agreement, including, without limitation, any
obligation to make advances in respect of delinquent payments as required by a
Subservicing Agreement. Such enforcement, including, without limitation, the
legal prosecution of claims, termination of Subservicing Agreements, and the
pursuit of other appropriate remedies, shall be in such form and carried out to
such an extent and at such time as the Servicer, in its good faith business
judgment, would require were it the owner of the related Mortgage Loans. The
Servicer shall pay the costs of such enforcement at its own expense, and shall
be reimbursed therefor only (i) from a general recovery resulting from such
enforcement, to the extent, if any, that such recovery exceeds all amounts due
in respect of the related Mortgage Loans or (ii) from a specific recovery of
costs, expenses or attorneys' fees against the party against whom such
enforcement is directed.
Section 3.03 Successor Subservicers. The Servicer shall be entitled
to terminate any Subservicing Agreement and the rights and obligations of any
Subservicer pursuant to any Subservicing Agreement in accordance with the terms
and conditions of such Subservicing Agreement. In the event of termination of
any Subservicer, all servicing obligations of such Subservicer shall be assumed
simultaneously by the Servicer without any act or deed on the part of such
Subservicer or the Servicer, and the Servicer either shall service directly the
related Mortgage Loans or shall enter into a Subservicing Agreement with a
successor Subservicer which qualifies under Section 3.02.
Any Subservicing Agreement shall include the provision that such
agreement may be immediately terminated by the Depositor or the Trustee without
fee, in accordance with the terms of this Agreement, in the event that the
Servicer shall, for any reason, no longer be the Servicer (including termination
due to an Event of Default).
Section 3.04 Liability of the Servicer. Notwithstanding any
Subservicing Agreement, any of the provisions of this Agreement relating to
agreements or arrangements between the Servicer and a Subservicer or reference
to actions taken through a Subservicer or otherwise, the Servicer shall remain
obligated and primarily liable to the Trustee for the servicing and
administering of the Mortgage Loans in accordance with the provisions of Section
3.01 without diminution of such obligation or liability by virtue of such
Subservicing Agreements or arrangements or by virtue of indemnification from the
Subservicer and to the same extent and under the same terms and conditions as if
the Servicer alone were servicing and administering such Mortgage Loans. The
Servicer shall be entitled to enter into any agreement with a Subservicer for
indemnification of the Servicer by such Subservicer and nothing contained in
this Agreement shall be deemed to limit or modify such indemnification.
Section 3.05 No Contractual Relationship between Subservicers and
the Trustee. Any Subservicing Agreement that may be entered into and any
transactions or services relating to the Mortgage Loans involving a Subservicer
in its capacity as such shall be deemed to be between the Subservicer and the
Servicer alone, and the Trustee (or any successor Servicer) shall not be deemed
a party thereto and shall have no claims, rights, obligations, duties or
liabilities with respect to the Subservicer except as set forth in Section 3.06.
The Servicer shall be solely liable for all fees owed by it to any Subservicer,
irrespective of whether the Servicer's compensation pursuant to this Agreement
is sufficient to pay such fees.
Section 3.06 Assumption or Termination of Subservicing Agreements by
Trustee. In the event the Servicer at any time shall for any reason no longer be
the Servicer (including by reason of the occurrence of an Event of Default), the
Trustee, or its designee, or the successor Servicer if the successor Servicer is
not the Trustee, shall thereupon assume all of the rights and obligations of the
Servicer under each Subservicing Agreement that the Servicer may have entered
into, with copies thereof provided to the Trustee prior to the Trustee assuming
such rights and obligations, unless the Trustee elects to terminate any
Subservicing Agreement in accordance with its terms as provided in Section 3.03.
Upon such assumption, the Trustee, its designee or the successor
servicer shall be deemed, subject to Section 3.03, to have assumed all of the
Servicer's interest therein and to have replaced the Servicer as a party to each
Subservicing Agreement to which the predecessor Servicer was a party to the same
extent as if each Subservicing Agreement had been assigned to the assuming
party, except that (i) the Servicer shall not thereby be relieved of any
liability or obligations under any Subservicing Agreement that arose before it
ceased to be the Servicer and (ii) none of the Depositor, the Trustee, their
designees or any successor to the Servicer shall be deemed to have assumed any
liability or obligation of the Servicer that arose before it ceased to be the
Servicer.
The Servicer at its expense shall, upon request of the Trustee,
deliver to the assuming party all documents and records relating to each
Subservicing Agreement and the Mortgage Loans then being serviced by it and an
accounting of amounts collected and held by or on behalf of it, and otherwise
use its best efforts to effect the orderly and efficient transfer of the
Subservicing Agreements to the assuming party.
Section 3.07 Collection of Certain Mortgage Loan Payments. (a) The
Servicer shall make reasonable efforts to collect all payments called for under
the terms and provisions of the Mortgage Loans and shall, to the extent such
procedures shall be consistent with this Agreement and the terms and provisions
of any applicable insurance policies, follow such collection procedures as it
would follow with respect to mortgage loans comparable to the Mortgage Loans and
held for its own account. Consistent with the foregoing and Accepted Servicing
Practices, the Servicer may (i) waive any late payment charge or, if applicable,
any penalty interest, or (ii) extend the Due Dates for the Scheduled Payments
due on a Mortgage Note for a period of not greater than 180 days; provided, that
any extension pursuant to clause (ii) above shall not affect the amortization
schedule of any Mortgage Loan for purposes of any computation hereunder, except
as provided below. In the event of any such arrangement pursuant to clause (ii)
above, the Servicer shall make timely advances on such Mortgage Loan during such
extension to the extent required by Section 4.01 and in accordance with the
amortization schedule of such Mortgage Loan without modification thereof by
reason of such arrangements, subject to Section 4.01(d) pursuant to which the
Servicer shall not be required to make any such advances that are Nonrecoverable
P&I Advances. Notwithstanding the foregoing, in the event that any Mortgage Loan
is in default or in the judgment of the Servicer, such default is reasonably
foreseeable, the Servicer, consistent with the standards set forth in Section
3.01, may also waive, modify or vary any term of such Mortgage Loan (including
modifications that would change the Mortgage Interest Rate, forgive the payment
of principal or interest, extend the final maturity date of such Mortgage Loan
or waive, in whole or in part, a Prepayment Premium), accept payment from the
related Mortgagor of an amount less than the Stated Principal Balance in final
satisfaction of such Mortgage Loan, or consent to the postponement of strict
compliance with any such term or otherwise grant indulgence to any Mortgagor
(any and all such waivers, modifications, variances, forgiveness of principal or
interest, postponements, or indulgences collectively referred to herein as
"Forbearance"); provided, however, that the Servicer's approval of a
modification of a Due Date shall not be considered a modification for purposes
of this sentence; provided further, that the final maturity date of any Mortgage
Loan may not be extended beyond the Final Scheduled Distribution Date for the
Offered Certificates. The Servicer's analysis supporting any Forbearance and the
conclusion that any Forbearance meets the standards of Section 3.01 shall be
reflected in writing in the applicable Servicing File or on the Servicer's
servicing records. In addition, notwithstanding the foregoing, the Servicer may
also waive (or permit a Subservicer to waive), in whole or in part, a Prepayment
Premium if such waiver would, in the Servicer's judgment, maximize recoveries on
the related Mortgage Loan or if such Prepayment Premium is (i) not permitted to
be collected by applicable law, or the collection thereof would be considered
"predatory" pursuant to written guidance published by any applicable federal,
state or local regulatory authority having jurisdiction over such matters, or
(ii) the enforceability thereof is limited (1) by bankruptcy, insolvency,
moratorium, receivership or other similar laws relating to creditor's rights or
(2) due to acceleration in connection with a foreclosure or other involuntary
payment. If a Prepayment Premium is waived other than as permitted in this
Section 3.07(a), then the Servicer is required to pay the amount of such waived
Prepayment Premium, for the benefit of the Holders of the Class P Certificates,
by depositing such amount into the Collection Account together with and at the
time that the amount prepaid on the related Mortgage Loan is required to be
deposited into the Collection Account; provided, however, that the Servicer
shall not have an obligation to pay the amount of any uncollected Prepayment
Premium if the failure to collect such amount is the direct result of inaccurate
or incomplete information on the Mortgage Loan Schedule in effect at such time.
(b) The Servicer shall give notice to the Trustee, each Rating
Agency and the Depositor of any proposed change of the location of the
Collection Account within a reasonable period of time prior to any change
thereof.
Section 3.08 Subservicing Accounts. In those cases where a
Subservicer is servicing a Mortgage Loan pursuant to a Subservicing Agreement,
the Subservicer will be required to establish and maintain one or more accounts
(collectively, the "Subservicing Account"). The Subservicing Account shall be an
Eligible Account and shall otherwise be acceptable to the Servicer. The
Subservicer shall deposit in the clearing account (which account must be an
Eligible Account) in which it customarily deposits payments and collections on
mortgage loans in connection with its mortgage loan servicing activities on a
daily basis, and in no event more than one Business Day after the Subservicer's
receipt thereof, all proceeds of Mortgage Loans received by the Subservicer less
its servicing compensation to the extent permitted by the Subservicing
Agreement, and shall thereafter deposit such amounts in the Subservicing
Account, in no event more than two Business Days after the deposit of such funds
into the clearing account. The Subservicer shall thereafter deposit such
proceeds in the Collection Account or remit such proceeds to the Servicer for
deposit in the Collection Account not later than two Business Days after the
deposit of such amounts in the Subservicing Account. For purposes of this
Agreement, the Servicer shall be deemed to have received payments on the
Mortgage Loans when the Subservicer receives such payments.
Section 3.09 [Reserved].
Section 3.10 Collection Account. (a) On behalf of the Trustee, the
Servicer shall establish and maintain, or cause to be established and
maintained, one or more segregated Eligible Accounts (each such account or
accounts, a "Collection Account"), held in trust for the benefit of the Trustee.
Funds in the Collection Account shall not be commingled with any other funds of
the Servicer. On behalf of the Trustee, the Servicer shall deposit or cause to
be deposited in the clearing account (which account must be an Eligible Account)
in which it customarily deposits payments and collections on mortgage loans in
connection with its mortgage loan servicing activities on a daily basis, and in
no event more than one Business Day after the Servicer's receipt thereof, and
shall thereafter deposit in the Collection Account, in no event more than two
Business Days after the deposit of such funds into the clearing account, as and
when received or as otherwise required hereunder, the following payments and
collections received or made by it subsequent to the Cut-off Date (other than in
respect of principal or interest on the related Mortgage Loans due on or before
the Cut-off Date), or payments (other than Principal Prepayments) received by it
on or prior to the related Cut-off Date but allocable to a Due Period subsequent
thereto:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest (net of the Servicing Fee)
on each Mortgage Loan;
(iii) all Insurance Proceeds and Condemnation Proceeds (to the
extent such Insurance Proceeds and Condemnation Proceeds are not to be
applied to the restoration of the related Mortgaged Property or released
to the related Mortgagor in accordance with the express requirements of
law or in accordance with prudent and customary servicing practices) and
all Liquidation Proceeds;
(iv) any amounts required to be deposited pursuant to Section 3.12
in connection with any losses realized on Permitted Investments with
respect to funds held in the Collection Account;
(v) any amounts required to be deposited by the Servicer pursuant to
the second paragraph of Section 3.13(a) in respect of any blanket policy
deductibles;
(vi) all proceeds of any Mortgage Loan repurchased or purchased in
accordance with this Agreement and any Substitution Adjustment Amount; and
(vii) all Prepayment Premiums collected by the Servicer.
The foregoing requirements for deposit in the Collection Accounts
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, any Prepayment Interest Excess and payments in the
nature of late payment charges, NSF fees, reconveyance fees, assumption fees and
other similar fees and charges need not be deposited by the Servicer in the
Collection Account and shall, upon collection, belong to the Servicer as
additional compensation for its servicing activities. In the event the Servicer
shall deposit in the Collection Account any amount not required to be deposited
therein, it may at any time withdraw such amount from the Collection Account,
any provision herein to the contrary notwithstanding.
(b) Funds in the Collection Account may be invested in Permitted
Investments in accordance with the provisions set forth in Section 3.12. The
Servicer shall give notice to the Trustee and the Depositor of the location of
the Collection Account maintained by it when established and prior to any change
thereof.
Section 3.11 Withdrawals from the Collection Account. (a) The
Servicer shall, from time to time, make withdrawals from the Collection Account
for any of the following purposes or as described in Section 4.01:
(i) on or prior to the Remittance Date, to remit to the Trustee (A)
the Trustee Fee with respect to such Distribution Date and (B) all
Available Funds in respect of the related Distribution Date together with
all amounts representing Prepayment Premiums from the Mortgage Loans
received during the related Prepayment Period;
(ii) to reimburse the Servicer for P&I Advances, but only to the
extent of amounts received which represent Late Collections (net of the
related Servicing Fees) of Scheduled Payments on Mortgage Loans with
respect to which such P&I Advances were made in accordance with the
provisions of Section 4.01;
(iii) to pay the Servicer or any Subservicer (A) any unpaid
Servicing Fees (including such unpaid Servicing Fees as provided in
Section 3.15) or (B) any unreimbursed Servicing Advances with respect to
each Mortgage Loan serviced by the Servicer, but only to the extent of any
Late Collections, Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds or other amounts as may be collected by the Servicer from a
Mortgagor, or otherwise received with respect to such Mortgage Loan (or
the related REO Property);
(iv) to pay to the Servicer as servicing compensation (in addition
to the Servicing Fee) on the Remittance Date any interest or investment
income earned on funds deposited in the Collection Account;
(v) to pay the Sponsor, the applicable Original Loan Seller 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 the Servicer for (A) any P&I Advance or Servicing
Advance previously made which the Servicer has determined to be a
Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance in
accordance with the provisions of Section 4.01 and (B) any unpaid
Servicing Fees to the extent not recoverable from Liquidation Proceeds,
Insurance Proceeds or other amounts received with respect to the related
Mortgage Loan under Section 3.11(a)(iii);
(vii) to pay, or to reimburse the Servicer for advances in respect
of, expenses incurred in connection with any Mortgage Loan serviced by the
Servicer pursuant to Section 3.15;
(viii) to reimburse the Servicer, the Depositor or the Trustee for
expenses incurred by or reimbursable to the Servicer, the Depositor or the
Trustee, as the case may be, pursuant to Section 6.03, Section 7.02 or
Section 8.05;
(ix) to reimburse the Servicer or the Trustee, as the case may be,
for expenses reasonably incurred in respect of the breach or defect giving
rise to the repurchase obligation under Section 2.03 of this Agreement
that were included in the Repurchase Price of the Mortgage Loan, including
any expenses arising out of the enforcement of the repurchase obligation,
to the extent not otherwise paid pursuant to the terms hereof;
(x) to withdraw any amounts deposited in the Collection Account in
error or for which amounts previously deposited are returned due to a "not
sufficient funds" or other denial of payment by the related Mortgagor's
banking institution;
(xi) to withdraw any amounts held in the Collection Account and not
required to be remitted to the Trustee on the Remittance Date occurring in
the month in which such amounts are deposited into the Collection Account,
to reimburse the Servicer for xxxxxxxxxxxx X&X Advances;
(xii) to invest funds in Permitted Investments in accordance with
Section 3.12;
(xiii) to pay itself any Prepayment Interest Excess (to the extent
deposited in the Collection Account by the Servicer); and
(xiv) to clear and terminate the Collection Account upon termination
of this Agreement.
To the extent that the Servicer does not timely make the remittance
referred to in clause (i) above, the Servicer shall pay the Trustee for the
account of the Trustee interest on any amount not timely remitted at the prime
rate, from and including the applicable Remittance Date to but excluding the
date such remittance is actually made.
(b) The Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Collection Account, to the extent held by or on behalf of
it, pursuant to subclauses (a)(ii), (iii), (v), (vi), (vii), (viii) and (ix)
above. The Servicer shall provide written notification to the Depositor, on or
prior to the next succeeding Remittance Date, upon making any withdrawals from
the related Collection Account pursuant to subclauses (a)(vi) and (viii) above.
Section 3.12 Investment of Funds in the Collection Account and the
Distribution Account. (a) The Servicer may invest the funds in the Collection
Account and the Trustee may invest funds in the Distribution Account during the
Trustee Float Period, and shall (except during the Trustee Float Period), invest
such funds in the Distribution Account at the direction of the Depositor (for
purposes of this Section 3.12, each of the Collection Account and the
Distribution Accounts are referred to as an "Investment Account"), in one or
more Permitted Investments bearing interest or sold at a discount, and maturing,
unless payable on demand, no later than the Business Day on which such funds are
required to be withdrawn from such account pursuant to this Agreement (except
for investments made at the Depositor's direction, which shall mature no later
than the Business Day immediately preceding the date of required withdrawal).
All such Permitted Investments shall be held to maturity, unless payable on
demand. Any investment of funds in an Investment Account shall be made in the
name of the Trustee. The Trustee shall be entitled to sole possession (except
with respect to investment direction of funds held in the Collection Account and
any income and gain realized thereon in any Account other than the Distribution
Account during the Trustee Float Period) over each such investment, and any
certificate or other instrument evidencing any such investment shall be
delivered directly to the Trustee or its agent, together with any document of
transfer necessary to transfer title to such investment to the Trustee. In the
event amounts on deposit in an Investment Account are at any time invested in a
Permitted Investment payable on demand, the Trustee may:
(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 Servicer, shall
be for the benefit of the Servicer and shall be subject to its withdrawal in the
manner set forth in Section 3.11. Any other benefit derived from the Collection
Account associated with the receipt, disbursement and accumulation of principal,
interest, taxes, hazard insurance, mortgage blanket insurance, and like sources,
shall accrue to the benefit of the Servicer, except that the Servicer shall not
realize any economic benefit from any forced charging of services except as
permitted by applicable law. The Servicer shall deposit in the Collection
Account the amount of any loss of principal incurred in respect of any such
Permitted Investment made with funds in such accounts immediately upon
realization of such loss.
(c) All income and gain realized from the investment of funds
deposited in the Distribution Account held by the Trustee, shall be for the
benefit of the Depositor (except for any income or gain realized from the
investment of funds on deposit in the Distribution Account during the Trustee
Float Period, which shall be for the benefit of the Trustee). The Depositor
shall deposit in the Distribution Account (except with respect to the Trustee
Float Period, in which case the Trustee shall so deposit) the amount of any loss
of principal incurred in respect of any such Permitted Investment made with
funds in such accounts immediately upon realization of such loss.
(d) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Trustee shall take such action as may be appropriate to enforce
such payment or performance, including the institution and prosecution of
appropriate proceedings.
(e) The Trustee or its Affiliates are permitted to receive
additional compensation that could be deemed to be in the Trustee's economic
self-interest for (i) serving as investment adviser, administrator, shareholder,
servicing agent, custodian or sub-custodian with respect to certain of the
Permitted Investments, (ii) using Affiliates to effect transactions in certain
Permitted Investments and (iii) effecting transactions in certain Permitted
Investments.
(f) The Trustee shall not be liable for the amount of any loss
incurred with respect of any investment (except that during the Trustee Float
Period, it will be responsible for reimbursing the Trust for such loss) or lack
of investment of funds held in any Investment Account or the Distribution
Account if made in accordance with this Section 3.12.
Section 3.13 Maintenance of Hazard Insurance, Errors and Omissions
and Fidelity Coverage. (a) The Servicer shall obtain and maintain a blanket
policy insuring against losses arising from fire and hazards on all of the
Mortgage Loans, which policy shall provide coverage in an amount which is at
least equal to the least of (i) the outstanding principal balance of such
Mortgage Loan, (ii) the amount necessary to fully compensate for any damage or
loss to the improvements that are a part of such property on a replacement cost
basis, (iii) the maximum insurable value of the improvements which are a part of
such Mortgaged Property, and (iv) the amount determined by applicable federal or
state law, in each case in an amount not less than such amount as is necessary
to avoid the application of any coinsurance clause contained in the related
hazard insurance policy. Any amounts to be collected by the Servicer under any
such policy (other than amounts to be applied to the restoration or repair of
the property subject to the related Mortgage or amounts to be released to the
Mortgagor in accordance with the procedures that the Servicer would follow in
servicing loans held for its own account, subject to the terms and conditions of
the related Mortgage and Mortgage Note) shall be deposited in the Collection
Account, subject to withdrawal pursuant to Section 3.11.
In the event that such policy contains a deductible clause, the
Servicer shall, in the event that there shall not have been maintained on the
related Mortgaged Property or REO Property a standard hazard insurance policy
and there shall have been one or more losses which would have been covered by
such policy, the Servicer shall deposit to the Collection Account from its own
funds the amount that is not otherwise payable under the blanket policy because
of such deductible clause. In connection with its activities as administrator
and servicer of the Mortgage Loans, the Servicer agrees to prepare and present,
on behalf of itself and the Trustee, claims under any such blanket policy in a
timely fashion in accordance with the terms of such policy.
(b) The Servicer shall keep in force during the term of this
Agreement a policy or policies of insurance covering errors and omissions for
failure in the performance of the Servicer's obligations under this Agreement,
which policy or policies shall be in such form and amount that would meet the
requirements of Xxxxxx Xxx or Xxxxxxx Mac if it were the purchaser of the
Mortgage Loans, unless the Servicer has obtained a waiver of such requirements
from Xxxxxx Mae or Xxxxxxx Mac. The Servicer shall also maintain a fidelity bond
in the form and amount that would meet the requirements of Xxxxxx Mae or Xxxxxxx
Mac, unless the Servicer has obtained a waiver of such requirements from Xxxxxx
Mae or Xxxxxxx Mac. The Servicer shall provide the Trustee upon request with
copies of any such insurance policies and fidelity bond. The Servicer shall be
deemed to have complied with this provision if an Affiliate of the Servicer has
such errors and omissions and fidelity bond coverage and, by the terms of such
insurance policy or fidelity bond, the coverage afforded thereunder extends to
the Servicer. Any such errors and omissions policy and fidelity bond shall by
its terms not be cancelable without thirty days' prior written notice to the
Trustee. The Servicer shall also cause each Subservicer to maintain a policy of
insurance covering errors and omissions and a fidelity bond which would meet
such requirements.
Section 3.14 Enforcement of Due-on-Sale Clauses; Assumption
Agreements. The Servicer will, to the extent it has knowledge of any conveyance
or prospective conveyance of any Mortgaged Property by any Mortgagor (whether by
absolute conveyance or by contract of sale, and whether or not the Mortgagor
remains or is to remain liable under the Mortgage Note and/or the Mortgage),
exercise its rights to accelerate the maturity of such Mortgage Loan under the
"due-on-sale" clause, if any, applicable thereto; provided, however, that the
Servicer shall not be required to take such action if, in its sole business
judgment, the Servicer believes it is not in the best interests of the Trust
Fund and shall not exercise any such rights if prohibited by law from doing so.
If the Servicer reasonably believes it is unable under applicable law to enforce
such "due-on-sale" clause or if any of the other conditions set forth in the
proviso to the preceding sentence apply, the Servicer will enter into an
assumption and modification agreement from or with the person to whom such
property has been conveyed or is proposed to be conveyed, pursuant to which such
person becomes liable under the Mortgage Note, and, to the extent permitted by
applicable state law, the Mortgagor remains liable thereon. The Servicer is also
authorized to enter into a substitution of liability agreement with such person,
pursuant to which the original Mortgagor is released from liability and such
person is substituted as the Mortgagor and becomes liable under the Mortgage
Note; provided, that no such substitution shall be effective unless such person
satisfies the underwriting criteria of the Servicer and such substitution is in
the best interest of the Certificateholders as determined by the Servicer. In
connection with any assumption, modification or substitution, the Servicer shall
apply such underwriting standards and follow such practices and procedures as
shall be normal and usual in its general mortgage servicing activities and as it
applies to other mortgage loans owned solely by it. The Servicer shall not take
or enter into any assumption and modification agreement, however, unless (to the
extent practicable in the circumstances) it shall have received confirmation, in
writing, of the continued effectiveness of any applicable hazard insurance
policy, or a new policy meeting the requirements of this Section is obtained.
Any fee collected by the Servicer in respect of an assumption, modification or
substitution of liability agreement will be retained by the Servicer as
additional servicing compensation. In connection with any such assumption, no
material term of the Mortgage Note (including but not limited to the related
Mortgage Interest Rate and the amount of the Scheduled Payment) may be amended
or modified, except as otherwise required pursuant to the terms thereof or as
otherwise permitted by this Agreement. The Servicer shall notify the Trustee
that any such substitution, modification or assumption agreement has been
completed by forwarding to the Trustee the executed original of such
substitution, modification or assumption agreement, which document shall be
added to the related Mortgage File and shall, for all purposes, be considered a
part of such Mortgage File to the same extent as all other documents and
instruments constituting a part thereof.
Notwithstanding the foregoing paragraph or any other provision of
this Agreement, the Servicer shall not be deemed to be in default, breach or any
other violation of its obligations hereunder by reason of any assumption of a
Mortgage Loan by operation of law or by the terms of the Mortgage Note or any
assumption which the Servicer may be restricted by law from preventing, for any
reason whatsoever. For purposes of this Section 3.14, the term "assumption" is
deemed to also include a sale (of the Mortgaged Property) subject to the
Mortgage that is not accompanied by an assumption or substitution of liability
agreement.
Section 3.15 Realization upon Defaulted Mortgage Loans. (a) The
Servicer shall use its best efforts, consistent with Accepted Servicing
Practices, to foreclose upon or otherwise comparably convert (which may include
an acquisition of REO Property) the ownership of properties securing such of the
Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments
pursuant to Section 3.07, and which are not released from this Agreement
pursuant to any other provision hereof. The foregoing is subject to the
provisions that, in any case in which a Mortgaged Property shall have suffered
damage from an uninsured cause, the Servicer shall not be required to expend its
own funds toward the restoration of such property unless it shall determine in
its sole discretion (i) that such restoration will increase the net proceeds of
liquidation of the related Mortgage Loan to the Trustee, after reimbursement to
itself for such expenses, and (ii) that such expenses will be recoverable by the
Servicer through Insurance Proceeds, Condemnation Proceeds or Liquidation
Proceeds from the related Mortgaged Property, as contemplated in Section 3.11.
The Servicer shall be responsible for all other costs and expenses incurred by
it in any such proceedings; provided, however, that it shall be entitled to
reimbursement thereof from the related property, as contemplated in Section
3.11.
In the event that the related First Lien Mortgage Loan is not being
serviced by the Servicer, the Servicer shall have no liability for any losses
resulting from a foreclosure on a Mortgage Loan in connection with the
foreclosure on the related First Lien Mortgage Loan where the Servicer did not
receive notice or otherwise had no actual knowledge regarding such foreclosure
on the related First Lien Mortgage Loan; provided, however, if the Servicer is
either notified or has actual knowledge that any holder of a First Lien Mortgage
Loan intends to accelerate the obligations secured by the First Lien Mortgage
Loan, or that any such holder intends to declare a default under the mortgage or
promissory note secured thereby, or has filed or intends to file an election to
have the related Mortgaged Property sold or foreclosed, the Servicer shall take,
on behalf of the Trust, whatever actions are necessary to protect the interests
of the Trust in accordance with Accepted Servicing Practices and the REMIC
Provisions. The Servicer shall not be required to make a Servicing Advance
pursuant to Section 4.01 with respect thereto except to the extent that it
determines in its reasonable good faith judgment that such advance would be
recoverable from Liquidation Proceeds on the related Mortgage Loan and in no
event in an amount that is greater than the then outstanding principal balance
of the related Mortgage Loan. The Servicer shall thereafter take such action as
is reasonably necessary to recover any amount so advanced and to otherwise
reimburse itself as a Servicing Advance from the Collection Account pursuant to
Section 3.11.
The proceeds of any Liquidation Event or REO Disposition, as well as
any recovery resulting from a partial collection of Insurance Proceeds,
Condemnation Proceeds or Liquidation Proceeds or any income from an REO
Property, will be applied in the following order of priority: first, to
reimburse the Servicer or any Subservicer for any related unreimbursed Servicing
Advances, pursuant to Section 3.11 or 3.17; second, to reimburse the Servicer
for any related xxxxxxxxxxxx X&X Advances, pursuant to Section 3.11; third, to
accrued and unpaid interest on the Mortgage Loan or REO Imputed Interest, at the
Mortgage Interest Rate, to the date of the liquidation or REO Disposition, or to
the Due Date prior to the Remittance Date on which such amounts are to be
distributed if not in connection with a Liquidation Event or REO Disposition;
and fourth, as a recovery of principal of the Mortgage Loan. If the amount of
the recovery so allocated to interest is less than a full recovery thereof, that
amount will be allocated as follows: first, to unpaid Servicing Fees; and
second, as interest at the Mortgage Interest Rate (net of the Servicing Fee
Rate). The portion of the recovery so allocated to unpaid Servicing Fees shall
be reimbursed to the Servicer or any Subservicer pursuant to Section 3.11 or
3.17.
The portions of any recovery so allocated to interest at the
Mortgage Interest Rate (net of the Servicing Fee Rate) and to principal of the
Mortgage Loan shall be applied as follows: first, to reimburse the Servicer or
any Subservicer for any related unreimbursed Servicing Advances in accordance
with Section 3.11 or 3.17, and second, to the Trustee in accordance with the
provisions of Section 4.02, subject to the last paragraph of Section 3.17 with
respect to certain excess recoveries from an REO Disposition.
(b) With respect to any Mortgage Loan that is 180 days delinquent,
the Servicer shall charge off such delinquent Mortgage Loan. Once a Mortgage
Loan has been charged off, the Servicer will discontinue making P&I Advances,
the Servicer will not be entitled to any additional servicing compensation and
the Charged Off Loan will give rise to a Realized Loss. Any such Charged Off
Loan, if also discharged from the Trust, will be released from the Trust Fund,
will no longer be an asset of any Trust REMIC, and will be transferred to the
Class X-1 Certificateholders, without recourse, and thereafter (i) the Class X-1
Certificateholder will be entitled to any amounts subsequently received in
respect of any such Released Loans, (ii) the Class X-1 Certificateholder may
designate any servicer to service any such Released Loan and (iii) the Class X-1
Certificateholder may sell any such Released Loan to a third party. Once a
Mortgage Loan is charged off and discharged from the trust pursuant to this
Section 3.15(b), the Servicer shall not be obligated to service such Mortgage
Loan. The Servicer may cease any collection efforts with respect to such
Mortgage Loan, and statements of account may no longer be sent to such
Mortgagor. The Servicer shall write off each Charged Off and discharged Mortgage
Loan as bad debt.
(c) Notwithstanding the foregoing, the Servicer may determine in its
sole discretion not to discharge such Charged Off Mortgage Loan after the day
the Mortgage Loan becomes 180 days delinquent. Reasons for the Servicer not
discharging the Charged Off Loan include, but are not limited to: (i)
foreclosure proceedings are ongoing, (ii) the Mortgagor has commenced bankruptcy
proceedings, (iii) the Mortgage Loan is in the process of a Liquidation Event,
(iv) the Mortgagor is in the process of negotiating a modification, (v) the
Mortgagor is in bankruptcy but the Mortgagor is still making Mortgage Payments,
or (vi) the Servicer has a reasonable expectation that the Mortgagor will resume
payments on the Mortgage Loan.
(d) Notwithstanding anything to the contrary contained herein, in
connection with a foreclosure or acceptance of a deed in lieu of foreclosure, in
the event the Servicer has received actual notice of, or has actual knowledge of
the presence of, hazardous or toxic substances or wastes on the related
Mortgaged Property, or if the Depositor or the Trustee otherwise requests, the
Servicer shall cause an environmental inspection or review of such Mortgaged
Property to be conducted by a qualified inspector. Upon completion of the
inspection, the Servicer shall promptly provide the Trustee and the Depositor,
with a written report of the environmental inspection.
After reviewing the environmental inspection report, the Servicer
shall determine consistent with Accepted Servicing Practices, 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 Servicer determines,
consistent with Accepted Servicing Practices, to proceed with foreclosure or
acceptance of a deed in lieu of foreclosure, the Servicer shall be reimbursed
for all reasonable costs associated with such foreclosure or acceptance of a
deed in lieu of foreclosure and any related environmental clean-up costs, as
applicable, from the related Liquidation Proceeds, or if the Liquidation
Proceeds are insufficient to fully reimburse the Servicer, the Servicer shall be
entitled to be reimbursed from amounts in the Collection Account pursuant to
Section 3.11. In the event the Servicer determines not to proceed with
foreclosure or acceptance of a deed in lieu of foreclosure, the Servicer shall
be reimbursed from general collections for all Servicing Advances made with
respect to the related Mortgaged Property from the Collection Account pursuant
to Section 3.11. The Trustee shall not be responsible for any determination made
by the Servicer pursuant to this paragraph or otherwise.
Section 3.16 Release of Mortgage Files. (a) Upon the payment in full
of any Mortgage Loan, or the receipt by the Servicer of a notification that
payment in full shall be escrowed in a manner customary for such purposes, the
Servicer will, within five (5) Business Days of the payment in full, notify the
Trustee by a certification (which certification shall include a statement to the
effect that all amounts received or to be received in connection with such
payment which are required to be deposited in the Collection Account pursuant to
Section 3.10 have been or will be so deposited) of a Servicing Officer and shall
request delivery to it of the Custodial File by completing a Request for Release
to the Trustee. Upon receipt of such certification and Request for Release, the
Trustee shall promptly release the related Custodial File to the Servicer within
three (3) Business Days. No expenses incurred in connection with any instrument
of satisfaction or deed of reconveyance shall be chargeable to or reimbursed by
the Collection Account.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan, including, for this purpose, collection under
any insurance policy relating to the Mortgage Loans, the Trustee shall, upon
request of the Servicer and delivery to the Trustee of a Request for Release,
release the related Custodial File to the Servicer, and the Trustee shall, at
the direction of the Servicer, execute such documents provided to it as shall be
necessary to the prosecution of any such proceedings and the Servicer shall
retain the Mortgage File in trust for the benefit of the Trustee. Such Request
for Release shall obligate the Servicer to return each and every document
previously requested from the Custodial File to the Trustee when the need
therefor by the Servicer no longer exists, unless the Mortgage Loan has been
liquidated and the Liquidation Proceeds relating to the Mortgage Loan have been
deposited in the Collection Account or the Mortgage File or such document has
been delivered to an attorney, or to a public trustee or other public official
as required by law, for purposes of initiating or pursuing legal action or other
proceedings for the foreclosure of the Mortgaged Property either judicially or
non-judicially, and the Servicer has delivered to the Trustee a certificate of a
Servicing Officer certifying as to the name and address of the Person to which
such Mortgage File or such document was delivered and the purpose or purposes of
such delivery. Upon receipt of a certificate of a Servicing Officer stating that
such Mortgage Loan was liquidated and that all amounts received or to be
received in connection with such liquidation that are required to be deposited
into the Collection Account have been so deposited, or that such Mortgage Loan
has become an REO Property, a copy of the Request for Release shall be released
by the Trustee to the Servicer or its designee. Upon receipt of a Request for
Release under this Section 3.16, the Trustee shall deliver the related Custodial
File to the Servicer by overnight courier (at the Servicer's expense, which
expense shall be reimbursable as a Servicing Advance.
Upon written certification of a Servicing Officer, the Trustee shall
execute and deliver to the Servicer copies of any court pleadings, requests for
trustee's sale or other documents reasonably necessary to the foreclosure or
trustee's sale in respect of a Mortgaged Property or to any legal action brought
to obtain judgment against any Mortgagor on the Mortgage Note or Mortgage or to
obtain a deficiency judgment, or to enforce any other remedies or rights
provided by the Mortgage Note or Mortgage or otherwise available at law or in
equity, or shall execute and deliver to the Servicer a power of attorney
sufficient to authorize the Servicer to execute such documents on its behalf.
Each such certification shall include a request that such pleadings or documents
be executed by the Trustee and a statement as to the reason such documents or
pleadings are required and that the execution and delivery thereof by the
Trustee will not invalidate or otherwise affect the lien of the Mortgage, except
for the termination of such a lien upon completion of the foreclosure or
trustee's sale.
Section 3.17 Title, Conservation and Disposition of REO Property.
(a) This Section shall apply only to REO Properties acquired for the account of
the Trustee and shall not apply to any REO Property relating to a Mortgage Loan
which was purchased or repurchased from the Trustee pursuant to any provision
hereof. In the event that title to any such REO Property is acquired, the
Servicer shall cause the deed or certificate of sale to be issued in the name of
the Trustee, on behalf of the Certificateholders, or the Trustee's nominee.
(b) The Servicer shall manage, conserve, protect and operate each
REO Property for the Trustee solely for the purpose of its prompt disposition
and sale. The Servicer, either itself or through an agent selected by the
Servicer, shall manage, conserve, protect and operate the REO Property in the
same manner that it manages, conserves, protects and operates other foreclosed
property for its own account, and in the same manner that similar property in
the same locality as the REO Property is managed. The Servicer shall attempt to
sell the same (and may temporarily rent the same for a period not greater than
one year, except as otherwise provided below) on such terms and conditions as
the Servicer deems to be in the best interest of the Trustee.
(c) As described in paragraph (h) below, the Servicer shall use its
commercially reasonable efforts to dispose of the REO Property as soon as
possible and shall sell such REO Property in any event within three years after
title has been taken to such REO Property, unless the Servicer determines, and
gives an appropriate notice to the Trustee to such effect, that a longer period
is necessary for the orderly liquidation of such REO Property. The Trustee has
no obligation with respect to REO Dispositions.
(d) The Servicer shall segregate and hold all funds collected and
received in connection with the operation of any REO Property separate and apart
from its own funds and general assets and shall deposit such funds in the
Collection Account.
(e) The Servicer shall deposit net of reimbursement to the Servicer
for any related outstanding Servicing Advances and unpaid Servicing Fees
provided in Section 3.11, or cause to be deposited, on a daily basis in the
Collection Account all revenues received with respect to the related REO
Property and shall withdraw therefrom funds necessary for the proper operation,
management and maintenance of the REO Property.
(f) The Servicer, upon an REO Disposition, shall be entitled to
reimbursement for any related unreimbursed Servicing Advances as well as any
unpaid Servicing Fees from proceeds received in connection with the REO
Disposition, as further provided in Section 3.11.
(g) Any net proceeds from an REO Disposition which are in excess of
the unpaid principal balance of the related Mortgage Loan plus all unpaid REO
Imputed Interest thereon through the date of the REO Disposition shall be
retained by the Servicer as additional servicing compensation.
(h) The Servicer shall use its commercially reasonable efforts to
sell, or cause the Subservicer to sell, in accordance with Accepted Servicing
Practices, any REO Property as soon as possible, but in no event later than the
conclusion of the third calendar year beginning after the year of its
acquisition by the REMIC unless (i) the Servicer applies for an extension of
such period from the Internal Revenue Service pursuant to the REMIC Provisions
and Code Section 856(e)(3), in which event such REO Property shall be sold
within the applicable extension period, or (ii) the Servicer obtains for the
Trustee an Opinion of Counsel, addressed to the Depositor, the Trustee and the
Servicer, to the effect that the holding by the Pooling-Tier REMIC of such REO
Property subsequent to such period will not result in the imposition of taxes on
"prohibited transactions" as defined in Section 860F of the Code or cause any
Trust REMIC to fail to qualify as a REMIC under the REMIC Provisions or
comparable provisions of relevant state laws at any time. The Servicer shall
manage, conserve, protect and operate each REO Property serviced by the Servicer
for the Trustee solely for the purpose of its prompt disposition and sale in a
manner which does not cause such REO Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) or result in the receipt by
the related Trust REMIC of any "income from non-permitted assets" within the
meaning of Section 860F(a)(2)(B) of the Code or any "net income from foreclosure
property" which is subject to taxation under Section 860G(a)(1) of the Code.
Pursuant to its efforts to sell such REO Property, the Servicer shall either
itself or through an agent selected by the Servicer protect and conserve such
REO Property in the same manner and to such extent as is customary in the
locality where such REO Property is located and may, incident to its
conservation and protection of the interests of the Trustee on behalf of the
Certificateholders, rent the same, or any part thereof, as the Servicer deems to
be in the best interest of the Trustee on behalf of the Certificateholders for
the period prior to the sale of such REO Property; provided, however, that any
rent received or accrued with respect to such REO Property qualifies as "rents
from real property" as defined in Section 856(d) of the Code.
Section 3.18 [Reserved].
Section 3.19 Access to Certain Documentation and Information
Regarding the Mortgage Loans. The Servicer shall provide, or cause the
applicable Subservicer to provide, to the Depositor, the Trustee, the 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 Servicer. Nothing in this Section shall derogate
from the obligation of any such party to observe any applicable law prohibiting
disclosure of information regarding the Mortgagors and the failure of any such
party to provide access as provided in this Section as a result of such
obligation shall not constitute a breach of this Section.
Nothing in this Section 3.19 shall require the Servicer to collect,
create, collate or otherwise generate any information that it does not generate
in its usual course of business. The Servicer shall not be required to make
copies of or to ship documents to any Person who is not a party to this
Agreement, and then only if provisions have been made for the reimbursement of
the costs thereof. The Servicer, however, may provide copies of information
provided to the Trustee or Depositor to any party designated by the Depositor.
Section 3.20 Documents, Records and Funds in Possession of the
Servicer to Be Held for the Trustee. The Servicer shall account fully to the
Trustee for any funds received by the Servicer or which otherwise are collected
by the Servicer as Liquidation Proceeds, Condemnation Proceeds or Insurance
Proceeds in respect of any Mortgage Loan. All Mortgage Files and funds collected
or held by, or under the control of, the Servicer in respect of any Mortgage
Loans, whether from the collection of principal and interest payments or from
Liquidation Proceeds, including, but not limited to, any funds on deposit in the
Collection Account, shall be held by the Servicer for and on behalf of the
Trustee and shall be and remain the sole and exclusive property of the Trustee,
subject to the applicable provisions of this Agreement. The Servicer also agrees
that it shall not create, incur or subject any Mortgage File or any funds that
are deposited in the Collection Account or the Distribution Account, or any
funds that otherwise are or may become due or payable to the Trustee for the
benefit of the Certificateholders, to any claim, lien, security interest,
judgment, levy, writ of attachment or other encumbrance, or assert by legal
action or otherwise any claim or right of setoff against any Mortgage File or
any funds collected on, or in connection with, a Mortgage Loan, except, however,
that the Servicer shall be entitled to set off against and deduct from any such
funds any amounts that are properly due and payable to the Servicer under this
Agreement.
Section 3.21 Servicing Compensation. (a) As compensation for its
activities hereunder, the Servicer shall, with respect to each Mortgage Loan, be
entitled to retain from deposits to the Collection Account and from Liquidation
Proceeds, Insurance Proceeds and Condemnation Proceeds related to such Mortgage
Loan, the Servicing Fee with respect to each Mortgage Loan (less any portion of
such amounts retained by any Subservicer). In addition, the Servicer shall be
entitled to recover unpaid Servicing Fees out of related Late Collections and as
otherwise permitted in Section 3.11. The right to receive the Servicing Fee may
not be transferred in whole or in part except as provided in Section 10.07 or in
connection with the transfer of all of the Servicer's responsibilities and
obligations under this Agreement; provided, however, that the Servicer may pay
from the Servicing Fee any amounts due to a Subservicer pursuant to a
Subservicing Agreement entered into under Section 3.02.
(b) Additional servicing compensation in the form of Prepayment
Interest Excess, proceeds described in Section 3.17(g), assumption or
modification fees, late payment charges, NSF fees, reconveyance fees and other
similar fees and charges (other than Prepayment Premiums) shall be retained by
the Servicer only to the extent such fees or charges are received by the
Servicer. The Servicer shall also be entitled pursuant to Section 3.11(a)(iv) to
withdraw from the Collection Account, as additional servicing compensation,
interest or other income earned on deposits therein.
(c) Except as otherwise provided in this Agreement, the Servicer
shall be required to pay all expenses incurred by it in connection with its
servicing activities hereunder (including payment of premiums for any blanket
policy insuring against hazard losses pursuant to Section 3.13, servicing
compensation of the Subservicer to the extent not retained by it and the fees
and expenses of independent accountants and any agents appointed by the
Servicer), and shall not be entitled to reimbursement therefor except as
specifically provided in Section 3.11.
(d) Without limiting the generality of the foregoing, the Servicer
shall not be entitled to receive the Servicing Fee on any Charged Off Mortgage
Loans that are not discharged from the Trust for the period following the date
of such charge off, provided, however, that the Servicing Fee shall accrue on
such Mortgage Loans during such period, and the Servicing Fee shall be paid to
the Servicer if amounts due on such Mortgage Loan are collected.
Section 3.22 Annual Statement as to Compliance. The Servicer shall
deliver or cause to be delivered to the Depositor and the Trustee, not later
than March 15 of each calendar year beginning in 2007, an Officers' Certificate
(an "Annual Statement of Compliance") stating that (i) a review of the
activities of the Servicer during the preceding calendar year and of performance
under this Agreement has been made under such officers' supervision and (ii) to
the best of such officers' knowledge, based on such review, the Servicer has
fulfilled all of its obligations under this Agreement 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
officer and the nature and status thereof. The Servicer shall deliver a similar
Annual Statement of Compliance by any subservicer to which the Servicer has
delegated any servicing responsibilities with respect to the Mortgage Loans
(unless a Form 15 Suspension Notice shall have been filed with respect to the
Trust Fund and so long as the Trust Fund is subject to the Exchange Act
reporting requirements), to the Depositor and the Trustee as described above as
and when required with respect to the Servicer. Promptly after receipt of each
such Officer's Certificate, the Depositor shall review such Officer's
Certificate and, if applicable, consult with the Servicer as to the nature of
any defaults by the Servicer or any related Subservicer in the fulfillment of
any of the Servicer's or Subservicer's obligations. The obligations of the
Servicer or Subservicer under this Section apply to each Servicer and
Subservicer that serviced a Mortgage Loan during the applicable period, whether
or not the Servicer or Subservicer is acting as the Servicer or Subservicer, as
applicable, at the time such Officer's Certificate is required to be delivered.
Section 3.23 Assessments of Compliance and Attestation Reports.
Pursuant to Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of
Regulation AB, the Servicer shall deliver to the Depositor and the Trustee on or
before March 15 of each calendar year beginning in 2007, a report regarding the
Servicer's assessment of compliance (an "Assessment of Compliance") with the
Servicing Criteria during the preceding calendar year. As set forth in
Regulation AB, the Assessment of Compliance must contain the following:
(a) A statement by the Servicer of its responsibility for assessing
compliance with the Servicing Criteria applicable to the Servicer;
(b) A statement by the Servicer that it used the Servicing Criteria
attached as Exhibit R hereto, and which will also be attached to the Assessment
of Compliance, to assess compliance with the Servicing Criteria applicable to
the Servicer;
(c) An assessment by such officer of the Servicer's compliance with
the applicable Servicing Criteria for the period consisting of the preceding
calendar year, including disclosure of any material instance of noncompliance
with respect thereto during such period, which assessment shall be based on the
activities it performs with respect to asset-backed securities transactions
taken as a whole involving the Servicer, that are backed by the same asset type
as the Mortgage Loans;
(d) A statement that a registered public accounting firm has issued
an attestation report on the Servicer's Assessment of Compliance for the period
consisting of the preceding calendar year; and
(e) A statement as to which of the Servicing Criteria, if any, are
not applicable to the Servicer, which statement shall be based on the activities
it performs with respect to asset-backed securities transactions taken as a
whole involving the Servicer, that are backed by the same asset type as the
Mortgage Loans.
Such report at a minimum shall address each of the Servicing
Criteria specified on Exhibit R hereto which are indicated as applicable to the
Servicer.
On or before March 15 of each calendar year beginning in 2007, the
Servicer shall furnish to the Depositor and the Trustee a report (an
"Attestation Report") by a registered public accounting firm that attests to,
and reports on, the Assessment of Compliance made by the Company, as required by
Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122(b) of Regulation AB,
which Attestation Report must be made in accordance with standards for
attestation reports issued or adopted by the Public Company Accounting Oversight
Board.
Unless a Form 15 Suspension Notice shall have been filed with
respect to the Trust Fund and for so long as the Trust Fund is subject to the
Exchange Act reporting requirements, the Servicer shall cause any subservicer to
which the Servicer delegated any of its responsibilities with respect to the
Mortgage Loans determined by the Servicer to be "participating in the servicing
function" within the meaning of Item 1122 of Regulation AB, to deliver to the
Trustee and the Depositor an Assessment of Compliance and Attestation Report as
and when provided above.
Such Assessment of Compliance, as to any subservicer to which the
Servicer delegated any of its responsibilities with respect to the Mortgage
Loans, shall at a minimum address each of the Servicing Criteria specified on
Exhibit R hereto which are indicated as applicable to any "primary servicer" to
the extent they are applicable to such subservicer. Notwithstanding the
foregoing, as to any subcontractor, an Assessment of Compliance is not required
to be delivered unless it is required as part of a Form 10-K with respect to the
Trust Fund.
The Trustee shall also provide to the Depositor an Assessment of
Compliance and Attestation Report with respect to itself, as and when provided
above by March 15 each year, unless a Form 15 Suspension Notice shall have been
filed with respect to the Trust Fund, which shall at a minimum address each of
the Servicing Criteria specified on Exhibit R hereto which are indicated as
applicable to the "trustee".
Section 3.24 Trustee to Act as Servicer. (a) In the event that the
Servicer shall for any reason no longer be the Servicer hereunder (including by
reason of an Event of Default), the Trustee or its successor shall, thereupon
assume all of the rights and obligations of the Servicer hereunder arising
thereafter (except that the Trustee shall not be (i) liable for losses of the
predecessor Servicer pursuant to Section 3.10 or any acts or omissions of the
predecessor Servicer hereunder, (ii) obligated to make Advances if it is
prohibited from doing so by applicable law, (iii) obligated to effectuate
repurchases or substitutions of Mortgage Loans hereunder, including but not
limited to repurchases or substitutions pursuant to Section 2.03, (iv)
responsible for expenses of the Servicer pursuant to Section 2.03 or (v) deemed
to have made any representations and warranties of the Servicer hereunder). Any
such assumption shall be subject to Section 7.02.
(b) Every Subservicing Agreement entered into by the Servicer shall
contain a provision giving the successor Servicer the option to terminate such
agreement in the event a successor Servicer is appointed.
(c) If the Servicer shall for any reason no longer be the Servicer
(including by reason of any Event of Default), the Trustee (or any other
successor Servicer) may, at its option, succeed to any rights and obligations of
the Servicer under any Subservicing Agreement in accordance with the terms
thereof; provided, that the Trustee (or any other successor Servicer) shall not
incur any liability or have any obligations in its capacity as successor
Servicer under a Subservicing Agreement arising prior to the date of such
succession unless it expressly elects to succeed to the rights and obligations
of the Servicer thereunder; and the Servicer shall not thereby be relieved of
any liability or obligations under the Subservicing Agreement arising prior to
the date of such succession.
(d) The Servicer shall, upon request of the Trustee, but at the
expense of the Servicer, deliver to the assuming party all documents and records
relating to each Subservicing Agreement (if any) to which it is a party and the
Mortgage Loans then being serviced thereunder and an accounting of amounts
collected and held by it and otherwise use its best efforts to effect the
orderly and efficient transfer of such Subservicing Agreement to the assuming
party.
Section 3.25 Compensating Interest. The Servicer shall remit to the
Trustee on each Remittance Date an amount from its own funds equal to
Compensating Interest payable by the Servicer for such Remittance Date.
Section 3.26 Credit Reporting; Xxxxx-Xxxxx-Xxxxxx Act. (a) With
respect to each Mortgage Loan, the Servicer shall fully furnish, in accordance
with the Fair Credit Reporting Act and its implementing regulations, accurate
and complete information (e.g., favorable and unfavorable) on the related
Mortgagor credit files to the three national credit repositories, on a monthly
basis.
(b) Each party shall comply with all applicable 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 party incidental to it being a party to this Agreement, including,
maintaining adequate information security procedures to protect such nonpublic
personal information. Without limitation, the Servicer shall provide all privacy
notices required of the Servicer under the Privacy Laws.
Section 3.27 Excess Reserve Fund Account; Distribution Account. (a)
The Trustee shall establish and maintain the Excess Reserve Fund Account, on
behalf of the Class X Certificateholders, to receive any Basis Risk Payment and
to pay to the LIBOR Certificateholders and the Class M-5, Class M-6 and Class
M-7 Certificates any Basis Risk Carry Forward Amounts (prior to using any Net
Swap Receipts).
On each Distribution Date on which there exists a Basis Risk Carry
Forward Amount on any Class of LIBOR Certificates or the Class M-5, Class M-6,
or Class M-7 Certificates after application of any payments from the
Supplemental Interest Trust, the Trustee shall (1) withdraw from the
Distribution Account and deposit in the Excess Reserve Fund Account, as set
forth in Section 4.02(a)(iii)(H), the lesser of the Class X Distributable Amount
(to the extent remaining after the distributions specified in Sections
4.02(a)(iii)(A)-(G)) and 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 and the Class M-5, Class M-6 and Class
M-7 Certificates the applicable Basis Risk Carry Forward Amounts. Such payments
shall be allocated to those Classes based upon the amount of Basis Risk Carry
Forward Amount owed to each such Class and shall be paid in the priority set
forth in Section 4.02(a)(iii)(I). In the event that the Class Certificate
Balance of any Class of Certificates is reduced because of Applied Realized Loss
Amounts, the applicable Certificateholders will not be entitled to receive Basis
Risk Carry Forward Amounts on the written down amounts on such Distribution Date
or any future Distribution Dates (except to the extent such Class Certificate
Balance is increased as a result of any Subsequent Recoveries), even if funds
are otherwise available for distribution.
The Trustee shall account for the Excess Reserve Fund Account as an
asset of a grantor trust under subpart E, Part I of subchapter J of the Code and
not as an asset of any Trust REMIC created pursuant to this Agreement. The
beneficial owners of the Excess Reserve Fund Account are the Class X
Certificateholders. For all federal income tax purposes, amounts transferred by
the Upper-Tier REMIC to the Excess Reserve Fund Account shall be treated as
first distributed by the Trustee to the Class X Certificateholders in respect of
the Class UT-X Interest, and then contributed by the Class X Certificateholders
to the Excess Reserve Fund Account.
Any Basis Risk Carry Forward Amounts distributed by the Trustee to
the LIBOR Certificateholders and the Class M-5, Class M-6 and Class M-7
Certificates shall be accounted for by the Trustee as amounts paid first to the
Holders of the Class X Certificates and then to the respective Class or Classes
of LIBOR Certificates and the Class M-5, Class M-6 and Class M-7 Certificates.
In addition, the Trustee shall account for the rights of Holders of each Class
of LIBOR Certificates and the Class M-5, Class M-6 and Class M-7 Certificates to
receive payments of Basis Risk Carry Forward Amounts as rights in a separate
limited recourse interest rate cap contract written by the Class X
Certificateholders in favor of Holders of each such Class.
Notwithstanding any provision contained in this Agreement, the
Trustee shall not be required to make any payments from the Excess Reserve Fund
Account except as expressly set forth in this Section 3.27(a).
(b) The Trustee shall establish and maintain the Distribution
Account on behalf of the Certificateholders. The Trustee shall, promptly upon
receipt on the Business Day received, deposit in the Distribution Account and
retain therein the following:
(i) the aggregate amount remitted by the Servicer to the Trustee
pursuant to Section 3.11;
(ii) any amount deposited by the Servicer pursuant to Section
3.12(b) in connection with any losses on Permitted Investments; and
(iii) any other amounts deposited hereunder which are required to be
deposited in the Distribution Account.
In the event that the Servicer shall remit any amount not required
to be remitted, the Servicer may at any time direct the Trustee in writing to
withdraw such amount from the Distribution Account, any provision herein to the
contrary notwithstanding. Such direction may be accomplished by delivering
notice to the Trustee which describes the amounts deposited in error in the
Distribution Account. All funds deposited in the Distribution Account shall be
held by the Trustee in trust for the Certificateholders until disbursed in
accordance with this Agreement or withdrawn in accordance with Section 4.02.
(c) In order to comply with laws, rules and regulations applicable
to banking institutions, including those relating to the funding of terrorist
activities and money laundering, the Trustee is required to obtain, verify and
record certain information relating to individuals and entities which maintain a
business relationship with the Trustee. Accordingly, each of the parties agrees
to provide to the Trustee upon its request from time to time such party's
complete name, address, tax identification number and such other identifying
information, together with copies of such party's constituting documentation,
securities disclosure documentation and such other identifying documentation as
may be available for such party.
Section 3.28 Optional Purchase of Delinquent Mortgage Loans. The
Depositor (or its assignee), in its sole discretion, shall have the option, but
shall not be obligated, to purchase any such 90+ Day Delinquent Mortgage Loan
from the Trust Fund. The purchase price for any such Mortgage Loan shall be 100%
of the unpaid principal balance of such Mortgage Loan plus accrued and unpaid
interest on the related Mortgage Loan at the applicable Mortgage Interest Rate,
plus the amount of any unreimbursed Servicing Advances made by the Servicer.
Upon receipt of such purchase price, the Servicer shall provide to the Trustee a
Request for Release and the Trustee shall promptly release to the Depositor the
Mortgage File relating to the Mortgage Loan being repurchased.
ARTICLE IV
DISTRIBUTIONS AND
ADVANCES BY THE SERVICER
Section 4.01 Advances. (a) The amount of P&I Advances to be made by
the Servicer for any Remittance Date shall equal, subject to Section 4.01(c),
the sum of (i) the aggregate amount of Scheduled Payments (with each interest
portion thereof net of the related Servicing Fee), due during the Due Period
immediately preceding such Remittance Date in respect of the Mortgage Loans,
which Scheduled Payments were not received as of the close of business on the
related Determination Date, plus (ii) with respect to each REO Property, which
REO Property was acquired during or prior to the related Prepayment Period and
as to which such REO Property an REO Disposition did not occur during the
related Prepayment Period, an amount equal to the excess, if any, of the
Scheduled Payments (with REO Imputed Interest) that would have been due on the
related Due Date in respect of the related Mortgage Loan, over the net income
from such REO Property transferred to the Collection Account for distribution on
such Remittance Date. The Servicer shall not be required to make P&I Advances
with respect to Relief Act Interest Shortfalls or resulting from bankruptcy
proceedings of the Mortgagor.
(b) On each Remittance Date, the Servicer shall remit in immediately
available funds to the Trustee an amount equal to the aggregate amount of P&I
Advances, if any, to be made in respect of the Mortgage Loans and REO Properties
for the related Remittance Date either (i) from its own funds or (ii) from the
Collection Account, to the extent of funds held therein for future distribution
(in which case, it will cause to be made an appropriate entry in the records of
the Collection Account that Amounts Held for Future Distribution have been, as
permitted by this Section 4.01, used by the 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 the Servicer with respect to the
Mortgage Loans and REO Properties. Any Amounts Held for Future Distribution and
so used shall be appropriately reflected in the Servicer's records and replaced
by the Servicer by deposit in the Collection Account on or before any future
Remittance Date to the extent required.
(c) The obligation of the Servicer to make such P&I Advances is
mandatory, notwithstanding any other provision of this Agreement but subject to
(d) below, and, with respect to any Mortgage Loan or REO Property, shall
continue through the time at which the related Mortgage Loan becomes 180 days
delinquent.
(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 the 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 the Servicer delivered to the Trustee. In addition the
Servicer shall not be required to advance any Relief Act Interest Shortfalls.
(e) Except as otherwise provided herein, the Servicer shall be
entitled to reimbursement pursuant to Section 3.11 for Advances from recoveries
from the related Mortgagor or from all Liquidation Proceeds and other payments
or recoveries (including Insurance Proceeds and Condemnation Proceeds) with
respect to the related Mortgage Loan.
Section 4.02 Priorities of Distribution. (a) On each Distribution
Date, the Trustee shall make the disbursements and transfers from amounts then
on deposit in the Distribution Account in the following order of priority and to
the extent of the Available Funds remaining:
(i) to the Supplemental Interest Trust and to the holders of each
Class of Offered 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 owed to the
Swap Provider, if any;
(B) from any remaining Interest Remittance Amount, to the
Class A Certificates, on a pro rata basis based on their respective
entitlements, the Accrued Certificate Interest Distribution Amount
for such Classes and Unpaid Interest Amount for such Classes and
such Distribution Date;
(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; and
(I) from any remaining Interest Remittance Amounts, to the
Class M-7 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(ii) (A) on each Distribution Date (a) before the Stepdown Date or
(b) with respect to which a Trigger Event is in effect, to the holders of
the related Class or Classes of Offered Certificates then entitled to
distributions of principal as set forth below, from Available Funds
remaining after making distributions pursuant to clause (i) above, an
amount equal to the Principal Distribution Amount in the following order
of priority:
(1) to the Class A Certificates, allocated among those classes
as described below until their respective Class Certificate Balances
are reduced to zero; and
(2) sequentially, to the Class X-0, Xxxxx X-0, Class M-3,
Class M-4, Class M-5, Class M-6 and Class M-7 Certificates, in that
order, until the respective Class Certificate Balances thereof are
reduced to zero;
(B) on each Distribution Date (a) on and after the Stepdown
Date and (b) as long as a Trigger Event is not in effect, to the
holders of the related Class or Classes of Offered Certificates then
entitled to distribution of principal, from Available Funds
remaining after making distributions pursuant to clause (i) above,
an amount equal to the Principal Distribution Amount in the
following amounts and order of priority:
(1) to the Class A Certificates, the lesser of (x) the
Principal Distribution Amount and (y) the Class A Principal
Distribution Amount, allocated among those classes as
described below, until their respective Class Certificate
Balances are reduced to zero;
(2) to the Class M-1 Certificates, 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, until the Class Certificate Balance thereof has been
reduced to zero;
(3) to the Class M-2 Certificates, 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, until the Class Certificate Balance thereof has been
reduced to zero;
(4) to the Class M-3 Certificates, 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, until the Class Certificate Balance thereof has been
reduced to zero;
(5) to the Class M-4 Certificates, 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, until the Class Certificate Balance thereof has been
reduced to zero;
(6) to the Class M-5 Certificates, 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, until the Class Certificate Balance thereof has been
reduced to zero;
(7) to the Class M-6 Certificates, 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-5 Principal Distribution
Amount, until the Class Certificate Balance thereof has been
reduced to zero; and
(8) to the Class M-7 Certificates, 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, until the Class Certificate Balance thereof has been
reduced to zero;
(iii) any amount remaining after the distributions in clauses (i)
and (ii) above, plus as specifically indicated below, from amounts on
deposit in the Excess Reserve Account, shall be distributed in the
following order of priority:
(A) to the holders of the Class M-1 Certificates, any Unpaid
Interest Amount for such Class;
(B) to the holders of the Class M-2 Certificates, any Unpaid
Interest Amount for such Class;
(C) to the holders of the Class M-3 Certificates, any Unpaid
Interest Amount for such Class;
(D) to the holders of the Class M-4 Certificates, any Unpaid
Interest Amount for such Class;
(E) to the holders of the Class M-5 Certificates, any Unpaid
Interest Amount for such Class;
(F) to the holders of the Class M-6 Certificates, any Unpaid
Interest Amount for such Class;
(G) to the holders of the Class M-7 Certificates, any Unpaid
Interest Amount for such Class;
(H) to the Excess Reserve Fund Account, the amount of any
Basis Risk Payment for such Distribution Date, to the extent not
covered, in the case of the LIBOR Certificates, by amounts available
in the Supplemental Interest Trust;
(I) 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 Offered Certificates
(other than the Class A-2 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;
(J) to the Supplemental Interest Trust, the amount of any
Defaulted Swap Termination Payment to the Swap Provider;
(K) to the holders of the Class X Certificates, the remainder
of the Class X Distributable Amount not distributed pursuant to
Sections 4.02(a)(iii)(A)-(J); and
(L) to the holders of the Class R Certificates, any remaining
amount.
Notwithstanding the foregoing, if the Stepdown Date is the date on
which the aggregate Class Certificate Balance of the Class A Certificates is
reduced to zero, any Principal Distribution Amount remaining after distribution
thereof to the Class A Certificates will be included as part of the
distributions pursuant to clause (ii)(B) above.
Principal distributions allocated to the Class A Certificates are
required to be distributed sequentially as follows:
1. concurrently on a pro rata basis (based on the aggregate Class
Certificate Balances of the Class A-1 Sequential Certificates, on the one hand,
and the Class A-1C certificates, on the other hand) to :
(a) the Class A-1A and Class A-1B Certificates, sequentially,
until their respective Class Certificate Balances have been reduced to
zero, and
(b) the Class A-1C Certificates, until their Class Certificate
Balance has been reduced to zero;
2. to the Class A-2 Certificates, until their Class Certificate
Balance has been reduced to zero;
3. to the Class A-3 Certificates, until their Class Certificate
Balance has been reduced to zero;
Notwithstanding the reduction of the aggregate Class Certificate
Balance of the Class M and Class X Certificates to zero, any principal
distributions allocated to the Class A Certificates will be allocated on a pro
rata basis by aggregate Class Certificate Balance to the Class A Certificates,
and the principal distributions allocated to the Class A-1 Sequential
Certificates are required to continue to be distributed sequentially, first to
the Class A-1A Certificates, until their Class Certificate Balance has been
reduced to zero, and second to the Class A-1B Certificates, until their Class
Certificate Balance has been reduced to zero.
If on any Distribution Date, as a result of the foregoing allocation
rules, allocation of payments from the Supplemental Interest Trust to pay
principal as described under Section 4.06, the Class A Certificates do not
receive the related Accrued Certificate Interest Distribution Amount or the
related Unpaid Interest Amount, if any, then that unpaid amount will be
recoverable by the holders of that Class, with interest thereon, on future
Distribution Dates, as an Unpaid Interest Amount, subject to the priorities
described above. In the event the Class Certificate Balance of any Class of
Certificates has been reduced to zero, that Class of Certificates shall no
longer be entitled to receive any related unpaid Basis Risk Carry Forward
Amounts except to the extent the Class Certificate Balance is increased as a
result of any Subsequent Recovery.
(b) On each Distribution Date, all amounts representing Prepayment
Premiums from the Mortgage Loans received during the related Prepayment Period
shall be distributed by the Trustee to the holders of the Class P Certificates.
(c) On any Distribution Date, any Relief Act Interest Shortfalls and
Net Prepayment Interest Shortfalls for such Distribution Date will be allocated
pro rata, as a reduction of the Accrued Certificate Interest Distribution
Amounts for the Offered Certificates, based on the amount of interest to which
such Classes would otherwise be entitled on such Distribution Date.
Section 4.03 Monthly Statements to Certificateholders. (a) Not later
than each Distribution Date, the Trustee shall make available to each
Certificateholder, the Servicer, the Depositor and each Rating Agency a
statement, based substantially on information provided by the Servicer, setting
forth with respect to the related distribution:
(i) the amount of Available Funds allocable to principal, separately
identifying the aggregate amount of any Principal Prepayments and
Liquidation Proceeds included therein;
(ii) the amount of Available Funds allocable to interest, any Unpaid
Interest Amounts included in such distribution and any remaining Unpaid
Interest Amounts after giving effect to such distribution, any Basis Risk
Carry Forward Amount for such Distribution Date and the amount of all
Basis Risk Carry Forward Amount covered by withdrawals from the Excess
Reserve Fund Account on such Distribution Date;
(iii) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be distributable to
such Holders if there were sufficient funds available therefor, the amount
of the shortfall and the allocation 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;
(iv) the Class Certificate Balance of each Class of Certificates
after giving effect to the distribution of principal on such Distribution
Date;
(v) the Pool Stated Principal Balance for the following Distribution
Date;
(vi) the amount of the expenses and fees paid to or retained by the
Servicer or paid to or retained by the Trustee with respect to such
Distribution Date;
(vii) the Pass-Through Rate for each such Class of Certificates with
respect to such Distribution Date;
(viii) the amount of Advances included in the distribution on such
Distribution Date and the aggregate amount of Advances reported by the
Servicer (and the Trustee as successor servicer and any other servicer, if
applicable) as outstanding (if reported by the Servicer) as of the close
of business on the Determination Date immediately preceding such
Distribution Date;
(ix) the number and aggregate outstanding principal balances of
Mortgage Loans (1) as to which the Scheduled Payment is Delinquent 31 to
60 days, 61 to 90 days, 91 to 120 days, 121 to 150 days, 151 to 180 days
and 180+ days, (2) that have become REO Property, (3) that are in
foreclosure and (4) that are in bankruptcy, in each case as of the close
of business on the last Business Day of the immediately preceding month;
(x) for each of the preceding 12 calendar months, or all calendar
months since the related Cut-off Date, whichever is less, the aggregate
dollar amount of the Scheduled Payments (A) due on all Outstanding
Mortgage Loans on each of the Due Dates in each such month and (B)
Delinquent 60 days or more on each of the Due Dates in each such month;
(xi) with respect to all Mortgage Loans that became REO Properties
during the preceding calendar month, the aggregate number of such Mortgage
Loans and the aggregate Stated Principal Balance of such Mortgage Loans as
of the close of business on the last Business Day of the immediately
preceding month;
(xii) the total number and principal balance of any REO Properties
(and market value, if available) as of the close of business on the last
Business Day of the immediately preceding month;
(xiii) whether a Trigger Event has occurred and is continuing
(including the separate components of the calculation and the aggregate
outstanding balance of all 60+ Day Delinquent Mortgage Loans);
(xiv) the amount on deposit in the Excess Reserve Fund Account
(after giving effect to distributions on such Distribution Date);
(xv) in the aggregate and for each Class of Certificates, the
aggregate amount of Applied Realized Loss Amounts incurred during the
preceding calendar month and aggregate Applied Realized Loss Amounts
through such Distribution Date;
(xvi) the amount of any Net Monthly Excess Cash Flow on such
Distribution Date and the allocation thereof to the Certificateholders
with respect to Applied Realized Loss Amounts and Unpaid Interest Amounts;
(xvii) the Overcollateralized Amount and Specified
Overcollateralized Amount;
(xviii) Prepayment Premiums collected by or paid by the Servicer;
(xix) the Cumulative Loss Percentage;
(xx) the amount distributed on the Class X Certificates;
(xxi) the amount of any Subsequent Recoveries for such Distribution
Date;
(xxii) the Record Date for such Distribution Date;
(xxiii) each Mortgage Loan that has been released to the Class X-1
Certificateholder pursuant to Section 3.15(b);
(xxiv) one-month, three-month and twelve-month CPR;
(xxv) the cumulative amount of Realized Losses on the Mortgage
Loans; and
(xxvi) the amount of any Yield Maintenance Agreement Payment and any
Net Swap Receipts or Net Swap Payments for such Distribution Date.
(b) The Trustee's responsibility for providing the above statement
to the Certificateholders, each Rating Agency, the Servicer and the Depositor is
limited to the availability, timeliness and accuracy of the information derived
from the Servicer. The Trustee will provide the above statement via the
Trustee's internet website. The Trustee's website will initially be located at
xxxxx://xxx.xxx.xx.xxx/xxxx and assistance in using the website can be obtained
by calling the Trustee's investor relations desk at 0-000-000-0000. A paper copy
of the above statement will also be made available upon request.
(c) Upon request, within a reasonable period of time after the end
of each calendar year, the Trustee shall cause to be furnished to each Person
who at any time during the calendar year was a Certificateholder, a statement
containing the information set forth in clauses (a)(i) and (a)(ii) of this
Section 4.03 aggregated for such calendar year or applicable portion thereof
during which such Person was a Certificateholder. Such obligation of the Trustee
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Trustee pursuant to any
requirements of the Code as from time to time in effect.
(d) Not later than the Reporting Date, the Servicer shall furnish to
the Trustee a monthly remittance advice statement (in a format mutually agreed
upon by the Servicer and the Trustee) containing such information as shall be
reasonably requested by the Trustee to provide the reports required by Section
4.03(a) as to the accompanying remittance and the period ending on the close of
business on the last Business Day of the immediately preceding month (the
"Servicer Remittance Report").
The Servicer shall furnish to the Trustee an individual loan
accounting report, as of the last Business Day of each month, to document
Mortgage Loan payment activity on an individual Mortgage Loan basis. With
respect to each month, the corresponding individual loan accounting report (in
electronic format) shall be received by the Trustee no later than the Reporting
Date, which report shall contain the following:
(i) with respect to each Scheduled Payment, the amount of such
remittance allocable to principal (including a separate breakdown of any
Principal Prepayment, including the date of such prepayment, and any
Prepayment Premiums, along with a detailed report of interest on Principal
Prepayment amounts remitted in accordance with Section 3.25);
(ii) with respect to each Scheduled Payment, the amount of such
remittance allocable to interest;
(iii) the amount of servicing compensation received by the 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 the Servicer during
the prior distribution period pursuant to Section 3.11;
(vi) the number and aggregate outstanding principal balances of
Mortgage Loans (a) delinquent (1) 31 to 60 days, (2) 61 to 90 days, (3) 91
to 120 days, (4) 121 to 150 days, (5) 151 to 180 days and (6) 181 days or
more; (b) as to which foreclosure has commenced; and (c) as to which REO
Property has been acquired;
(vii) each Mortgage Loan which has been altered, modified or varied
during such month, and the reason for such modification (i.e., extension
of maturity date, Mortgage Interest Rate);
(viii) with respect to each Liquidated Mortgage Loan, the amount of
any Realized Losses for such Mortgage Loan;
(ix) each Mortgage Loan that has been released to the Class X-1
Certificateholder pursuant to Section 3.15(b); and
(x) any other information reasonably required by the Trustee to
enable it to prepare the Monthly Statement referred to in Section 4.03(a).
For all purposes of this Agreement, with respect to any Mortgage
Loan, delinquencies shall be determined and reported based on the "OTS"
methodology for determining delinquencies on mortgage loans similar to the
Mortgage Loans as described in the definition of "Delinquent."
Section 4.04 Certain Matters Relating to the Determination of LIBOR.
LIBOR shall be calculated by the Trustee in accordance with the definition of
"LIBOR." Until all of the LIBOR Certificates are paid in full, the Trustee will
at all times retain at least four Reference Banks for the purpose of determining
LIBOR with respect to each LIBOR Determination Date. The Trustee initially shall
designate the Reference Banks (after consultation with the Depositor). Each
"Reference Bank" shall be a leading bank engaged in transactions in Eurodollar
deposits in the international Eurocurrency market, shall not control, be
controlled by, or be under common control with, the Trustee and shall have an
established place of business in London. If any such Reference Bank should be
unwilling or unable to act as such or if the Trustee should terminate its
appointment as Reference Bank, the Trustee shall promptly appoint or cause to be
appointed another Reference Bank (after consultation with the Depositor). The
Trustee shall have no liability or responsibility to any Person for (i) the
selection of any Reference Bank for purposes of determining LIBOR or (ii) any
inability to retain at least four Reference Banks which is caused by
circumstances beyond its reasonable control.
The Pass-Through Rate for each Class of LIBOR Certificates for each
Interest Accrual Period shall be determined by the Trustee on each LIBOR
Determination Date so long as the LIBOR Certificates are Outstanding on the
basis of LIBOR and the respective formulae appearing in footnotes corresponding
to the LIBOR Certificates in the table relating to the Certificates in the
Preliminary Statement. The Trustee 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 Trustee shall (in the
absence of manifest error) be final, conclusive and binding upon each Holder of
a Certificate and the Trustee.
Section 4.05 Allocation of Applied Realized Loss Amounts. Any
Applied Realized Loss Amounts will be allocated 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 Offered Certificates, their Class Principal 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
Trustee shall establish and maintain in its name, a separate non-interest
bearing trust account (the "Supplemental Interest Trust Account"), which will be
a separate account, for the benefit of the holders of the Principal Certificates
as a part of the Trust Fund (the "Supplemental Interest Trust"). The
Supplemental Interest Trust Account 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 Trustee held pursuant to this Agreement.
On any Distribution Date, Swap Termination Payments, Net Swap
Payments owed to the Swap Provider and Net Swap Receipts, if any, and Yield
Maintenance Payments, if any, for that Distribution Date will be deposited into
the Supplemental Interest Trust Account. Funds in the Supplemental Interest
Trust Account 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 and, if applicable, any Unpaid Interest
Amounts as described in Section 4.02(a)(i), to the extent unpaid from
other Available Funds;
(iii) to the Offered Certificateholders, to pay principal as
described in Section 4.02(a)(ii), but only to the extent necessary to
restore the Overcollateralized Amount at the Specified Overcollateralized
Amount as a result of current or prior Realized Losses not yet 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 Account shall be distributed pursuant to the
priorities set forth in this Section 4.06.
The Trustee 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 Account first, by the Holder of the Class X
Certificates (in respect of the Class UT-IO Interest and, if applicable, Class
UT-X Interest) and second, other than any Defaulted Swap Termination Payment, by
the Holders of the applicable Class or Classes of Principal Certificates (in
respect of Class IO Shortfalls), as and to the extent provided in Section 8.13.
Any Basis Risk Carry Forward Amounts distributed to the LIBOR
Certificateholders from the Supplemental Interest Trust Account shall be
accounted for by the Trustee, for federal income tax purposes, as amounts paid
first to the Holders of the Class X Certificates and then to the respective
Class or Classes of LIBOR Certificates. In addition, the Trustee shall account
for the rights of Holders of each Class of LIBOR Certificates to receive
payments of Basis Risk Carry Forward Amounts from the Supplemental Interest
Trust and 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 the 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 either of the Swap Provider or the
Yield Maintenance Provider to perform any of its obligations under the Interest
Rate Swap Agreement or the Yield Maintenance Agreement, as applicable, the
breach by the Swap Provider or the Yield Maintenance Provider of any of its
representations and warranties made pursuant to the Interest Rate Swap Agreement
or the Yield Maintenance Agreement, as applicable, or the termination of the
Interest Rate Swap Agreement or Yield Maintenance Agreement, as applicable, of
which the Trustee has received written notice or has actual knowledge, the
Trustee shall send any notices and make any demands, on behalf of the Trust, as
are required under the Interest Rate Swap Agreement or Yield Maintenance
Agreement, as applicable. The Trustee shall cause any replacement swap provider
or cap provider to provide a copy of the related replacement interest rate swap
agreement or interest rate cap agreement, as applicable, to the Trustee 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 Trustee to register the Class X,
Class X-1, Class R and Class P Certificates in the name of the Depositor or its
designee. On a date as to which the Depositor notifies the Trustee, the
Depositor hereby directs the Trustee to transfer the Class X and Class P
Certificates in the name of such Person or Persons as the Depositor shall
request, and to deliver such Class X Certificates and Class P Certificates to
such Person or Persons as the Depositor shall request.
Subject to Section 9.02 respecting the final distribution on the
Certificates, on each Distribution Date the Trustee 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 Trustee or (y),
in the event that no wire instructions are provided to the Trustee, 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 Trustee 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 Trustee shall bind
the Trustee, 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 Trustee 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 Trustee shall authenticate the Certificates to be issued
at the direction of the Depositor or any Affiliate thereof.
The Depositor shall provide, or cause to be provided, to the Trustee
on a continuous basis, an adequate inventory of Certificates to facilitate
transfers.
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates. (a) The Trustee 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
Trustee 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 Trustee 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 Trustee. Whenever
any Certificates are so surrendered for exchange, the Trustee 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 Trustee duly executed by the
Holder thereof or his attorney duly authorized in writing. In the event the
Depositor or its Affiliate transfers the Class X Certificates, or a portion
thereof, to another Affiliate, it shall notify the Trustee in writing of the
affiliated status of the transferee. The Trustee 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 Trustee in
accordance with the Trustee'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 the transfer of a Private Certificate to the Depositor or an
Affiliate of the Depositor, 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 Trustee in writing the facts surrounding the
transfer in substantially the form set forth in Exhibit H (the "Transferor
Certificate") and either (i) there shall be delivered to the Trustee a letter in
substantially the form of Exhibit I-1 (the "Rule 144A Letter") or Exhibit I-2
(the "Non-Rule 144A Investment Letter") or (ii) in the case of the Class X
Certificates or Class X-1 Certificates, there shall be delivered to the Trustee
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. 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. The Trustee and the 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 Trustee and
the Depositor and the 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 the transfer of a Private Certificate to the
Depositor or an affiliate of the Depositor, no transfer of an ERISA-Restricted
Certificate shall be made unless the Trustee shall have received either (i) a
representation from the transferee of such Certificate acceptable to and in form
and substance satisfactory to the Trustee (in the event such Certificate is a
Private Certificate or a Residual Certificate, such requirement is satisfied
only by the Trustee's receipt of a representation letter from the transferee
substantially in the form of Exhibit I-1, Exhibit I-2 or Exhibit G (in the case
of a Residual Certificate)), to the effect that either (A) such transferee is
not an employee benefit plan subject to Section 406 of ERISA, a plan or
arrangement 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 to effect
such transfer or (B) in the case of an ERISA-Restricted Certificate other than a
Residual Certificate or a Class P Certificate, 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 (ii) 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 an employee benefit plan
subject to Title I of ERISA, 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 Trustee, which Opinion of
Counsel shall not be an expense of the Trustee, the Depositor, the Servicer or
the Trust Fund, addressed to the Trustee, to the effect that the purchase and
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 Depositor or
the Servicer 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 Class P Certificate,
Class X Certificate, Class X-1 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 Trustee
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 to or on
behalf of an employee benefit plan subject to ERISA, the Code or Similar Law
without the delivery to the Trustee of a representation letter or an Opinion of
Counsel satisfactory to the Trustee as described above shall be void and of no
effect and (b) any purported transfer of a Residual Certificate to a transferee
that does not make the representation in clause (i)(A) above shall be void and
of no effect.
Neither the Class R Certificates nor the Class P Certificates may
not be sold to any employee benefit plan subject to Title I of ERISA, any plan
or arrangement 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 Trustee 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 Trustee 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 Trustee of any change or impending change in its status as a
Permitted Transferee;
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the Trustee
shall not register the Transfer of any Residual Certificate unless, in
addition to the certificates required to be delivered to the Trustee under
subparagraph (b) above, the Trustee 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 G;
(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 Trustee 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 Trustee 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 Trustee shall be paid and
delivered by the Trustee 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 Trustee, 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 Trustee of an Opinion of Counsel, which Opinion
of Counsel shall not be an expense of the Trust Fund, the Trustee or the
Servicer, 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 Trustee,
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
Trustee 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 Trustee 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 Trustee 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 Trustee in
writing that the Depository is no longer willing or able to properly discharge
its responsibilities as Depository, and (ii) the Trustee 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 Trustee 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 Trustee of the related Class of Certificates by the Depository,
accompanied by the instructions from the Depository for registration, the
Trustee shall issue the Definitive Certificates. None of the Servicer, the
Depositor or the Trustee 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 Trustee 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 Trustee, to the extent applicable with
respect to such Definitive Certificates and the Trustee shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder;
provided, that the Trustee 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 Trustee and the
Certificate Registrar, 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 Certificate Registrar in accordance with its customary
practice. No service charge shall be made for any registration of transfer or
exchange of Private Certificates, but the Trustee or the Certificate Registrar
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 Trustee, or the Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Certificate and (b) there is delivered to the Depositor, the Servicer, and the
Trustee such security or indemnity as may be required by them to hold each of
them harmless, then, in the absence of notice to the Trustee that such
Certificate has been acquired by a bona fide purchaser, the Trustee 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 Trustee 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 Trustee) 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 Servicer, the Trustee, the
Depositor, and any agent of the Servicer, the Depositor 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 Servicer, the
Trustee, the Depositor or any agent of the 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 Trustee, (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 or the Servicer shall request such information in writing from the
Trustee, then the Trustee shall, within ten Business Days after the receipt of
such request, provide the Depositor, the Servicer or such Certificateholders at
such recipients' expense the most recent list of the Certificateholders of such
Trust Fund held by the Trustee, if any. The Depositor and every
Certificateholder, by receiving and holding a Certificate, agree that the
Trustee 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 Trustee 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 Trustee initially designates the
offices of its agent, for such purposes, located at DB Services Tennessee, 000
Xxxxxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx 00000-0000, Attention: Transfer Unit.
The Trustee will 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 SERVICER
Section 6.01 Respective Liabilities of the Depositor and the
Servicer. The Depositor and the Servicer 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 the
Servicer. The Depositor and the Servicer will each keep in full effect its
existence, rights and franchises as a corporation, national banking association
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 or limited
partnership, 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.
Any Person into which the Depositor or the Servicer may be merged or
consolidated, or any Person resulting from any merger or consolidation to which
the Depositor or the Servicer shall be a party, or any Person succeeding to the
business of the Depositor or the Servicer, shall be the successor of the
Depositor or the 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 the Servicer shall be qualified to sell
mortgage loans to, and to service mortgage loans on behalf of, Xxxxxx Xxx or
Xxxxxxx 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 Offered Certificates.
Section 6.03 Limitation on Liability of the Depositor, the Servicer
and Others. Neither the Depositor, the Servicer nor any of their respective
directors, officers, employees or agents shall be under any liability to the
Trust Fund 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
Depositor, the Servicer or any such Person against any breach of representations
or warranties made by it herein or protect the Depositor, the Servicer 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, the Servicer and any
director, officer, employee or agent of the Depositor and the Servicer may rely
in good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. The Depositor,
the Servicer and any director, officer, employee, Affiliate or agent of the
Depositor and the 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 the 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 the
Servicer may in its discretion undertake any such action (or direct the Trustee
to undertake such actions pursuant to Section 2.08 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
Servicer shall be entitled to be reimbursed therefor out of the Collection
Account.
Section 6.04 Limitation on Resignation of the Servicer. (a) The
Servicer shall not assign this Agreement or resign from the obligations and
duties hereby imposed on it except (i) by mutual consent of the Servicer, the
Depositor and the Trustee or (ii) upon the determination that its duties
hereunder are no longer permissible under applicable law and such incapacity
cannot be cured by the Servicer. Any such determination permitting the
resignation of the Servicer under clause (ii) above shall be evidenced by an
Opinion of Counsel (which Opinion of Counsel shall not be an expense of the
Trustee or the Trust Fund) to such effect delivered to the Depositor and the
Trustee which Opinion of Counsel shall be in form and substance acceptable to
the Depositor and the Trustee. No such resignation shall become effective until
a successor shall have assumed the Servicer's responsibilities and obligations
hereunder.
(b) Notwithstanding anything to the contrary herein, the Servicer
may pledge or assign as collateral all its rights, title and interest under this
Agreement to a lender. No such pledge shall reduce or otherwise affect the
Servicer's obligations under this Agreement.
Section 6.05 Additional Indemnification by the Servicer; Third Party
Claims. (a) The Servicer shall indemnify the Depositor (and any Affiliate,
director, officer, employee or agent of the Depositor) 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 (i) any breach by the Servicer of its representations and
warranties referred to in Section 2.03(a), (ii) any error in any tax or
information return prepared by the Servicer, or (iii) the failure of the
Servicer to perform its duties and service the Mortgage Loans in compliance with
the terms of this Agreement. The Servicer immediately shall notify the Depositor
and the Trustee in writing 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 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, or the Trustee in respect of such claim. This
indemnity shall survive the termination of this Agreement or the earlier
resignation or removal of the Servicer.
(b) Notwithstanding anything to the contrary contained in this
Agreement, the Servicer shall indemnify the Depositor (and any Affiliate,
director, officer, employee or agent of the Depositor) and 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 the Servicer or any Subservicer engaged by such Servicer or
any Subcontractor utilized by the 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 6.02(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 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
Servicer.
ARTICLE VII
DEFAULT
Section 7.01 Events of Default. "Event of Default," wherever used
herein, means any one of the following events:
(a) any failure by the Servicer to remit to the Trustee 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 the
Servicer by the Depositor, or by the Trustee, or to the Servicer, the Depositor
and the Trustee by Certificateholders entitled to at least 25% of the Voting
Rights; or
(b) any failure on the part of the Servicer duly to observe or
perform in any material respect any other of the covenants or agreements on the
part of the Servicer set forth in this Agreement, which continues unremedied for
a period of thirty days (except that such number of days shall be five in the
case of a failure to observe or perform any of the obligations set forth in
Sections 3.22 or 3.23 and a failure to deliver the certification pursuant to
Section 8.12(c)) 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 the
Servicer by the Depositor or by the Trustee, or to the Servicer, the Depositor
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 the Servicer; provided, however, that (except with respect to the
parenthetical above) in the case of a failure or breach that cannot be cured
within 30 days after notice or actual knowledge by the Servicer, the cure period
may be extended for an additional 30 days upon delivery by the Servicer to the
Trustee of a certificate to the effect that the Servicer believes in good faith
that the failure or breach can be cured within such additional time period and
the 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 the Servicer and
such decree or order shall have remained in force undischarged or unstayed for a
period of sixty days; or
(d) the 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
the Servicer or of or relating to all or substantially all of its property; or
(e) the 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 the 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) a breach of any representation and warranty of the Servicer
referred to in Section 2.03(a), which materially and adversely affects the
interests of the Certificateholders and which continues unremedied for a period
of thirty days after the date upon which written notice of such breach is given
to the Servicer by the Trustee or by the Depositor, or to the Servicer, the
Trustee and the Depositor by Certificateholders entitled to at least 25% of the
Voting Rights in the Certificates; or
(h) if a Servicer Cumulative Loss Trigger occurs; or
(i) if a Servicer Delinquency Trigger occurs; or
(j) Xxxxx'x reduces its servicer rating to "SQ4" or lower or
Standard & Poor's reduces its servicer ratings to "below average" or lower.
If an Event of Default described in clauses (a) through (j) 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 Trustee may, or at the
direction of Certificateholders entitled to a majority of the Voting Rights the
Trustee shall, by notice in writing to the Servicer (with a copy to each Rating
Agency), terminate all of the rights and obligations of the 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 Trustee
shall not be required to give written notice to the Servicer of the occurrence
of an Event of Default described in clauses (b) through (j) of this Section 7.01
unless and until a Responsible Officer of the Trustee has actual knowledge of
the occurrence of such an Event of Default. In the event that a Responsible
Officer of the Trustee has actual knowledge of the occurrence of an Event of
Default described in clause (a) of this Section 7.01, the Trustee shall give
written notice to the 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 Trustee, upon a
Responsible Officer having actual knowledge of such default, shall deliver a
written notice to the Servicer of the default on any Remittance Date on which
the 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 the Servicer to make an Advance to the extent required, the
Trustee, as successor Servicer, or another successor Servicer shall, prior to
the next Distribution Date, immediately make such Advance. Any such notice to
the Servicer shall also be given to each Rating Agency and the Depositor.
Notwithstanding any other provision of this Agreement, any remedy with respect
to clauses (a) or (f) of this Section 7.01 shall be effective only if taken no
later than 8:00 AM Eastern time on the Business Day immediately following (i)
with respect to clause (a) of this Section 7.01, the date of written notice to
the Servicer, or (ii) with respect to clause (f) of this Section 7.01, the
related Remittance Date. On and after the receipt by the Servicer of such
written notice, all authority and power of the Servicer hereunder, whether with
respect to the Mortgage Loans or otherwise, shall pass to and be vested in the
Trustee. The Trustee is hereby authorized and empowered to execute and deliver,
on behalf of the Servicer, as attorney-in-fact or otherwise, any and all
documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement 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 the Servicer to pay amounts owed pursuant to Article VIII. The Servicer
agrees to cooperate with the Trustee in effecting the termination of the
Servicer's responsibilities and rights hereunder, including, without limitation,
the transfer to the Trustee of all cash amounts which shall at the time be
credited to the Collection Account of the predecessor Servicer, or thereafter be
received with respect to the Mortgage Loans.
Notwithstanding any termination of the activities of the Servicer
hereunder, the 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 the Servicer would have been
entitled and to continue to receive reimbursement for all outstanding P&I
Advances and Servicing Advances, including Servicing Advances incurred prior to
but not invoiced until after the date of termination, in accordance with the
terms of this Agreement. In addition, the Servicer shall continue to be entitled
to the benefits of Section 6.03, notwithstanding any termination hereunder, with
respect to events occurring prior to such termination.
Section 7.02 Trustee to Act; Appointment of Successor Servicer. On
and after the time the Trustee gives, and the Servicer receives a notice of
termination pursuant to Section 7.01, the Trustee shall, subject to and to the
extent provided in Sections 3.06 and 7.03, and subject to the rights of the
Trustee to appoint a successor Servicer, be the successor to the Servicer in its
capacity as servicer under this Agreement and the transactions set forth or
provided for herein and shall immediately assume all of the obligations of the
Servicer to make P&I Advances and Servicing Advances as successor Servicer and
shall assume and be subject to all the other responsibilities, duties and
liabilities relating thereto placed on the Servicer by the terms and provisions
hereof and applicable law as soon as practicable but in no event later than 90
days after the receipt by the Servicer of the notice of termination pursuant to
Section 7.01. As compensation therefor, the Trustee shall be entitled to all
funds relating to the Mortgage Loans that the Servicer would have been entitled
to charge to the Collection Account if the Servicer had continued to act
hereunder including, if the 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 Trustee as provided herein).
Notwithstanding the foregoing, if the Trustee has become the successor to the
Servicer in accordance with this Section 7.02, the Trustee 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 the
Servicer hereunder in the assumption of all or any part of the responsibilities,
duties or liabilities of the Servicer hereunder. No such appointment of a
successor to the Servicer hereunder shall be effective until the Depositor shall
have consented thereto. Any successor to the Servicer shall be an institution
which is a Xxxxxx Mae- and Xxxxxxx Mac-approved seller/servicer in good standing
and which has a net worth of at least $30,000,000, which is willing to service
the Mortgage Loans, which executes and delivers to the Depositor and the Trustee
an agreement accepting such delegation and assignment, containing an assumption
by such Person of the rights, powers, duties, responsibilities, obligations and
liabilities of the terminated Servicer (other than liabilities of the terminated
Servicer under Section 6.03 incurred prior to termination of the 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 the Servicer hereunder, the Trustee,
unless the Trustee 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 Trustee 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 the
predecessor Servicer from investments. The Trustee and such successor shall take
such action, consistent with this Agreement, as shall be necessary to effectuate
any such succession. Neither the Trustee 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 the predecessor Servicer to
deliver or provide, or any delay in delivering or providing, any cash,
information, documents or records to it.
Notwithstanding anything to the contrary herein, for a period of 30
days following the date on which the Servicer receives a notice of termination
or removal as a Servicer pursuant to Section 7.01 (other than a termination or
removal based upon the Event of Default listed as clause (a) or (f) in Section
7.01 above), the Servicer or its designee may appoint a successor Servicer that
satisfies the eligibility criteria of a successor Servicer set forth in this
Section 7.02, subject to the consent of the Depositor, which consent shall not
be unreasonably withheld or delayed. The successor Servicer appointed by the
Servicer or its designee must agree to act as successor Servicer no later than
such 30-day period, fully effect the servicing transfer within 90 days following
the notice of termination or removal of the Servicer as a Servicer, make all P&I
Advances that are otherwise required to be made by the Servicer as of the date
of such appointment, and reimburse any expenses that the Trustee may have
incurred in connection with the termination or removal of the Servicer and the
appointment of a successor Servicer to the Servicer. This 30-day period shall
terminate immediately if the Servicer fails to make (or cause to be made) any
P&I Advances and all payments under Section 7.01(a).
In the event that the Servicer is terminated pursuant to Section
7.01, the 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 related to such obligations. In addition, all Servicing
Transfer Costs incurred by parties other than the terminated Servicer shall be
paid by the successor Servicer (in which case the successor Servicer shall be
entitled to reimbursement therefor from the Trust Fund or if the successor
Servicer fails to pay, the Trustee pays such amounts from the Trust Fund). If
the Trustee is the predecessor Servicer (except in the case where the Trustee 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 Trustee as the successor
Servicer and not by the predecessor Servicer's actions or omissions), such costs
shall be paid by the successor Servicer (in which case the successor Servicer
shall be entitled to reimbursement therefor from the Trust Fund or if the
successor Servicer fails to pay, the Trustee pays such amounts from the Trust
Fund) promptly upon presentation of reasonable documentation of such costs.
Any successor to the 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 the Servicer is required to maintain pursuant
to Section 3.13.
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 the Servicer, the Trustee shall
give prompt written notice thereof to Certificateholders and to each Rating
Agency.
(b) Within 60 days after the occurrence of any Event of Default, the
Trustee shall transmit by mail to all Certificateholders and each Rating Agency
notice of each such Event of Default hereunder known to the Trustee, unless such
Event of Default shall have been cured or waived.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of the Trustee. The Trustee, before the
occurrence of an Event of Default and after the curing of all 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 an 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 an Event of Default known to 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.
Section 8.02 Certain Matters Affecting the Trustee. Except as
otherwise provided in Section 8.01:
(a) 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 the Trustee shall not have any responsibility to
ascertain or confirm the genuineness of any signature of any such party or
parties;
(b) 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) the Trustee shall not 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
the Trustee 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 the 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;
(f) the Trustee 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;
(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 and except with respect to the investment of funds in the Distribution
Account not made at the direction of the Depositor during the Trustee Float
Period);
(h) the Trustee shall not be deemed to have knowledge of 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; and
(j) In no event shall the Trustee 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.
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 other than with respect to the Trustee's execution and
authentication of the Certificates. The Trustee shall not be accountable for the
use or application by the Depositor or the Servicer of any funds paid to the
Depositor or the Servicer in respect of the Mortgage Loans or deposited in or
withdrawn from the Collection Account by the Depositor or the 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
Servicer).
The Trustee executes the Certificates not in its individual capacity
but solely as Trustee 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
Trustee on behalf of the Trust Fund in the Certificates is made and intended not
as a personal undertaking or agreement by the Trustee but is made and intended
for the purpose of binding only the Trust Fund.
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. As compensation for its
activities under this Agreement, the Trustee may withdraw from the Distribution
Account on each Distribution Date the Trustee Fee for the Distribution Date and,
during the Trustee Float Period, any interest or investment income earned on
funds deposited in the Distribution Account. The Trustee and any director,
officer, employee, or agent of the Trustee shall be indemnified by the Trust
Fund and held harmless against any loss, liability, or expense (including
reasonable attorneys' fees) incurred in connection with any claim or legal
action relating to:
(a) this Agreement,
(b) the Certificates, or
(c) the performance of any of the Trustee's duties under this
Agreement,
other than any loss, liability, or expense (i) resulting from any breach of the
Servicer's obligations in connection with this Agreement for which the Servicer
has performed its obligation to indemnify the Trustee pursuant to Section 6.05
or (ii) incurred because of willful misfeasance, bad faith, or negligence in the
performance of any of its own duties under this Agreement. This indemnity shall
survive the termination of this Agreement or the resignation or removal of the
Trustee 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;
(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; and
(C) printing and engraving expenses in connection with
preparing any Definitive Certificates.
Except as otherwise 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, Registrar, or
paying agent under this Agreement or for any other expenses.
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 Servicer and its Affiliates; provided,
however, that such entity cannot be an Affiliate of the Depositor or the
Servicer other than the Trustee in its role as successor to the 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 Servicer, 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 the 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 the 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 the 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 Servicer 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
Servicer 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.
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 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
Servicer and the Trustee may consider appropriate. If the Servicer shall not
have joined in such appointment within 15 days after the receipt by the 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 under this Agreement
to advance funds on behalf of the 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 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 the
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
Trustee covenants and agrees that it shall act as agent (and the Trustee 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, 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 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, the Trustee will 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 and the Upper-Tier 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 last paragraph of this
Section 8.11, the amount of any federal or state tax, including prohibited
transaction taxes as described below, imposed on any Trust REMIC before its
termination when and as the same shall be due and payable (but such obligation
shall not prevent the Trustee or any other appropriate Person from contesting
any such tax in appropriate proceedings and shall not prevent the Trustee 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 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 R
Certificates shall act as Tax Matters Person for Pooling-Tier REMIC-1, Pooling
Tier REMIC-2, the Lower-Tier REMIC and the Upper-Tier REMIC, within the meaning
of Treasury Regulations Section 1.860F-4(d), and the Trustee is hereby
designated as agent of such Certificateholders for such purpose (or if the
Trustee is not so permitted, such Holder shall be the Tax Matters Person in
accordance with the REMIC Provisions). In such capacity, the Trustee 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 Trustee 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 and the Supplemental
Interest Trust Account (subject to the obligation to pay Basis Risk Carry
Forward Amounts) and the rights of the LIBOR Certificateholders and the Class
M-5, Class M-6 and Class M-7 Certificates to receive Basis Risk 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 Trustee shall file or cause to be filed with the IRS together with
Form 1041 or such other form as may be applicable and shall furnish or cause to
be furnished, to the Class P and Class X Certificateholders and the LIBOR
Certificateholders and Class M-5, Class M-6 and Class M-7 Certificateholders,
the respective amounts described above that are received through a grantor
trust, as described in this paragraph, in the time or times and in the manner
required by the Code.
To enable the Trustee to perform its duties under this Agreement,
the Depositor shall provide to the Trustee within ten days after the Closing
Date all information or data that the Trustee 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 Trustee concerning the value, if any, to each
Class of LIBOR Certificates and the Class M-5, Class M-6 and Class M-7
Certificates of the right to receive Basis Risk Carry Forward Amounts from the
Excess Reserve Fund Account and, in the case of the LIBOR Certificates from the
Supplemental Interest Trust Account. Unless otherwise advised by the Depositor
in writing, for federal income tax purposes, the Trustee is hereby directed to
assign a value of zero to the right of each Holder of a LIBOR Certificate and
Class M-5, Class M-6 and Class M-7 Certificates to receive the related Basis
Risk Carry Forward Amount for purposes of allocating the purchase price of a
LIBOR Certificate and Class M-5, Class M-6 and Class M-7 Certificates acquired
by an initial Holder thereof between such right and the related Upper-Tier
Regular Interest. Thereafter, the Depositor shall provide to the Trustee
promptly upon written request therefor any additional information or data that
the Trustee may, from time to time, reasonably request to enable the Trustee to
perform its duties under this Agreement. The Depositor hereby indemnifies the
Trustee for any losses, liabilities, damages, claims, or expenses of the Trustee
arising from any errors or miscalculations of the Trustee that result from any
failure of the Depositor to provide, or to cause to be provided, accurate
information or data to the Trustee on a timely basis.
The Trustee shall not (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 Trust REMIC set
forth in Section 860G(d) of the Code, or the tax on "net income from foreclosure
property") unless the Trustee 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
Trustee) 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 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 if such
tax arises out of or results from negligence of the Trustee in the performance
of any of its obligations under this Agreement, (ii) the Servicer, in the case
of any such minimum tax, and otherwise if such tax arises out of or results from
the negligence of the Servicer in the performance of any of its obligations
under this Agreement, or (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, or (iv) in all other cases, or if the
Trustee or the Servicer fails to honor its obligations under the preceding
clause (i), (ii) or (iii) any such tax will be paid with amounts otherwise to be
distributed to the Certificateholders, as provided in Section 4.02(a).
Section 8.12 Periodic Filings. The Trustee and the Servicer shall
reasonably cooperate with the Depositor in connection with the Trust's
satisfying the reporting requirements under the Exchange Act.
(a) (i) Within 15 days after each Distribution Date, the Trustee
shall, in accordance with industry standards, file with the Commission via the
Electronic Data Gathering and Retrieval System ("XXXXX"), a Distribution Report
on Form 10-D, signed by the Depositor, with a copy of the monthly statement to
be furnished by the Trustee to the Certificateholders for such Distribution
Date. Any disclosure in addition to the monthly statement required to be
included on the Form 10-D ("Additional Form 10-D Disclosure") shall be
determined and prepared by the entity that is indicated in Exhibit S as the
responsible party for providing that information, if other than the Trustee and
provided to the Trustee in XXXXX-compatible form at the email address set forth
in Section 10.05 using Exhibit W, and the Trustee will have no duty or liability
to verify the accuracy or sufficiency of any such Additional Form 10-D
Disclosure and the Trustee shall have no liability with respect to any failure
to properly prepare or file such Form 10-D resulting from or relating to the
Trustee's inability or failure to obtain any information in a timely manner from
the party responsible for delivery of such Additional Form 10-D Disclosure. As
used in this Agreement, XXXXX-compatible form means an electronic information
storage format acceptable to the Trustee and the party providing such
information.
Within 5 calendar days after the related Determination Date, each
entity that is indicated in Exhibit S as the responsible party for providing
Additional Form 10-D Disclosure shall be required to provide to the Trustee and
the Depositor, to the extent known, clearly identifying which item of Form 10-D
the information relates to, any Additional Form 10-D Disclosure, if applicable.
The Trustee shall compile the information provided to it, prepare the Form 10-D
and forward the Form 10-D to the Depositor for verification. The Depositor will
approve, as to form and substance, or disapprove, as the case may be, the Form
10-D. No later than three Business Days prior to the 15th calendar day after the
related Distribution Date, an officer 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 Trustee.
(ii) Within four (4) Business Days after the occurrence of an event
requiring disclosure on Form 8-K (each such event, a "Reportable Event"),
the Depositor shall prepare and file any Form 8-K, as required by the
Exchange Act, in addition to 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 determined and prepared by
the entity that is indicated in Exhibit S as the responsible party for
providing that information.
For so long as the Trust is subject to the Exchange Act reporting
requirements, no later than the end of business on the second Business Day
after the occurrence of a Reportable Event, the entity that is indicated
in Exhibit S as the responsible party for providing Form 8-K Disclosure
Information shall be required to provide to the Depositor, to the extent
known, the form and substance of any Form 8-K Disclosure Information, if
applicable. The Depositor shall compile the information provided to it,
and prepare and file the Form 8-K, which shall be signed by an officer of
the Depositor.
(iii) Prior to January 30 of the first year in which the Trustee is
able to do so under applicable law, the Trustee shall, in accordance with
industry standards, file a Form 15 Suspension Notice with respect to the
Trust Fund, if applicable. Prior to (x) March 15, 2007 and (y) unless and
until a Form 15 Suspension Notice shall have been filed, prior to March 15
of each year thereafter, the Servicer shall provide the Trustee with an
Annual Compliance Statement, together with a copy of the Assessment of
Compliance and Attestation Report to be delivered by the Servicer pursuant
to Sections 3.22 and 3.23 (including with respect to any subservicer or
subcontractor, if required to be filed). Prior to (x) March 31, 2007 and
(y) unless and until a Form 15 Suspension Notice shall have been filed,
March 31 of each year thereafter, the Trustee shall file a Form 10-K, in
substance as required by applicable law or applicable Securities and
Exchange Commission staff's interpretations and conforming to industry
standards, with respect to the Trust Fund. Such Form 10-K shall include
the Assessment of Compliance, Attestation Report, Annual Compliance
Statements and other documentation provided by the Servicer pursuant to
Sections 3.22 and 3.23 (including with respect to any subservicer or
subcontractor, if required to be filed) and Section 3.23 with respect to
the Trustee, and the Form 10-K certification in the form attached hereto
as Exhibit M (the "Certification") signed by the senior officer of the
Depositor in charge of securitization. The Trustee shall receive the items
described in the preceding sentence no later than March 15 of each
calendar year prior to the filing deadline for the Form 10-K.
Any disclosure or information in addition to that described in the
preceding paragraph that is required to be included on Form 10-K ("Additional
Form 10-K Disclosure") shall be determined and prepared by the entity that is
indicated in Exhibit S as the responsible party for providing that information,
if other than the Trustee and provided to the Trustee in XXXXX-compatible form
at the email address set forth in Section 10.05 using Exhibit W, and the Trustee
will have no duty or liability to verify the accuracy or sufficiency of any such
Additional Form 10-K Disclosure.
If information, data and exhibits to be included in the Form 10-K
are not so timely delivered, the Trustee shall file an amended Form 10-K
including such documents as exhibits reasonably promptly after they are
delivered to the Trustee. The Trustee shall have no liability with respect to
any failure to properly prepare or file such periodic reports resulting from or
relating to the Trustee's inability or failure to timely obtain any information
from any other party.
Prior to (x) March 10, 2007 and (y) unless and until a Form 15
Suspension Notice shall have been filed, prior to March 1 of each year
thereafter, each entity that is indicated in Exhibit S as the responsible party
for providing Additional Form 10-K Disclosure shall be required to provide to
the Trustee and the Depositor, to the extent known, the form and substance of
any Additional Form 10-K Disclosure Information, if applicable. The Trustee
shall compile the information provided to it, prepare the Form 10-K and forward
the Form 10-K to the Depositor for verification. The Depositor will approve, as
to form and substance, or disapprove, as the case may be, the Form 10-K by no
later than March 25 of the relevant year (or the immediately preceding Business
Day if March 25 is not a Business Day), an officer 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
Trustee.
The Servicer shall be responsible for determining the pool
concentration applicable to any subservicer to which the Servicer delegated any
of its responsibilities with respect to the Mortgage Loans at any time, for
purposes of disclosure as required by Items 1117 and 1119 of Regulation AB. The
Trustee will provide electronic or paper copies of all Form 10-D, 8-K and 10-K
filings free of charge to any Certificateholder upon request. Any expenses
incurred by the Trustee in connection with the previous sentence shall be
reimbursable to the Trustee out of the Trust Fund.
The Trustee shall sign a certification (in the form attached hereto
as Exhibit N) for the benefit of the Depositor and its officers, directors and
Affiliates in respect of items 1 through 3 of the Certification (provided,
however, that the Trustee shall not undertake an analysis of the Attestation
Report attached as an exhibit to the Form 10-K), and the Servicer shall sign a
certification solely with respect to the Servicer (in the form attached hereto
as Exhibit O) for the benefit of the Depositor, the Trustee and each Person, if
any, who "controls" the Depositor or the Trustee within the meaning of the
Securities Act of 1933, as amended, and their respective officers and directors
in respect of items 4 and 5 of the Certification. Each such certification shall
be delivered to the Depositor and the Trustee by March 20th of each year (or if
not a Business Day, the immediately preceding Business Day). The Certification
attached hereto as Exhibit M shall be delivered to the Trustee by March 25th for
filing on or prior to March 30th of each year (or if not a Business Day, the
immediately preceding Business Day).
The Trustee shall indemnify the Depositor and its officers and
directors 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 (i) the failure to deliver its
Assessment of Compliance as required by the last paragraph of Section 3.23, (ii)
any material misstatement or omission in the Certification made in reliance on
any material misstatement or omission contained in the certification provided by
the Trustee in the form of Exhibit N or in the Assessment of Compliance provided
pursuant to Section 3.23 or (iii) the failure to timely file any Form 10-D or
Form 10-K as required hereunder; provided that the Trustee shall have no
liability with respect to any failure to timely file any Form 10-D or Form 10-K
resulting from or relating to the Trustee's inability or failure to obtain any
information from a party other than itself. The Trustee shall not, and shall
have no obligation to, indemnify for failure of its accountants to timely
deliver the accountants' attestation required by Section 3.23. Notwithstanding
the foregoing, in no event shall the Trustee be held liable for any special,
indirect, incidental, punitive or consequential damages resulting from any
action taken or omitted to be taken by it under Section 3.23.
The Servicer shall indemnify and hold harmless the Depositor, the
Trustee and each Person, if any, who "controls" the Depositor or the Trustee
within the meaning of the Securities Act of 1933, as amended, and their
respective officers and directors 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 (i) a
breach of the Servicer's obligations under this Section 8.12(a), Section 3.22 or
Section 3.23 or (ii) any material misstatement or omission in the Certification
made in reliance on any material misstatement contained in the certification
provided by the Servicer in the form of Exhibit O or in the Officer's
Certificate provided pursuant to Section 3.22 or the Assessment of Compliance
provided pursuant to Section 3.23. Notwithstanding the foregoing, in no event
shall the Servicer be held liable for any special, indirect, incidental,
punitive or consequential damages resulting from any action taken or omitted to
be taken by it under Section 3.23.
If the indemnification provided for herein is unavailable or
insufficient to hold harmless the indemnified party, then (i) the Trustee agrees
in connection with (a) the failure to deliver its Assessment of Compliance as
required by the last paragraph of Section 3.23, (b) any material misstatement or
omission in the Certification made in reliance on any material misstatement or
omission contained in the certification provided by the Trustee in the form of
Exhibit N or in the Assessment of Compliance provided pursuant to Section 3.23
or (c) the failure to timely file any Form 10-D or Form 10-K as required
hereunder; provided that the Trustee shall have no liability with respect to any
failure to timely file any Form 10-D or Form 10-K resulting from or relating to
the Trustee's inability or failure to obtain any information from a party other
than itself, that it shall contribute to the amount paid or payable by the
Depositor as a result of the losses, claims, damages or liabilities of the
Depositor in such proportion as is appropriate to reflect the relative fault of
the Depositor on the one hand and the Trustee on the other and (ii) the Servicer
agrees that it shall contribute to the amount paid or payable by the Depositor
and/or the Trustee as a result of the losses, claims, damages or liabilities of
the Depositor and/or the Trustee in such proportion as is appropriate to reflect
the relative fault of the Depositor or the Trustee, as the case may be, on the
one hand and the Servicer on the other in connection with (a) a breach of the
Servicer's obligations under this Section 8.12(a), Section 3.22 or Section 3.23
or (b) any material misstatement or omission in the Certification made in
reliance on any material misstatement contained in the certification provided by
the Servicer in the form of Exhibit O or in the Officer's Certificate provided
pursuant to Section 3.22 or the Assessment of Compliance provided pursuant to
Section 3.23.
(b) Upon any filing with the Securities and Exchange Commission, the
Trustee shall promptly deliver to the Depositor a copy of any such executed
report, statement or information.
Section 8.13 Tax Treatment of Basis Risk Carry Forward Amounts, the
Supplemental Interest Trust, the Yield Maintenance Agreement and the Interest
Rate Swap Agreement. For federal income tax purposes, the Trustee shall treat
the rights that each Class of LIBOR Certificates has to receive payments of
Basis Risk Carry Forward Amounts from the Excess Reserve Fund Account and, in
the case of the LIBOR Certificates, to the extent not paid from the Excess
Reserve Fund Account, from the Supplemental Interest Trust 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 A-2, Class X-1, 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 - subject to
the obligation to pay Class IO Shortfalls), and the Class X Certificates will be
comprised of: (i) two regular interests in the Upper-Tier REMIC (the Class UT-X
Interest and the Class UT-IO Interest, (ii) the ownership of the Excess Reserve
Fund Account, subject to an obligation to pay Basis Risk Carry Forward Amounts
to the applicable Offered Certificates, (iii) ownership of the Supplemental
Interest Trust, the Yield Maintenance Agreement, the Interest Rate Swap
Agreement (subject to the obligation to pay Basis Risk Carry Forward Amounts)
and (iv) the right to receive Class IO Shortfalls. The Trustee shall allocate
the issue price for a Class of LIBOR Certificates, Class M-5, Class M-6 and
Class M-7 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 Trustee is hereby
directed to assign a value of zero to the right of each Holder of a LIBOR
Certificate, Class M-5, Class M-6 or Class M-7 Certificate to receive Basis Risk
Carry Forward Amounts for purposes of allocating the purchase price of an
initial LIBOR, Class M-5, Class M-6 or Class M-7 Certificateholder between such
rights and the related Upper-Tier Regular Interest.
Holders of Offered 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 UT-X Interest
available for such payments and amounts payable on the Class UT-IO Interest
(such excess, a "Class IO Shortfall"), first from interest and then from
principal distributable on the Offered Certificates. A Class IO Shortfall
payable from interest collections shall be allocated pro rata among such Offered
Certificates based on the amount of interest otherwise payable to such Class of
Offered Certificates, and a Class IO Shortfall payable from principal
collections shall be allocated in reverse sequential order beginning with the
most subordinate Class of Offered 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 Offered
Certificates in respect of the corresponding Class of 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 Intention of the Parties and Interpretation. Each of
the parties acknowledges and agrees that the purpose of Sections 3.22, 3.23 and
8.12 of this Agreement is to facilitate compliance by the Sponsor and the
Depositor with the provisions of Regulation AB promulgated by the SEC under the
1934 Act (17 C.F.R. xx.xx. 229.1100 - 229.1123), as such may be amended from
time to time and subject to clarification and interpretive advice as may be
issued by the staff of the SEC from time to time. Therefore, each of the parties
agrees that (a) the obligations of the parties hereunder shall be interpreted in
such a manner as to accomplish that purpose, (b) the parties' obligations
hereunder will be supplemented and modified as necessary to be consistent with
any such amendments, interpretive advice or guidance, convention or consensus
among active participants in the asset-backed securities markets, advice of
counsel, or otherwise in respect of the requirements of Regulation AB, (c) the
parties shall comply with reasonable requests made by the Sponsor or the
Depositor for delivery of additional or different information as the Sponsor or
the Depositor may determine in good faith is necessary to comply with the
provisions of Regulation AB, and (d) no amendment of this Agreement shall be
required to effect any such changes in the parties' obligations as are necessary
to accommodate evolving interpretations of the provisions of Regulation AB.
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Liquidation or Purchase of the
Mortgage Loans. Subject to Sections 9.02 and 9.03, the obligations and
responsibilities of the Depositor, the Servicer 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, 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,
(ii) the lesser of (x) the appraised value of any REO Property as determined by
the higher of two appraisals completed by two independent appraisers selected by
(A) the Majority Class X Certificateholder (in the case of an optional
termination exercised by the Servicer, acting at the direction of the Majority
Class X Certificateholder) or (B) the Servicer (in the case of an optional
termination exercised by the Servicer individually), in either case 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 or owed to the
Trust Fund, as applicable (as provided to the Trustee 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 earlier of (i) the
Latest Possible Maturity Date and (ii) 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. For
purposes of this Agreement, the Person electing to exercise an optional
termination on any Optional Termination Date shall be referred to as the
"Electing Person."
Section 9.02 Final Distribution on the Certificates. If on any
Remittance Date, the Servicer notifies the Trustee 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, the Trustee shall promptly send a
Notice of Final Distribution to each Certificateholder and the Swap Provider. If
the Servicer (at the direction of the Majority Class X Certificateholder), or
the Servicer, individually, elects to terminate the Trust Fund pursuant to
clause (a) of Section 9.01, by the 25th day of the month preceding the month of
the final distribution, the Electing Person shall notify the Servicer, the
Depositor and the Trustee in writing of the date the Electing Person intends to
terminate the Trust Fund and of the applicable Termination Price of the Mortgage
Loans and REO Properties. The Servicer, when acting at the direction of the
Majority Class X Certificateholder, shall be entitled to reasonably rely on a
representation from the Majority Class X Certificateholder that it is the
Majority Class X Certificateholder and is entitled under this Agreement to
direct the Servicer 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 Trustee 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 Trustee 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 and the
Electing Person is the Servicer (at the direction of the Majority Class X
Certificateholder), the Majority Class X Certificateholder shall remit the
applicable Termination Price in immediately available funds to the Servicer at
or prior to 1:00 p.m. (Eastern time) on the Business Day immediately prior to
the applicable Distribution Date, and, upon receipt of such funds from the
Majority Class X Certificateholder, the Servicer shall promptly deposit such
funds in the Collection Account. During the time such funds are held in the
Collection Account, such funds shall be invested, at the direction of the
Majority Class X Certificateholder, in Permitted Investments, and the Majority
Class X Certificateholder shall be entitled to all income from such investments,
and shall be responsible for, and shall reimburse the Servicer for all losses
from such investments. The Majority Class X Certificateholder shall be obligated
to reimburse the Servicer for its reasonable out-of-pocket expenses incurred in
connection with its termination of the Trust Fund at the direction of the
Majority Class X Certificateholder and shall indemnify and hold harmless the
Servicer for any losses, liabilities or expenses resulting from any claims
directly resulting from or relating to the Servicer's termination of the Trust
Fund at the direction of the Majority Class X Certificateholder, except to the
extent such losses, liabilities or expenses arise out of or result from the
Servicer's negligence, bad faith or willful misconduct. In the event such Notice
of Final Distribution is given and the Electing Person is the Servicer, the
Servicer shall deposit the Termination Price in the Collection Account at or
prior to 1:00 p.m. (Eastern time) on the Business Day immediately prior to the
applicable Distribution Date. During the time such funds are held in the
Collection Account, such funds may be invested by the Servicer in accordance
with Section 3.12. In connection with any such termination of the Trust Fund,
the Servicer 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 Trustee for deposit in the Distribution Account at or prior to
1:00 p.m. (Eastern time) on the Business Day immediately prior to the applicable
Distribution Date. Upon such final deposit with respect to the Trust Fund and
the receipt by the Trustee of a Request for Release therefor, the Trustee shall
promptly release to the Majority Class X Certificateholder, or its designee, the
Custodial Files for the Mortgage Loans.
Upon presentation and surrender of the Certificates, the Trustee
shall cause to be distributed to the Certificateholders of each Class (after
payment and reimbursement of all amounts due to the Servicer (including all
unreimbursed Advances and any Servicing Fees accrued and unpaid as of the date
the Termination Price is paid), the Depositor 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 Trustee 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 Trustee 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 Class R Certificateholders shall be entitled to all unclaimed funds and
other assets of the Trust Fund which remain subject hereto.
Section 9.03 Additional Termination Requirements. In the event an
election to terminate the Trust Fund is made as provided in Section 9.01, 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 the electing Person, to the effect that the failure to comply
with the requirements of this Section 9.03 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 Trustee shall sell all of the assets of the Trust Fund to
the Person electing to terminate the Trust Fund, 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; and
(b) The Trustee 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 Trustee sold the assets of the
Trust Fund to the electing Person.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Amendment. This Agreement may be amended from time to
time by the Depositor, the Servicer 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 or the Servicer, (iv) to add any other provisions with respect to
matters or questions arising hereunder or (v) to modify, alter, amend, add to or
rescind any of the terms or provisions contained in this Agreement; 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 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. The Trustee, the Depositor and the 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 or
Regulation AB; 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 Servicer, 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 10.01, with
respect to any amendment that significantly modifies the permitted activities of
the Trustee or the Servicer, 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 10.01 have been obtained.
Promptly after the execution of any amendment to this Agreement
requiring the consent of Certificateholders, the Trustee 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 10.01 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 Trustee may prescribe.
Nothing in this Agreement shall require the Trustee 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 Trustee or the Trust Fund), satisfactory to 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 10.01.
Notwithstanding the foregoing, any amendment to this Agreement shall
require the prior written consent of the Swap Provider or the Yield Maintenance
Provider if such amendment materially and adversely affects the rights or
interests of the Swap Provider or the Yield Maintenance Provider, as applicable.
Section 10.02 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 properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Servicer at the expense of the Trust.
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 10.03 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 10.04 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. The Depositor shall arrange for
filing any Uniform Commercial Code continuation statements in connection with
any security interest granted or assigned to the Trustee for the benefit of the
Certificateholders.
Section 10.05 Notices. (a) The Trustee shall 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 the 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 Trustee 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 and the Servicer by the Depositor in writing; (b) in the case of the
Servicer, to Ocwen Loan Servicing, LLC, 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxx Xxxx, Xxxx Xxxx Xxxxx, Xxxxxxx 00000, Attention: Secretary, or such
other address as may be hereafter furnished to the Depositor and the Trustee by
Ocwen in writing; (c) in the case of the Trustee, to the Corporate Trust Office,
or such other address as the Trustee may hereafter furnish to the Depositor and
the Servicer; provided, however, all reports, statements, certifications and
information required to be provided to the Trustee pursuant to Section 8.12 for
filing shall be electronically forwarded to XXXxx.Xxxxxxxxxxxxx@xx.xxx; and (d)
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 10.06 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 10.07 Assignment; Sales; Advance Facilities. (a)
Notwithstanding anything to the contrary contained herein, except as provided in
Section 6.04, this Agreement may be assigned by the Servicer with the prior
written consent of the Depositor and with written notice to the Trustee. In
addition, for so long as the Servicer is acting as the Servicer hereunder (i)
the Servicer is hereby authorized to enter into an advance facility ("Advance
Facility") under which (A) the Servicer sells, assigns or pledges to an
Advancing Person the Servicer's rights under this Agreement to be reimbursed for
any P&I Advances or Servicing Advances and/or (B) an Advancing Person agrees to
fund some or all P&I Advances or Servicing Advances required to be made by the
Servicer pursuant to this Agreement and (ii) the Servicer is hereby authorized
to assign its rights to the Servicing Fee; it being understood that neither the
Trust Fund nor any party hereto shall have a right or claim to an Advance
Reimbursement Amount so assigned or to the portion of the Servicing Fee so
assigned; it being further understood that upon resignation or termination of
the Servicer and reimbursement of all amounts due to the Servicer hereunder, the
assignment of further Advance reimbursement rights to such Advance Facility (in
the case of clause (i)) and such assignment (in the case of clause (ii)) shall
be terminated with respect to amounts due related to this Agreement. No consent
of the Trustee, Certificateholders, or any other party is required before the
Servicer may enter into an Advance Facility. Notwithstanding the existence of
any Advance Facility under which an Advancing Person agrees to fund P&I Advances
and/or Servicing Advances on the Servicer's behalf, the Trustee shall have no
oversight obligations with respect to such Advance Facility and the Servicer
shall remain obligated pursuant to this Agreement to make P&I Advances and
Servicing Advances pursuant to and as required by this Agreement, and shall not
be relieved of such obligations by virtue of such Advance Facility.
(b) Advance reimbursement amounts ("Advance Reimbursement Amounts")
shall consist solely of amounts in respect of P&I Advances and/or Servicing
Advances made with respect to the Mortgage Loans for which the Servicer would be
permitted to reimburse itself in accordance with this Agreement, assuming the
Servicer had made the related P&I Advance(s) and/or Servicing Advance(s).
(c) The Servicer shall maintain and provide to any successor
Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced
by, pledged or assigned to, and reimbursed to any Advancing 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.
(d) An Advancing Person who purchases or receives an assignment or
pledge of the rights to be reimbursed for P&I Advances and/or Servicing
Advances, and/or whose obligations hereunder are limited to the funding of P&I
Advances and/or Servicing Advances shall not be required to meet the criteria
for qualification of a Subservicer set forth in this Agreement.
(e) Advance Reimbursement Amounts distributed with respect to each
Mortgage Loan shall be allocated to outstanding xxxxxxxxxxxx X&X Advances or
Servicing Advances (as the case may be) made with respect to that Mortgage Loan
on a "first-in, first out" (FIFO) basis. Such documentation shall also require
the Servicer to provide to the related Advancing Person or its designee
loan-by-loan information with respect to each such Advance Reimbursement Amount
distributed to such Advancing Person or Advance Facility trustee on each
Distribution Date, to enable the Advancing Person or Advance Facility trustee to
make the FIFO allocation of each such Advance Reimbursement Amount with respect
to each Mortgage Loan. The Servicer shall remain entitled to be reimbursed by
the Advancing Person or Advance Facility trustee for all P&I Advances and
Servicing Advances funded by the Servicer to the extent the related rights to be
reimbursed therefor have not been sold, assigned or pledged to an Advancing
Person.
(f) Any amendment to this Section 10.07 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 10.07, including
amendments to add provisions relating to a successor Servicer, may be entered
into by the Trustee, the Depositor and the Servicer without the consent of any
Certificateholder, notwithstanding anything to the contrary in this Agreement,
provided, that the Trustee has been provided an Opinion of Counsel that such
amendment has no material adverse effect on the Certificateholders which opinion
shall be an expense of the Servicer entering into the Advance Facility but in
any case shall not be an expense of the Trustee or the Trust Fund; 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 (instead of
obtaining an Opinion of Counsel) 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 rating 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. Prior to entering into an Advance Facility, the
Servicer shall notify the lender under such facility in writing that: (a) the
Advances financed by and/or pledged to the lender are obligations owed to the
Servicer on a non-recourse basis 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 otherwise obligated or
liable to repay any Advances financed by the lender; (b) the Servicer will be
responsible for remitting to the lender the applicable amounts collected by it
as reimbursement for Advances funded by the lender, subject to the restrictions
and priorities created in this Agreement; and (c) the Trustee shall not have any
responsibility to track or monitor the administration of the financing
arrangement between the Servicer and the lender.
Section 10.08 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 10.08, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 10.09 Inspection and Audit Rights. The Servicer agrees that,
on reasonable prior notice, it will permit any representative of the Depositor
or the Trustee during the Servicer's normal business hours, to examine all the
books of account, records, reports and other papers of the Servicer relating to
the Mortgage Loans, to make copies and extracts therefrom, to cause such books
to be audited by independent certified public accountants selected by the
Depositor or the Trustee and to discuss its affairs, finances and accounts
relating to the Mortgage Loans with its officers, employees and independent
public accountants (and by this provision the 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 the Servicer incident to the
exercise by the Depositor or the Trustee of any right under this Section 10.09
shall be borne by the party making the request. The Servicer may impose
commercially reasonable restrictions on dissemination of information the
Servicer defines as confidential.
Nothing in this Section 10.09 shall limit the obligation of the
Servicer to observe any applicable law prohibiting disclosure of information
regarding the Mortgagors and the failure of the Servicer to provide access as
provided in this Section as a result of such obligation shall not constitute a
breach of this Section. Nothing in this Section 10.09 shall require the Servicer
to collect, create, collate or otherwise generate any information that it does
not generate in its usual course of business. The Servicer shall not be required
to make copies of or to ship documents to any Person who is not a party to this
Agreement, and then only if provisions have been made for the reimbursement of
the costs thereof.
Section 10.10 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
Trustee pursuant to this Agreement, are and shall be deemed fully paid.
Section 10.11 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 10.12 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 10.13 Third Party Rights. Each of the Swap Provider, and
each Person entitled to indemnification hereunder who is not a party hereto,
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 10.14 No Solicitation. From and after the Closing Date, the
Servicer 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 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 the Servicer may
solicit any Mortgagor for whom the Servicer has become aware of or received a
request for payoff, or a written or verbal communication from Mortgagor or
his/her agent indicating a desire to prepay the related Mortgage Loan and,
provided, further, that it is understood and agreed that promotions undertaken
by the 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 10.14, nor is the Servicer prohibited from responding to
unsolicited requests or inquiries made by a Mortgagor or his or her agent.
Section 10.15 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 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 Servicer and the Trustee
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 and the 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
DEUTSCHE BANK NATIONAL TRUST COMPANY,
solely as Trustee
By: /s/ Xxxxxxx Xxxxx
--------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
By: /s/ Xxxxxxxx Xxxxxxxxxxx
--------------------------------------
Name: Xxxxxxxx Xxxxxxxxxxx
Title: Associate
OCWEN LOAN SERVICING, LLC,
as Servicer
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
SCHEDULE I
Mortgage Loan Schedule
(Available Upon Request to the Trustee)
SCHEDULE II
GSAMP Mortgage Loan Trust 2006-S6,
Mortgage Pass-Through Certificates
Representations and Warranties of Ocwen Loan Servicing, LLC, as Servicer
Ocwen Loan Servicing, LLC ("Ocwen") hereby makes the representations
and warranties set forth in this Schedule II to the Depositor, and the Trustee,
as of the Closing Date, or if so specified herein, as of the Cut-off Date:
(1) Ocwen is duly organized as a limited liability company and is
validly existing and in good standing under the laws of the State of Delaware,
and is licensed and qualified to transact any and all business contemplated by
this Pooling and Servicing Agreement to be conducted by Ocwen 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 each Mortgage
Loan in accordance with the terms of this Pooling and Servicing Agreement;
(2) Ocwen 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 Ocwen 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 and the Trustee, constitutes a legal, valid and binding
obligation of Ocwen, enforceable against Ocwen 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 Ocwen, the servicing of the Mortgage Loans by Ocwen hereunder, the
consummation by Ocwen 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 Ocwen and will not (A) result in a breach of any term or
provision of the organizational documents of Ocwen 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 Ocwen is a party or
by which it may be bound, or any statute, order or regulation applicable to
Ocwen of any court, regulatory body, administrative agency or governmental body
having jurisdiction over Ocwen; and Ocwen 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 Ocwen's knowledge, would
in the future materially and adversely affect, (x) the ability of Ocwen to
perform its obligations under this Pooling and Servicing Agreement or (y) the
business, operations, financial condition, properties or assets of Ocwen taken
as a whole;
(4) Ocwen is an approved seller/servicer for Xxxxxx Xxx and an
approved servicer for Xxxxxxx Mac in good standing;
(5) No litigation is pending against Ocwen that would materially and
adversely affect the execution, delivery or enforceability of this Pooling and
Servicing Agreement or the ability of Ocwen 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 Ocwen of, or compliance by Ocwen with, this Pooling and Servicing
Agreement or the consummation by Ocwen 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) Ocwen covenants that its computer and other systems used in
servicing the Mortgage Loans operate in a manner such that Ocwen can service the
Mortgage Loans in accordance with the terms of this Pooling and Servicing
Agreement;
(8) With respect to each Mortgage Loan, to the extent Ocwen serviced
such Mortgage Loan and to the extent Ocwen provided monthly reports to the three
credit repositories, Ocwen 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; and
(9) The delinquency recognition policy described in the definition
of "Delinquent" is not less restrictive than any delinquency recognition policy
established by the primary safety and soundness regulator, if any, of Ocwen.
EXHIBIT A-1
FORM OF CLASS A AND CLASS M CERTIFICATES
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, XXXX 00-0, XXXX 00-0,
XXXX 95-60 OR PTCE 96-23 OR A COMPARABLE EXEMPTION AVAILABLE UNDER SIMILAR LAW.
Certificate No. :
Cut-off Date : October 1, 2006
First Distribution Date : November 27, 2006
Initial Certificate
Balance of this
Certificate
("Denomination") :
Initial Certificate
Balances of all Class Certificate
Certificates of this Class : Class Balance
Class A-1A $76,000,000.00
Class A-1B $19,000,000.00
Class A-1C $95,531,000.00
Class A-2 $62,603,000.00
Class A-3 $19,053,000.00
Class M-1 $35,241,000.00
Class M-2 $ 8,324,000.00
Class M-3 $13,281,000.00
Class M-4 $ 6,376,000.00
Class M-5 $ 7,260,000.00
Class M-6 $ 5,667,000.00
Class M-7 $ 5,844,000.00
CUSIP : Class CUSIP No.
Class A-1A 36245C AA 0
Class X-0X 00000X XX 8
Class A-1C 36245C AC 6
Class A-2 36245C AD 4
Class X-0 00000X XX 2
Class M-1 36245C AF 9
Class M-2 36245C AG 7
Class M-3 36245C AH 5
Class M-4 36245C AJ 1
Class M-5 36245C AK 8
Class M-6 36245C AL 6
Class M-7 36245C AM 4
ISIN : Class ISIN
Class A-1A US36245CAA09
Class A-1B US36245CAB81
Class A-1C US36245CAC64
Class A-2 US36245CAD48
Class A-3 US36245CAE21
Class M-1 US36245CAF95
Class M-2 US36245CAG78
Class M-3 US36245CAH51
Class M-4 US36245CAJ18
Class M-5 US36245CAK80
Class M-6 US36245CAL63
Class M-7 US36245CAM47
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2006-S6
Mortgage Pass-Through Certificates, Series 2006-S6
[Class A-] [Class M-]
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 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 CEDE & CO. 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 October
1, 2006 (the "Agreement"), among GS Mortgage Securities Corp., as depositor (the
"Depositor"), Ocwen Loan Servicing, LLC, as servicer (the "Servicer"), and
Deutsche Bank National Trust Company, as trustee (the "Trustee"). 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 Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity, but
solely as Trustee
By:____________________________________
Authenticated:
By:___________________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST
COMPANY, not in its individual capacity,
but solely as Trustee
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2006-S6
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2006-S6 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 Trustee 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 Trustee.
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 Trustee 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 Trustee for such
purposes.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Servicer 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 Trustee upon surrender of this Certificate for
registration of transfer at the offices designated by the Trustee for such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Trustee 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 Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor and the Trustee and any agent of the Depositor or the
Trustee may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and neither the Depositor, the Trustee, nor any
such agent shall be affected by any notice to the contrary.
On any Distribution Date (i) 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 Servicer (at the direction of the Majority Class X
Certificateholder) or (ii) on which the aggregate Stated Principal Balance of
the Mortgage Loans is less than or equal to 5% of the Cut-off Date Pool
Principal Balance, the Servicer, 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 9.01 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 Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________.
______________________________________
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 TRUSTEE A TRANSFEROR LETTER IN THE FORM OF
EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (i) THE TRUSTEE
RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I-1 OR A NON-RULE 144A
INVESTMENT LETTER IN THE FORM OF EXHIBIT I-2 TO THE AGREEMENT REFERRED TO HEREIN
OR (ii) THE TRUSTEE 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 TRUSTEE 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
OR ARRANGEMENT 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
THAT 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 TRUSTEE, TO THE EFFECT THAT THE PURCHASE AND 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 TRUSTEE, THE DEPOSITOR OR THE SERVICER 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 OR OTHER PLAN OR
ARRANGEMENT 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
TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
Certificate No. : 1
Cut-off Date : October 1, 2006
First Distribution Date : November 27, 2006
Percentage Interest of
this Certificate
("Denomination") : 100%
CUSIP : 36245C AR 3
ISIN : US36245CAR34
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2006-S6
Mortgage Pass-Through Certificates, Series 2006-S6
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 Servicer 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 (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 October 1, 2006 (the
"Agreement") among GS Mortgage Securities Corp., as depositor (the "Depositor"),
Ocwen Loan Servicing, LLC, as servicer (the "Servicer"), and Deutsche Bank
National Trust Company, as trustee (the "Trustee"). 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 Trustee 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 Trustee shall require the transferor to execute a transferor
certificate (in substantially the form attached to the Pooling and Servicing
Agreement) and deliver either (i) a Rule 144A Letter or a Non-Rule 144A
Investment Letter, in either case substantially in the form attached to the
Agreement, or (ii) a written Opinion of Counsel to the Trustee 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
Trustee shall have received (i) a representation letter from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
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, (ii) if the transferee is an insurance
company, a representation letter that the transferee is using the assets of its
general account and that the purchase and holding of this Certificate are
covered under Section I and III of Prohibited Transaction Class Exemption 95-60
or (iii) an Opinion of Counsel satisfactory to the Trustee, to the effect that
the purchase and 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 Trustee, the Depositor or the Servicer
to any obligation in addition to those expressly undertaken in the Agreement or
to any liability, which representation letter or Opinion of Counsel shall not be
an expense of the Trustee, the Depositor, the Servicer 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, Section 4975 of the
Code or 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.
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 Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
By:____________________________________
Authenticated:
By ____________________________________
Authorized Signatory of DEUTSCHE BANK
NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2006-S6
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2006-S6 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 Trustee 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 Trustee.
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 Trustee 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 Trustee for such
purposes.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Servicer 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 Trustee upon surrender of this Certificate for
registration of transfer at the offices designated by the Trustee for such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Trustee 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 Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor and the Trustee and any agent of the Depositor or the
Trustee may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and neither the Depositor, the Trustee, nor any
such agent shall be affected by any notice to the contrary.
On any Distribution Date (i) 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 Servicer (at the direction of the Majority Class X
Certificateholder) or (ii) on which the aggregate Stated Principal Balance of
the Mortgage Loans is less than or equal to 5% of the Cut-off Date Pool
Principal Balance, the Servicer, 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 9.01 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 Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________.
______________________________________
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
FORM OF CLASS R CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN TWO "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 TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR LETTER IN THE FORM OF
EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (i) THE TRUSTEE
RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I-1 OR A NON-RULE 144A
INVESTMENT LETTER IN THE FORM OF EXHIBIT I-2 TO THE AGREEMENT REFERRED TO HEREIN
OR (ii) THE TRUSTEE 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
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE 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 TRUSTEE 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 OR
ARRANGEMENT 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, SECTION 4975 OF THE CODE OR
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 : October 1, 2006
First Distribution Date : November 27, 2006
Percentage Interest of :
this Certificate
("Denomination") 100%
CUSIP : 36245C AQ 5
ISIN : US36245CAQ50
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2006-S6
Mortgage Pass-Through Certificates, Series 2006-S6
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 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 Servicer 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 specified above of any monthly distributions due to the
Class R Certificates pursuant to a Pooling and Servicing Agreement dated as of
October 1, 2006 (the "Agreement") among GS Mortgage Securities Corp., as
depositor (the "Depositor"), Ocwen Loan Servicing, LLC, as servicer (the
"Servicer"), and Deutsche Bank National Trust Company, as trustee (the
"Trustee"). 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 Trustee for such purposes.
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 Trustee shall require the transferor to execute a transferor
certificate (in substantially the form attached to the Pooling and Servicing
Agreement) and deliver either (i) a Rule 144A Letter or a Non-Rule 144A
Investment Letter, in either case substantially in the form attached to the
Agreement, or (ii) a written Opinion of Counsel to the Trustee 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 Class R Certificate shall be made unless the
Trustee shall have received a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
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 Depositor, the Servicer 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, Section 4975 of the
Code or 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 Trustee 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 Trustee shall not register the Transfer of this
Certificate unless, in addition to the certificates required to be delivered to
the Trustee under Section 5.02(b) of the Agreement, the Trustee shall have been
furnished with a Transfer Affidavit of the initial owner or the proposed
transferee in the form attached as Exhibit G 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 Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
By:____________________________________
Authenticated:
By:___________________________________________________________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2006-S6
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2006-S6 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 Trustee 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 Trustee.
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 Trustee 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 Trustee for such
purposes.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Servicer 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 Trustee upon surrender of this Certificate for
registration of transfer at the offices designated by the Trustee for such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Trustee 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 Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor and the Trustee and any agent of the Depositor or the
Trustee may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and neither the Depositor, the Trustee, nor any
such agent shall be affected by any notice to the contrary.
On any Distribution Date (i) 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 Servicer (at the direction of the Majority Class X
Certificateholder) or (ii) on which the aggregate Stated Principal Balance of
the Mortgage Loans is less than or equal to 5% of the Cut-off Date Pool
Principal Balance, the Servicer, 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 9.01 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 Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________.
______________________________________
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-1
FORM OF CLASS X CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
DIRECT OR INDIRECT 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.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR LETTER IN THE FORM OF
EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (i) THE TRUSTEE
RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I-1 OR A NON-RULE 144A
INVESTMENT LETTER IN THE FORM OF EXHIBIT I-2 TO THE AGREEMENT REFERRED TO HEREIN
OR (ii) THE TRUSTEE 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 TRUSTEE 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
OR ARRANGEMENT 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
THAT 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 TRUSTEE, TO THE EFFECT THAT THE PURCHASE AND 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 TRUSTEE, THE DEPOSITOR OR THE SERVICER 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 OR OTHER PLAN OR
ARRANGEMENT 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
TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
Certificate No. :
Cut-off Date : October 1, 2006
First Distribution Date : November 27, 2006
Percentage Interest of
this Certificate
("Denomination") : 100%
Notional Balance : $[____________]
CUSIP : 36245C AN 2
ISIN : US36245CAN20
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2006-S6
Mortgage Pass-Through Certificates, Series 2006-S6
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 a Notional Balance
equal to the aggregate Stated Principal Balance of the Mortgage Loans. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Servicer 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 Xxxxxxx, Xxxxx & Co. is the registered owner of
the Percentage Interest specified above of any monthly distributions due to the
Class X Certificates pursuant to a Pooling and Servicing Agreement dated as of
October 1, 2006 (the "Agreement") among GS Mortgage Securities Corp., as
depositor (the "Depositor"), Ocwen Loan Servicing, LLC, as servicer (the
"Servicer"), and Deutsche Bank National Trust Company, as trustee (the
"Trustee"). 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 Trustee for such purposes.
No transfer of a Class X Certificate shall be made unless the
Trustee shall have received (i) a representation letter from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
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, (ii) if the transferee is an insurance
company, a representation letter that the transferee is using the assets of its
general account and that the purchase and holding of this Certificate are
covered under Section I and III of Prohibited Transaction Class Exemption 95-60
or (iii) an Opinion of Counsel satisfactory to the Trustee and the Servicer, to
the effect that the purchase and 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 Trustee, the Depositor
or the Servicer to any obligation in addition to those expressly undertaken in
the Agreement or to any liability, which representation letter or Opinion of
Counsel shall not be an expense of the Trustee, the Depositor, the Servicer 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, Section 4975 of the Code or 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.
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 Trustee shall require the transferor to execute a transferor
certificate (in substantially the form attached to the Pooling and Servicing
Agreement) and deliver either (i) a Rule 144A Letter or a Non-Rule 144A
Investment Letter, in either case substantially in the form attached to the
Agreement, or (ii) a written Opinion of Counsel to the Trustee 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.
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 Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
By:____________________________________
Authenticated:
By:___________________________________________________________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2006-S6
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2006-S6 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 Trustee 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 Trustee.
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 Trustee 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 Trustee for such
purposes.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Servicers 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 Trustee upon surrender of this Certificate for
registration of transfer at the offices designated by the Trustee for such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Trustee 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 Trustee 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 Trustee and any agent of the
Depositor or the Trustee may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, nor any such agent shall be affected by any notice to the contrary.
On any Distribution Date (i) 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 Servicer (at the direction of the Majority Class X
Certificateholder) or (ii) on which the aggregate Stated Principal Balance of
the Mortgage Loans is less than or equal to 5% of the Cut-off Date Pool
Principal Balance, the Servicer, 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 9.01 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 Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________.
______________________________________
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 X-1 CERTIFICATE
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR LETTER IN THE FORM OF
EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (i) THE TRUSTEE
RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I-1 OR A NON-RULE 144A
INVESTMENT LETTER IN THE FORM OF EXHIBIT I-2 TO THE AGREEMENT REFERRED TO HEREIN
OR (ii) THE TRUSTEE 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 TRUSTEE 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
OR ARRANGEMENT 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
THAT 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 TRUSTEE, TO THE EFFECT THAT THE PURCHASE AND 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 TRUSTEE, THE DEPOSITOR OR THE SERVICER 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 OR OTHER PLAN OR
ARRANGEMENT 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
TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
Certificate No. :
Cut-off Date : October 1, 2006
First Distribution Date : November 27, 2006
Initial Certificate
Balance of this
Certificate
("Denomination") : 0.00
Initial Certificate
Balances of all
Certificates of this Class : 0.00
CUSIP : 36245C AP 7
ISIN : US36245CAP77
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2006-S6
Mortgage Pass-Through Certificates, Series 2006-S6
Class X-1
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-1 Certificate is entitled to
distributions with respect to certain Mortgage Loans that are initially assets
of the Trust. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicer 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 any monthly
distributions due to the Class X-1 Certificates pursuant to a Pooling and
Servicing Agreement dated as of October 1, 2006 (the "Agreement") among GS
Mortgage Securities Corp., as depositor (the "Depositor"), Ocwen Loan Servicing,
LLC, as servicer (the "Servicer"), and Deutsche Bank National Trust Company, as
trustee (the "Trustee"). 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-1
Certificate at the offices designated by the Trustee for such purposes.
No transfer of a Class X-1 Certificate shall be made unless the
Trustee shall have received (i) a representation letter from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
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 (ii) if the transferee is an insurance
company, a representation letter that the transferee is using the assets of its
general account and that the purchase and holding of this Certificate are
covered under Section I and III of Prohibited Transaction Class Exemption 95-60
or (iii) an Opinion of Counsel satisfactory to the Trustee, to the effect that
the purchase and 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 Trustee, the Depositor or the Servicer
to any obligation in addition to those expressly undertaken in the Agreement or
to any liability, which representation letter or Opinion of Counsel shall not be
an expense of the Trustee, the Depositor, the Servicer 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, Section 4975 of the
Code or 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.
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 Trustee shall require the transferor to execute a transferor
certificate (in substantially the form attached to the Pooling and Servicing
Agreement) and deliver either (i) a Rule 144A Letter or a Non-Rule 144A
Investment Letter, in either case substantially in the form attached to the
Agreement, or (ii) a written Opinion of Counsel to the Trustee 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.
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 Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
By:____________________________________
Authenticated:
By:___________________________________________________________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2006-S6
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2006-S6 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 assets of the Trust Fund for payment hereunder
and that the Trustee 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 Trustee.
Pursuant to the terms of the Agreement, a distribution will be made
to the Person in whose name this Certificate is registered at the close of
business on the applicable Record Date. 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 Trustee 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 Trustee for such
purposes.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Servicer 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 Trustee upon surrender of this Certificate for
registration of transfer at the offices designated by the Trustee for such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Trustee 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 Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor, the Servicer and the Trustee and any agent of the
Depositor or the Trustee may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, nor any such agent shall be affected by any notice to the contrary.
On any Distribution Date (i) 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 Servicer (at the direction of the Majority Class X
Certificateholder) or (ii) on which the aggregate Stated Principal Balance of
the Mortgage Loans is less than or equal to 5% of the Cut-off Date Pool
Principal Balance, the Servicer, 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 9.01 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 Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________.
______________________________________
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 INITIAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Servicer]
[Trustee]
______________________
______________________
Re: Pooling and Servicing Agreement among GS Mortgage Securities Corp.,
as Depositor, Ocwen Loan Servicing, LLC, as Servicer, and Deutsche
Bank National Trust Company, as Trustee, XXXXX Xxxxx, 0000-X0
Xxxxxxxxx:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
a Trustee, for each Mortgage Loan listed in the Mortgage Loan Schedule as to
which the undersigned is identified as Trustee (other than any Mortgage Loan
listed in the attached schedule of exceptions), 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 Trustee 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 Trustee 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
collectability, insurability, effectiveness or suitability of any such Mortgage
Loan or the perfection or priority of any Mortgage. Notwithstanding anything
herein to the contrary, the Trustee 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.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By:____________________________________
Name:
Title:
EXHIBIT F
FORM OF DOCUMENT CERTIFICATION
AND EXCEPTION REPORT OF Trustee
[date]
[Depositor]
[Servicer]
[Trustee]
_____________________
_____________________
Re: Pooling and Servicing Agreement among GS Mortgage Securities Corp.,
as Depositor, Ocwen Loan Servicing, LLC, as Servicer, and Deutsche
Bank National Trust Company, as Trustee, XXXXX Xxxxx, 0000-X0
Xxxxxxxxx:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
a Trustee, 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.
(iii) Except with respect to each MERS Designated Mortgage Loan, an
executed Assignment of Mortgage in the form provided in Section 2.01 of
the Pooling and Servicing Agreement; or, if the applicable Original Loan
Seller or the Sponsor, as applicable, has certified or the Trustee has
actual knowledge that the related Mortgage has not been returned from the
applicable recording office, 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 showing a complete chain of assignment from the originator to the
last endorsee.
(v) The original or duplicate original 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) and (12) of the
Mortgage Loan Schedule and items (1), (2) and (13) of the Data Tape Information
accurately reflects information set forth in the Custodial File.
The Trustee 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 Trustee 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 collectability, insurability, effectiveness or
suitability of any such Mortgage Loan or the perfection or priority of any
Mortgage. Notwithstanding anything herein to the contrary, the Trustee 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.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By:____________________________________
Name:
Title:
EXHIBIT G
RESIDUAL TRANSFER AFFIDAVIT
GSAMP Trust 2006-S6,
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 October 1, 2006 (the "Agreement"), among GS Mortgage Securities Corp., as
depositor (the "Depositor"), Ocwen Loan Servicing, LLC, as servicer (the
"Servicer"), and Deutsche Bank National Trust Company, as trustee (the
"Trustee"). 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 Trustee.
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 Trustee a certificate substantially in the
form set forth as Exhibit H 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).
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,
(iv) 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;
(v) 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;
(vi) 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
(vii) 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 or arrangement 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 H
FORM OF TRANSFEROR CERTIFICATE
__________, 20__
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Deutsche Bank National Trust Company,
as Trustee
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000-0000
Re: GSAMP Trust, 2006-S6, Mortgage Pass-Through Certificates, 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 I-1
FORM OF RULE 144A LETTER
____________, 20__
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Deutsche Bank National Trust Company,
as Trustee
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000-0000
Re: GSAMP Trust 2006-S6, 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 (i) 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, (ii) for Certificates other than a Class R Certificate, (A) we
are 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
that the purchase and holding of such Certificates are covered under Sections I
and III of PTCE 95-60 or (B) we have provided the Opinion of Counsel required in
Section 5.02 of the Pooling and Servicing Agreement, (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 I-1
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.
______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, as
amended.
______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 Transferor
By:____________________________________
Name:
Title:
Date:
--------------------------
(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.
ANNEX 2 TO EXHIBIT I-1
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 Transferor
By:____________________________________
Name:
Title:
IF AN ADVISER:
____________________________________
Print Name of Buyer
Date:
EXHIBIT I-2
FORM OF INVESTMENT LETTER (NON RULE 144A)
---------------------
Date
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Deutsche Bank National Trust Company
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Re: GSAMP Trust 2006-S6, Mortgage Pass Through Certificates, Series
2006-S6, 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 "Quicken 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 (i) 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, (ii) for Certificates
other than a Class R Certificate, (A) we are 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 that the purchase and
holding of such Certificates are covered under Sections I and III of PTCE 95-60
or (B) we have provided the Opinion of Counsel required in Section 5.02 of the
Pooling and Servicing Agreement, (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.
Very truly yours,
____________________________________
Print Name of Transferee
By:____________________________________
Authorized Officer
EXHIBIT J
FORM OF REQUEST FOR RELEASE
(for Trustee)
To: [Address]
In connection with the administration of the Mortgage Loans held by
you as Trustee 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 Servicer 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 of the Pooling and
Servicing Agreement. (The Servicer 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 Servicer 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 Trustee please acknowledge your receipt by signing in the space indicated
below, and returning this form, if requested.
Address to which Trustee should
Deliver the Trustee's Mortgage File: _____________________________________
_____________________________________
_____________________________________
By:____________________________________
(authorized signer)
Issuer:_____________________________
Address:____________________________
Date:_______________________________
Acknowledged receipt by:
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By:____________________________________
Name:
Title:
Date
EXHIBIT K
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 Trustee:
(i) the original Mortgage Note (except for up to [__]% of the
Mortgage Notes for which there is a lost note affidavit and a copy
of the Mortgage Note) bearing all intervening endorsements, endorsed
"Pay to the order of _________, without recourse" and signed in the
name of the last endorsee. To the extent that there is no room on
the face of the Mortgage Notes for endorsements, the endorsement may
be contained on an allonge unless state law does not so allow and
the Trustee has been advised by the Original Loan Seller that state
law does not so allow. If the Mortgage Loan was acquired by the
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) with respect to any Mortgage Loan, the original of any
guarantee executed in connection with the Mortgage Note;
(iii) (A) with respect to the American Home Mortgage Loans,
Fremont Mortgage Loans, Quicken Mortgage Loans and Conduit Mortgage
Loans, the original Mortgage with evidence of recording thereon or a
certified true copy of such Mortgage submitted for recording. If in
connection with any Mortgage Loan, American Home with respect to the
American Home Mortgage Loans, Fremont with respect to the Fremont
Mortgage Loans, Quicken with respect to the Quicken Mortgage Loans,
or the Sponsor with respect to the Conduit Mortgage Loans, as
applicable, 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, American Home with
respect to the American Home Mortgage Loans, Fremont with respect to
the Fremont Mortgage Loans, Quicken with respect to the Quicken
Mortgage Loans, or the Sponsor with respect to the Conduit Mortgage
Loans, as applicable, shall deliver or cause to be delivered to the
Trustee a photocopy of such Mortgage, together with (i) in the case
of a delay caused by the public recording office, an officer's
certificate of American Home with respect to the American Home
Mortgage Loans, Fremont with respect to the Fremont Mortgage Loans,
Quicken with respect to the Quicken Mortgage Loans, or the Sponsor
with respect to the Conduit Mortgage Loans, as applicable (or
evidence of certification on the face of such photocopy of such
Mortgage) or in the case of American Home, Fremont, Quicken or the
Sponsor, certified by the title company, escrow agent, or closing
attorney stating that such Mortgage has been dispatched to the
appropriate public recording office for recordation and that the
original recorded Mortgage or a copy of such Mortgage certified by
such public recording office to be a true and complete copy of the
original recorded Mortgage will be promptly delivered to the Trustee
upon receipt thereof by American Home with respect to the American
Home Mortgage Loans, Fremont with respect to the Fremont Mortgage
Loans, Quicken with respect to the Quicken Mortgage Loans, or the
Sponsor with respect to the Conduit Mortgage Loans, as applicable;
(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 shall deliver or cause
to be delivered to the Trustee a photocopy of such intervening
assignment, together with (1) in the case of a delay caused by the
public recording office, an officer's certificate of the applicable
Original Loan Seller (or evidence of certification on the face of
such photocopy of such intervening assignment of mortgage) or
certified by the title company, escrow agent, or closing attorney
stating that such intervening assignment of mortgage has been
dispatched to the appropriate public recording office for
recordation and that such original recorded intervening assignment
of mortgage or a copy of such intervening assignment of mortgage
certified by the appropriate public recording office to be a true
and complete copy of the original recorded intervening assignment of
mortgage will be promptly delivered to the Trustee upon receipt
thereof by the applicable Original Loan Seller; or (2) 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 a copy of) the mortgagee policy of
title insurance or, in the event such original title policy is
unavailable, a certified true copy of the related policy binder or
commitment for title certified to be true and complete by the title
insurance company; and
(viii) a security agreement, chattel mortgage or equivalent
document executed in connection with the Mortgage (if provided).
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 L
[RESERVED]
EXHIBIT M
FORM OF CERTIFICATION TO BE PROVIDED WITH FORM-10-K
Re: GSAMP Trust 2006-S6 (the "Trust") Mortgage Pass-Through
Certificates, Series 2006-S6, issued pursuant to the Pooling and
Servicing Agreement, dated as of October 1, 2006 (the "Pooling and
Servicing Agreement"), among GS Mortgage Securities Corp., as
depositor (the "Depositor"), Ocwen Loan Servicing, LLC, as servicer
(the "Servicer"), and Deutsche Bank National Trust Company, as
trustee (the "Trustee")
I, [identify the certifying individual], certify that:
1. I have reviewed this report on Form 10-K and all reports on Form
10-D required to be filed in respect of the period covered by this report on
Form 10-K of the Trust;
2. Based on my knowledge, the Exchange Act periodic reports, taken
as a whole, do not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with respect
to the period covered by this report;
3. Based on my knowledge, all of the distribution, servicing and
other information required to be provided under Form 10-D for the period covered
by this report is included in the Exchange Act periodic reports;
4. Based on my knowledge and the servicer compliance statements
required in this report under Item 1123 of Regulation AB, and except as
disclosed in the Exchange Act periodic reports, the Servicer has fulfilled its
obligations under the Pooling and Servicing Agreement in all material respects;
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 for asset-backed securities
required to be included in this report in accordance with Item 1122 of
Regulation AB and Exchange Act Rules 13a-18 and 15d-18 have been included as an
exhibit to this report, except as otherwise disclosed in this report. Any
material instances of noncompliance described in such reports have been
disclosed in this report on Form 10-K.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: the Trustee
and the Servicer.
Date:__________________________________
[Signature]
[Title]
EXHIBIT N
FORM OF TRUSTEE CERTIFICATION TO BE PROVIDED TO DEPOSITOR
Re: GSAMP Trust 2006-S6 (the "Trust") Mortgage Pass-Through
Certificates, Series 2006-S6, issued pursuant to the Pooling and
Servicing Agreement, dated as of October 1, 2006 (the "Pooling and
Servicing Agreement"), among GS Mortgage Securities Corp., as
depositor (the "Depositor"), Ocwen Loan Servicing, LLC, as servicer
(the "Servicer"), and Deutsche Bank National Trust Company, as
trustee (the "Trustee")
I, [identify the certifying individual], a [title] of Deutsche Bank National
Trust Company certify 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 (the "Annual
Report") for the fiscal year [___], and all reports on Form 10-D containing
distribution reports filed in respect of periods included in the year covered by
the Annual Report (collectively with the Annual Report, the "Reports"), of the
Trust;
2. Based on my knowledge, without independent investigation or
inquiry, the information in the Monthly Statements (excluding information
provided, or based on information provided, by the Servicer or any servicer) and
those items on Exhibit S attached to the Pooling and Servicing Agreement which
indicate the Monthly Statement (excluding information provided, or based on
information provided, by the Servicer or any servicer) or the Trustee as the
responsible party, 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 light of the circumstances under which such statements were made, not
misleading as of the last day of the period covered by the Annual Report; and
3. Based on my knowledge, the distribution information required to
be provided by the Trustee and the servicing information provided to the Trustee
by the Servicer under the Pooling and Servicing Agreement is included in the
Monthly Statements.
Date:__________________________________
DEUTSCHE BANK NATIONAL TRUST COMPANY
By:____________________________________
Name:
Title:
EXHIBIT O
FORM OF SERVICER CERTIFICATION TO BE PROVIDED TO DEPOSITOR
Re: GSAMP Trust 2006-S6 (the "Trust") Mortgage Pass-Through
Certificates, Series 2006-S6, issued pursuant to the Pooling and
Servicing Agreement, dated as of October 1, 2006 (the "Pooling and
Servicing Agreement"), among GS Mortgage Securities Corp., as
depositor (the "Depositor"), Ocwen Loan Servicing, LLC, as servicer
(the "Servicer"), and Deutsche Bank National Trust Company, as
trustee (the "Trustee")
I, [name of certifying individual], a duly elected and acting officer of Ocwen
Loan Servicing, LLC (the "Servicer"), certify pursuant to Section 8.12 of the
Pooling and Servicing Agreement to the Depositor and the Trustee, each Person,
if any, who "controls" the Depositor or the Trustee within the meaning of the
Securities Act of 1933, as amended, and their respective officers and directors,
with respect to the calendar year immediately preceding the date of this
Certificate (the "Relevant Year"), as follows:
1. For purposes of this Certificate, "Relevant Information" means
the information in the certificate provided pursuant to Section 3.22 of the
Pooling and Servicing Agreement (the "Annual Compliance Certificate") for the
Relevant Year and the information in all Servicer Remittance Reports provided by
the Servicer during the Relevant Year. Based on my knowledge, the Relevant
Information, taken as a whole, does not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein
which is necessary to make the statements made therein, in light of the
circumstances under which such statements were made, not misleading as of the
last day of the Relevant Year.
2. The Relevant Information has been provided to those Persons
entitled to receive it.
3. I am responsible for reviewing the activities performed by the
Servicer and based on my knowledge and the compliance review conducted in
preparing the Annual Compliance Certificate, and except as disclosed in the
Exchange Act periodic reports, the Servicer has fulfilled its obligations under
the Pooling and Servicing Agreement in all material respects.
DATED as of ________, 200__.
______________________________________
[Name]
[Title]
EXHIBIT P
FORM OF POWER OF ATTORNEY
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO
OCWEN LOAN SERVICING, LLC
0000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx Xxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Attn: _________________________________
LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that Deutsche Bank National Trust Company, a
national banking association organized and existing under the laws of the United
States, having its principal place of business at 0000 Xxxx Xx. Xxxxxx Xxxxx,
Xxxxx Xxx, Xxxxxxxxxx, 00000, as Trustee (the "Trustee") pursuant to that
Pooling and Servicing Agreement dated as of October 1, 2006 (the "Agreement")
among GS Mortgage Securities Corp., as depositor (the "Depositor"), Ocwen Loan
Servicing, LLC, as servicer (the "Servicer"), and Deutsche Bank National Trust
Company, as trustee (the "Trustee"), hereby constitutes and appoints the
Servicer, by and through the Servicer's officers, the Trustee's true and lawful
Attorney-in-Fact, in the Trustee's name, place and stead and for the Trustee's
benefit, in connection with all mortgage loans serviced by the Servicer pursuant
to the Agreement solely for the purpose of performing such acts and executing
such documents in the name of the Trustee 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 Trustee 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 Ocwen Loan Servicing, LLC is
acting as the Servicer.
This Appointment shall apply only to the following enumerated transactions and
nothing herein or in the Agreement shall be construed to the contrary:
1. The modification or re-recording of a Mortgage or Deed of Trust,
where said modification or re-recording is solely 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; provided that (i) said modification or re-recording, in either
instance, does not adversely affect the lien of the Mortgage or Deed of Trust as
insured and (ii) otherwise conforms to the provisions of the Agreement.
2. The subordination of the lien of a Mortgage or Deed of Trust to a
mortgage or deed of trust replacing a prior mortgage or deed of trust in
accordance with Section 3.01(d) of the Agreement or 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:
(a) the substitution of trustee(s) serving under a Deed of Trust, in
accordance with state law and the Deed of Trust;
(b) the preparation and issuance of statements of breach or
non-performance;
(c) the preparation and filing of notices of default and/or notices of
sale;
(d) the cancellation/rescission of notices of default and/or notices of
sale;
(e) the taking of deed in lieu of foreclosure; and
(f) 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.
9. With respect to the sale of property acquired through a
foreclosure or deed-in lieu of foreclosure, including, without limitation, the
execution of the following documentation:
(a) listing agreements;
(b) purchase and sale agreements;
(c) grant/warranty/quit claim deeds or any other deed causing the
transfer of title of the property to a party contracted to purchase
same;
(d) escrow instructions; and
(e) any and all documents necessary to effect the transfer of property.
10. The modification or amendment of escrow agreements established
for repairs to the mortgaged property or reserves for replacement of personal
property.
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 be effective as of
_________.
This appointment is to be construed and interpreted as a limited power of
attorney. The enumeration of specific items, rights, acts or powers herein is
not intended to, nor does it give rise to, and it is not to be construed as a
general power of attorney.
Nothing contained herein shall (i) limit in any manner any indemnification
provided by the Servicer to the Trustee under the Agreement, or (ii) be
construed to grant the Servicer the power to initiate or defend any suit,
litigation or proceeding in the name of Deutsche Bank National Trust Company
except as specifically provided for herein.
This limited power of attorney is not intended to extend the powers granted to
the Servicer under the Agreement or to allow the Servicer to take any action
with respect to Mortgages, Deeds of Trust or Mortgage Notes not authorized by
the Agreement.
Subject to the limitations in Section 6.05 of the Agreement, the Servicer hereby
agrees to indemnify and hold the Trustee and its directors, officers, employees
and agents harmless from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever incurred by reason or result of
or in connection with the exercise by the Servicer of the powers granted to it
hereunder. The foregoing indemnity shall survive the termination of this Limited
Power of Attorney and the Agreement or the earlier resignation or removal of the
Trustee under the Agreement.
This Limited Power of Attorney is entered into and shall be governed by the laws
of the State of New York, without regard to conflicts of law principles of such
state.
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, Deutsche Bank National Trust Company, as Trustee has caused
its corporate seal to be hereto affixed and these presents to be signed and
acknowledged in its name and behalf by a duly elected and authorized signatory
this ___________ day of ____________.
Deutsche Bank National Trust Company, as
Trustee
By:____________________________________
Name:
Title:
Acknowledged and Agreed
Ocwen Loan Servicing, LLC
By:____________________________________
Name:
Title:
STATE OF CALIFORNIA )
) ss.:
COUNTY OF ___________ )
On ________________, _____, before me, the undersigned, a Notary
Public in and for said state, personally appeared
________________________________ of Deutsche Bank National Trust Company, as
Trustee for GSAMP Trust 2006-S6, Mortgage Pass-Through Certificates, Series
2006-S6, 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, State of California
EXHIBIT 10.1
EXHIBIT Q-1
AMERICAN HOME AGREEMENTS
ASSIGNMENT AND RECOGNITION AGREEMENT
This Assignment and Recognition Agreement, dated October 20, 2006
("Agreement"), among Xxxxxxx Xxxxx Mortgage Company (the "Assignor"), GS
Mortgage Securities Corp. (the "Assignee"), and American Home Mortgage Corp.
(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 and Conveyance
1. The Assignor hereby conveys, sells, grants, transfers and assigns to
the Assignee all of the right, title and interest 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")
and (b) except as described below, that certain Amended and Restated Flow
Mortgage Loan Purchase and Warranties Agreement (the "Purchase Agreement"),
dated as of June 1, 2006, among the Assignor, as purchaser (the "Purchaser"),
and the Company, as seller and the Purchase Price and Terms Letter (the
"Purchase Price and Terms Letter"), dated as of June 7, 2006, among the
Purchaser, the Company and American Home Mortgage Servicing, Inc., solely
insofar as the Purchase Agreement and the Purchase Price and Terms Letter relate
to the Mortgage Loans.
The Assignor specifically reserves and does not assign to the Assignee
hereunder 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 which are not the Mortgage Loans set forth on the Mortgage
Loan Schedule and are not the subject of this 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 GSAMP Trust 2006-S6 (the "Trust")
created pursuant to a Pooling and Servicing Agreement, dated as of October 1,
2006 (the "Pooling Agreement"), among the Assignee, the Assignor, Ocwen Loan
Servicing, LLC, as servicer (including its successors in interest and any
successor servicers under the Pooling Agreement, the "Servicer"), and Deutsche
Bank National Trust Company, as trustee (including its successors in interest
and any successor trustees under the Pooling Agreement, the "Trustee"). The
Company hereby acknowledges and agrees that from and after the date hereof (i)
the Trust will be the owner of the Mortgage Loans, (ii) the Company shall look
solely to the Trust (including the Trustee and the Servicer acting on the
Trust's behalf) for performance of any obligations of the Assignor insofar as
they relate to the Mortgage Loans, (iii) the Trust (including the Trustee and
the Servicer 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 Section 6 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, and (iv)
all references to the Purchaser, the Custodian or the Bailee under the Purchase
Agreement insofar as they relate to the Mortgage Loans, shall be deemed to refer
to the Trust (including the Trustee and the Servicer acting on the Trust's
behalf). 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 Purchase Price and Terms Letter 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 Purchase Price and
Terms Letter with respect to the Mortgage Loans without the prior written
consent of the Trustee and the Servicer.
Representations and Warranties of the Company
3. The Company warrants and represents to 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 incorporation;
(b) The Company has full corporate power and authority to execute, deliver
and perform its obligations under this Agreement and has full corporate power
and authority to perform its obligations under 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 their
property is subject. The execution, delivery and performance by the Company of
this Agreement have been duly authorized by all necessary corporate action 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; and
(d) There is no action, suit, proceeding or investigation pending or, to
the best of the Company's knowledge, threatened against the Company, before any
court, administrative agency or other tribunal, which would draw into question
the validity of this Agreement or the Purchase Agreement, or which, either in
any one instance or in the aggregate, would 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.
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 Section 9.01 and
Section 9.02 of the Purchase Agreement are true and correct as of the date
hereof as if such representations and warranties were made on the date hereof
unless otherwise specifically stated in such representations and warranties.
Remedies for Breach of Representations and Warranties
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 and the Master Servicer 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).
6. In the event a Mortgage Loan is required to be repurchased pursuant to
Section L. of the Purchase Price and Terms Letter, 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 M. of the Purchase Price and Terms Letter exceeds such
Repurchase Price.
Representations and Warranties of the Assignor
7. 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 7(d) the following definitions
shall apply:
Covered Loan: A Mortgage Loan categorized as Covered pursuant to
Appendix E of the then current Standard & Poor's Glossary.
Home Loan: A Mortgage Loan categorized as Home Loan pursuant to
Appendix E of the then current 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 the then current 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
8. 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 7 hereof that materially and adversely affects the value of any Mortgage
Loan 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.
Miscellaneous
9. 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.
10. 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.
11. This Agreement shall inure to the benefit of (i) the successors and
assigns of the parties hereto and (ii) the Trust (including the Trustee and the
Servicer acting on the Trust's behalf). Any entity into which 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.
12. Each of this Agreement and the Purchase Agreement shall survive the
conveyance of the Mortgage Loans and the assignment of the Purchase Agreement
(to the extent assigned hereunder) by Assignor to Assignee and by Assignee to
the Trust and nothing contained herein shall supersede or amend the terms of the
Purchase Agreement.
13. 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.
14. In the event that any provision of this Agreement conflicts with any
provision of the Purchase Agreement with respect to the Mortgage Loans, the
terms of this Agreement shall control.
15. 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.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized officers as of the date first above written.
AMERICAN HOME MORTGAGE CORP.,
as Company
By: /s/ Xxxx X. Xxxx
-------------------------------------
Name: Xxxx X. Xxxx
Its: Executive Vice President
General Counsel & Secretary
XXXXXXX SACHS MORTGAGE COMPANY, as
Assignor
By: XXXXXXX XXXXX REAL ESTATE FUNDING
CORP., a New York Corporation, as
General Partner
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Name: Xxxx X. Xxxxx
Its: Managing Director
GS MORTGAGE SECURITIES CORP.,
as Assignee
By: /s/ Xxxxxxxx Xxxx
-------------------------------------
Name: Xxxxxxxx Xxxx
Its: Vice President
EXHIBIT 10.2
================================================================================
AMENDED AND RESTATED FLOW MORTGAGE LOAN PURCHASE
AND WARRANTIES AGREEMENT
XXXXXXX SACHS MORTGAGE COMPANY,
Purchaser
AMERICAN HOME MORTGAGE CORP.,
Seller
Dated as of June 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 Early Payment
Defaults.....................................................
Subsection 9.05 Purchasers 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; 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 SELLERS OFFICERS 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 ORIGINATORS UNDERWRITING GUIDELINES
EXHIBIT I ASSIGNMENT AND CONVEYANCE
EXHIBIT J 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 June 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 American Home
Mortgage Corp., a New York corporation, having an office at 000 Xxxxxxxxxxx
Xxxx, Xxxxxxxx, Xxx Xxxx 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 Purchase and Warranties Agreement, dated as of August 1, 2005, 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 conventional adjustable and fixed 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 related Closing Dates.
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.
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;
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; and
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.
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 Mae Transfer or a Xxxxxxx 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.
Covered Loan: A Mortgage Loan categorized as Covered pursuant to
Appendix E of Standard & Poor's Glossary.
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: Deutsche Bank National Trust Company (or such other
Custodian as specified in the related Purchase Price and Terms Agreement), or
its successor 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.
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.
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 Mae Guides: The Xxxxxx Xxx Selling Guide and the Xxxxxx Mae
Servicing Guide and all amendments or additions 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.
Xxxxxxx Mac: The Federal Home Loan Mortgage Corporation, or any
successor thereto.
Xxxxxxx 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 ("HOEPA"), (b) with an "annual percentage rate" or
total "points and fees" payable by the related Mortgagor (as each such term is
calculated under HOEPA) that exceed the thresholds set forth by HOEPA and its
implementing regulations, including 12 C.F.R. ss. 226.32(a)(1)(i) and (ii), (c)
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
(d) a Mortgage Loan 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 a 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
American Home Mortgage Servicing, Inc., a Maryland corporation and Affiliate of
the Seller (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
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 Purchaser 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 Remittance Rate: With respect to each Mortgage Loan,
the annual rate of interest payable to the Purchaser, which shall be equal to
the related Mortgage Interest Rate minus the related Servicing Fee Rate.
Mortgage Loan Schedule: The schedule of Mortgage Loans, with respect
to each Mortgage Loan Package, attached as Exhibit 1 to the related Assignment
and Conveyance, setting forth certain information with respect to each Mortgage
Loan in the related Mortgage Loan Package, which must include at a minimum: (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.
Officer's Certificate: A certificate signed by the Chairman of the
Board or the Vice Chairman of the Board or a President or an Executive 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 an
employee of the Seller, reasonably acceptable to the Purchaser.
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 (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 (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, Moody's 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 solely 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.
Securities Exchange Act: The Securities Exchange Act of 1934, 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: American Home Mortgage Corp., 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 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 Sections 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.
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 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 be
reasonably acceptable to the Purchaser.
Such examination of the Mortgage Files may be made by the Purchaser
or its designee at any reasonable time before 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 is unacceptable to
the Purchaser for any reason, such Mortgage Loan 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 Xxxxxx Xxx or Xxxxxxx Mac, 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 the Xxxxxx Mae Guides. 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 Xxxxxx Xxx Guides.
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
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 Section 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 Seller. The program is designed
to ensure that the Mortgage Loans are originated and serviced in accordance with
Accepted Servicing Standards and the Underwriting Guidelines.
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 shall cause the Interim Servicer to execute the Interim Servicing
Agreement on the date hereof. Pursuant to the Interim Servicing Agreement, the
Seller shall cause the Interim Servicer to 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 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 Interim Servicer'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 Interim
Servicer.
(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 Interim Servicer 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 any 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 Interim Servicer 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 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 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
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
New York and has all licenses necessary to carry on its business as now being
conducted, except where the failure to be so licensed or qualified would not
have a material adverse effect on the Seller, 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, except as
enforceability may be limited by (i) bankruptcy, insolvency, liquidation,
receivership, moratorium, reorganization or other similar laws affecting the
enforcement of creditors' rights, or (ii) general principles of equity,
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 (i) the Seller's charter or
by-laws or (ii) 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, except, in the case of
clause (ii), any defaults or breaches that would not, either in any one instance
or in the aggregate, result in a material adverse effect on the Seller, 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 a material 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 knowledge of the Seller, 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, would 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 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 2 to the Assignment and Conveyance 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;
(l) [Reserved];
(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 Seller'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 Purchaser as the 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 Purchaser 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 in the Xxxxxx Xxx Guides or by
Xxxxxxx 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 Xxxxxxx 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 Mortgagor'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 Loans, including, without limitation, any provisions relating to
prepayment penalties, have been complied with in all material respects, the
consummation of the transactions contemplated hereby will not involve the
violation of any such laws or regulations in all material respects and the
Seller shall maintain in its possession, available for the Purchaser's
inspection, and shall deliver to the Purchaser upon demand, evidence of such
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, 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, (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 manufactured housing
unit that secures such Mortgage Loan either: (x) was the principal residence of
the Mortgagor or (y) was classified as real property under applicable state law,
this representation and warranty is a Deemed Material Breach Representation;
(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, 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 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, except as is required of the Seller (or its Affiliates) in its
capacity as Interim Servicer of such 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 legal 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 Xxxxxxx Mac and each such title insurance policy is
issued by a title insurer acceptable to Xxxxxx Mae or Xxxxxxx 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 has occurred 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
the Seller or 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. 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, 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 H). The Mortgage Note and Mortgage are on
forms acceptable to Xxxxxxx Mac or Xxxxxx Mae 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;
(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
Xxxxxxx 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 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;
(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. 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;
(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 Xxxxxxx 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. 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;
(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 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 Interim Servicer 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;
(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 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) 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 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. 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 Xxxxxx Mae's Selling Guide. 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 Xxxxxx Mae 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;
(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 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;
(fff) 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;
(ggg) 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;
(hhh) Underwriting Methodology. The methodology used in underwriting
the extension of credit for each Mortgage Loan does not rely solely 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 such as the Mortgagor's income, assets and 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.
This representation and warranty is a Deemed Material Breach Representation;
(iii) 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
Xxxxxx Mae's anti-predatory lending requirements as set forth in the Xxxxxx Mae
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 which miscellaneous
fees and charges, 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;
(jjj) 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;
(kkk) Litigation. The Mortgage Loan is not subject to any outstanding
litigation for fraud, origination, predatory lending, servicing or closing
practices; and
(lll) 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 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; and
(v) Principal Residence. The related Mortgaged Property is the
Mortgagor's principal residence. 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 forty-five (45) 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 by the Seller by the
earlier of forty-five (45) days from (i) the Seller's discovery of such breach
or (ii) the Seller's actual receipt of notice of such breach, the Seller shall,
at the Purchaser's option, repurchase such affected Mortgage Loan at the
Repurchase Price. Notwithstanding the above sentence, (i) within forty-five (45)
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 forty-five (45) days of
the earlier of either discovery by or notice to the Seller of such breach, all
of the Mortgage Loans materially and adversely affected by the breach 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 (except as provided in the second sentence of this paragraph
with respect to certain breaches for which no substitution is permitted 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 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 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 Determination Date for such month. The Seller shall
cause the Interim Servicer to 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. 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 Repurchase of Mortgage Loans With Early Payment
Defaults.
If the related Mortgagor fails to make any of the first two (2)
Monthly Payments 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 thirty (30) Business
Days.
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 during the Seller's normal business hours. The Seller will
provide information and otherwise cooperate with the due diligence reviews of
the Purchaser, its co-investors, its financial partners, 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.
Prior to the related Closing Date, 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.
Subsection 9.06 Prepayments in Full.
With respect to any Mortgage Loan which prepays in full during the
first three (3) months following the related Closing Date, the Seller shall pay
the Purchaser, within five (5) 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 actually received by the Purchaser.
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 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 H;
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 reasonably 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 form and substance mutually agreed to by
the Purchaser and the Seller.
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 Mae Transfer"); or
(ii) Xxxxxxx Mac (the "Xxxxxxx 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 Xxxxxxx 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 reasonably
acceptable to the Seller; and deliver an opinion of counsel in form and
substance satisfactory to the Purchaser and reasonably acceptable to the Seller
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 (b) make
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 requested 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 J 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 arising out of any untrue statement or omission or alleged
untrue statement or omission of a material fact contained in the information
provided by 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 or the
Interim Servicer 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.
In addition to the Seller's obligations specified in this Agreement
and the Interim Servicing Agreement, the Seller shall use commercially
reasonable efforts to cooperate with the Purchaser to provide any and all
policies, statements, reports, records, files, certifications and any other
information necessary in Purchaser's good faith determination to permit the
Purchaser to comply with the provisions of Regulation AB under the Securities
Act and the Securities Exchange Act, as the same may be amended from time to
time. The provisions set forth in the foregoing sentence shall survive the
Closing Date and shall not merge with the closing documents, but instead shall
be independently enforceable by the Purchaser.
Neither the Seller nor the Interim Servicer, nor any of the
Affiliates, officers, employees or agents of the Seller or 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 in connection with the
servicing of the Mortgage Loans pursuant to the Interim Servicing Agreement, or
for errors in judgment; provided, however, that this provision shall not protect
the Seller, the Interim Servicer or any such person against any the breach of
warranties or representations made herein or therein, or the failure to perform
its respective obligations in compliance with any standard of care set forth in
this Agreement or the Interim Servicing Agreement, or any liability which would
otherwise be imposed by reason of any breach of the terms and conditions of this
Agreement or the Interim Servicing Agreement. The Seller, the Interim Servicer
and any Affiliate, officer, employee or agent of the Seller or 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 Seller and the Interim Servicer shall not be under any obligation to appear
in, prosecute or defend any legal action which is not incidental to its
obligation to sell or duty to service the Mortgage Loans in accordance with this
Agreement and the Interim Servicing Agreement and which in its opinion may
result in its incurring any expenses or liability; provided, however, that the
Seller and the Interim Servicer may, with the consent of the Purchaser,
undertake any such action which it may deem necessary or desirable in respect of
this Agreement and the Interim Servicing Agreement and the rights and duties of
the parties hereto. In such event, the Seller and the Interim Servicer shall be
entitled to reimbursement from the Purchaser of the reasonable legal expenses
and costs of such action.
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, reasonable
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 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 Interim Servicer 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
related to the Seller's indemnification pursuant to Section 9 or the first
sentence of this Subsection 14.01, or is 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 members or stockholders of the Seller or the
public at large). Upon reasonable request by Purchaser, 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 (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:
American Home Mortgage Corp.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Xx.
(ii) if to the Purchaser:
Xxxxxxx Sachs Mortgage Company
000 0xx Xxxxxx Xxxxx, Xxxxx 000X
Xx. Xxxxxxxxxx, Xxxxxxx 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, and the assignee expressly assumes in writing the
Purchaser's obligations 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 (which may not be
specifically targeted at the Mortgagors with respect to the Mortgage Loans) 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 THE ATTENTION OF ITS GENERAL COUNSEL AT 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 XXX 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 and the Purchaser may not disclose 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 without the
prior written consent of the other party. 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,
or until such time as the parties mutually may agree.
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.
(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 may sustain arising out of or based upon:
(i) (A) any untrue statement of a material fact contained or
alleged to be contained in any information, report, certification,
accountants' 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 SACHS REAL ESTATE FUNDING
CORP., a New York corporation, its
General Partner
By:
-------------------------------------
Name:
Title:
AMERICAN HOME MORTGAGE CORP.
(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 "[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 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 (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 American Home Mortgage Corp., 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 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
June 1, 2006, by and between Xxxxxxx Xxxxx Mortgage Company (the
"Purchaser") and the Company (the "Purchase Agreement"), the Amended and
Restated Flow Interim Servicing Agreement, dated as of June 1, 2006, 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 American
Home Mortgage Corp. [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 TO THE SELLER
(date)
Xxxxxxx Sachs Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
You have requested [our] [my] opinion, as [Assistant] General Counsel
to American Home Mortgage Corp. (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 June 1, 2006 (the "Purchase Agreement") which sale is
in the form of whole loans and that certain Amended and Restated Flow Interim
Servicing Agreement by and between the Company and Xxxxxxx Sachs Mortgage
Company (the "Purchaser"), dated as of June 1, 2006 (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 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
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 American Home Mortgage Corp., a
corporation, organized pursuant to the laws of the State of New York (the
"Company") has committed to sell to Xxxxxxx Sachs Mortgage Company under an
Amended and Restated Flow Mortgage Loan Purchase and Warranties Agreement, dated
as of June 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 Sachs 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 Sachs
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 American Home Mortgage Corp. (the "Company")
pursuant to that certain Amended and Restated Flow Mortgage Loan Purchase and
Warranties Agreement, dated as of June 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 Sachs 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 Sachs 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.
AMERICAN HOME MORTGAGE CORP.
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 Amended and Restated Flow Mortgage Loan Purchase and Warranties
Agreement, dated as of June 1, 2006 and (b) that certain Amended and Restated
Flow Interim Servicing Agreement, dated as of June 1, 2006, between the
Purchaser and [Interim Servicer] (the "Servicing Agreement"); and, together with
the Purchase Agreement 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 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 Assignor
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_, American Home Mortgage Corp., as
the Seller, under (i) that certain Amended and Restated Flow Mortgage Loan
Purchase and Warranties Agreement, dated as of June 1, 2006 (the "Agreement")
and (ii) that certain Purchase Price and Terms Agreement dated as of [date] 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 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.
AMERICAN HOME MORTGAGE CORP.
(Seller)
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
INDEMNIFICATION
AND
CONTRIBUTION AGREEMENT
THIS INDEMNIFICATION AND CONTRIBUTION AGREEMENT dated [_______],
200___ ("Agreement") between GS Mortgage Securities Corp., a Delaware
corporation (the "Depositor"), and American Home Mortgage Corp., a New York
corporation (the "American Home").
W I T N E S S E T H:
WHEREAS, American Home 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), American Home
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.
"Due Diligence Writings" means the disclosure in the Free Writing
Prospectus, Prospectus Supplement, Offering Circular or the ABS Informational
and Computational Materials attached hereto as Exhibit A, and, to the extent
such disclosure does not reflect the responses of American Home to the questions
asked by the Underwriters, which questions are based upon the requirements of
Regulation AB, the written responses to such questions prepared by American Home
and attached hereto as Exhibit B.
Free Writing Prospectus: Any written communication that constitutes a
"free writing prospectus," as defined in Rule 405 under the 1933 Act.
GSMC: Xxxxxxx Sachs Mortgage Company, a New York limited partnership,
and its successors and assigns.
American Home 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 American Home 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 [in the Prospectus Supplement] 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, American Home, [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.
Subsection 1.02 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) American Home hereto represents that the Due Diligence Writings
provided by American Home are true, correct and complete in all material
respects as of the date hereof.
SECTION 3. INDEMNIFICATION
Subsection 3.01 Indemnification by American Home of the Depositor and
the Underwriters. (a) American Home 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 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 American Home
Information, and American Home 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. American Home's
liability under this Section 3.01 shall be in addition to any other liability
that American Home may otherwise have.
(b) GSMC shall indemnify and hold harmless American Home and its
directors, officers, partners and each Person, if any, that controls American
Home, within the meaning of either the 1933 Act or the 1934 Act, against any and
all losses, claims, damages, penalties, fines, forfeitures or liabilities to
which American Home or any such director, officer, partner or controlling Person
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, in the case of claims or actions, 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, in the case of claims or actions, 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, in the case of claims or actions,
alleged untrue statement or omission or, in the case of claims or actions,
alleged omission, relates to information set forth in the Prospectus Supplement,
the Offering Circular, the ABS Informational and Computational Material, any
Free Writing Prospectus or any amendment or supplement thereto (other than the
American Home Information), and GSMC shall in each case reimburse American Home
and each such director, officer, partner or controlling Person for any legal or
other expenses reasonably incurred by American Home, 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.
GSMC's liability under this Section 3.01 shall be in addition to any other
liability that GSMC may otherwise have.
(c) 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 American Home, 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 0000 Xxx) 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, Sachs &
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 American Home: [______________], [Address], Attention: [____________].
Subsection 4.06 Submission To Jurisdiction; Waivers.
American Home 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 XXX 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:
AMERICAN HOME MORTGAGE CORP.
By:
-------------------------------------
Name:
Title:
EXHIBIT A
DUE DILIGENCE WRITINGS
EXHIBIT B
FORM OF WRITTEN RESPONSES OF INDEMNIFYING PARTY
Questions for Originators above Item 1110's 20% threshold.
1. Is the originator involved in litigation or governmental proceedings that
has not been described in the proposed disclosure? [Item 1117]
2. Does the proposed disclosure describe all affiliations between the
originator and any of the other deal parties (namely,[__])? [Item 1119(a)]
3. Does the proposed disclosure describe all business relationships,
agreements, arrangements, transactions or understandings outside the
ordinary course of business or on terms other than would be obtained in an
arm's length transaction with an unrelated third party, other than this
deal, between the originator and any other deal parties (namely,[__]) or
their affiliates, that have existed in the past two years, and, if
applicable, the general character of any such relationship, agreement,
arrangement, transaction or understanding? [Item 1119(b)]
4. Does the proposed disclosure describe all other specific relationships
involving this deal or the assets between the originator and any other
deal party (namely,[__]) or their affiliates? [Item 1119(c)]
5. How long has the originator been originating subprime loans? [Item
1110(b)(2)]
6. Does the proposed disclosure contain all relevant information regarding
the size and composition of the originator's overall origination volume in
the past three years? [Item 1110(b)(2)]
7. Does the proposed disclosure describe the originator's experience in
origination of subprime mortgage loans? [Item 1110(b)(2)]
8. Is there any information that has not already been provided to us relating
to the originator that may be relevant to this transaction?
EXHIBIT 10.3
EXHIBIT Q-2
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT, dated October 20,
2006 ("Agreement"), is among Xxxxxxx Sachs 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") and (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. The Assignor hereby agrees that it will (i) deliver possession of 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 Deutsche Bank National Trust
Company, as trustee (including its successors in interest and any successor
trustees under the Pooling Agreement, the "Trustee"), of the GSAMP Trust 2006-S6
(the "Trust") created pursuant to a Pooling and Servicing Agreement, dated as of
October 1, 2006 (the "Pooling Agreement"), among the Assignee, Deutsche Bank
National Trust Company as Trustee and Ocwen Loan Servicing, LLC, as servicer of
the Mortgage Loans (including its successors in interest and any successor
servicers of the Mortgage Loans under the Pooling Agreement, the "Servicer"),.
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 Servicer will be
the servicer 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 and the Servicer 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 and the Servicer 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 and (iv) all references to the Purchaser or the Trustee
under the Purchase Agreement as they relate to the Mortgage Loans shall be
deemed to refer to the Trust (including the Trustee and the Servicer acting on
the Trust's behalf). 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 which amendment, modification, waiver or other alteration
would in any way affect the Mortgage Loans or the Company's performance under
the Purchase 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; and
(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 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, 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, the representations and warranties set forth in Subsection 9.01 and
in Subsection 9.02 of the Purchase Agreement are true and correct as of October
20, 2006 as if stated on October 20, 2006, except (a) all such representations
that may be affected by events occurring between April 27, 2006 and July 1, 2006
are true and correct as if stated on July 1, 2006, and (b) as otherwise set
forth on Exhibit B hereto.
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 and
the Servicer 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).
(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 Subsections 9.02 (other than the representations and warranties set
forth in clauses (g), (i), (ss), (tt), (uu), (bbb), (ccc), (ddd), (eee), (ggg),
(mmm), (nnn), (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. 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 O of the Purchase Price and Terms Agreement, dated April 7, 2006,
between the Company and the Assignor, exceeds such Repurchase Price.
Representations and Warranties of the Assignor
7. 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 7(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 5.7 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
8. 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 7 hereof that materially and adversely affects the value of any Mortgage
Loan 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
9. 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
10. 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.
11. 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.
12. This Agreement shall inure to the benefit of (i) the successors and
assigns of the parties hereto and (ii) the Trust (including the Trustee 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.
13. Each of this Agreement and the Purchase Agreement shall survive the
conveyance of the Mortgage Loans and the assignment of the Purchase Agreement
(to the extent assigned hereunder) by the Assignor to the Assignee and by the
Assignee to the Trust and nothing contained herein shall supersede or amend the
terms of the Purchase Agreement, except as expressly set forth herein, and then
only with respect to the Mortgage Loans.
14. 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.
15. In the event that any provision of this Agreement conflicts with any
provision of the Purchase Agreement with respect to the Mortgage Loans, the
terms of this Agreement shall control.
16. 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.
[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 SACHS REAL ESTATE FUNDING
CORP., a New York corporation, as
general partner
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Name: Xxxx X. Xxxxx
Title: Managing Director
FREMONT INVESTMENT & LOAN
By: /s/ Xxxx Xxxxxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Senior Vice President
EXHIBIT A TO ASSIGNMENT AND RECOGNITION AGREEMENT
Mortgage Loan Schedule
EXHIBIT B
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
Investor Loan Note Next
Code Pool Number ARM Date Maturity Loan Balance
-------- ---- -------- --- -------- -------- ------------ -------------
[-] [-] [------] [-] [------] [------] $[------] [------]
EXHIBIT 10.4
================================================================================
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 MAE 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.
Xxxxxxx 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 Amended 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 Seller'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 Mortgagor'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 Mae
eligible mortgage loan) 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, (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
Xxxxxxx Mac or Xxxxxx Mae 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 Xxxxxx 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 Mortgagor 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
Xxxxxx 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 Mae 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 Sachs 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 XXX 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 SACHS 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 Sachs 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 Sachs 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 Sachs
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
Sachs 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 Sachs 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 Amended 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 SACHS 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 Xxxxxx 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 Xxxxxx Mae's anti-predatory
lending requirements as set forth in the Xxxxxx Mae 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 Sachs 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
EXHIBIT 10.5
EXHIBIT Q-3
QUICKEN AGREEMENT
REPRESENTATIONS AND WARRANTIES AGREEMENT
This REPRESENTATIONS AND WARRANTIES AGREEMENT (the "Agreement"), dated as
of October 20, 2006 (the "Closing Date"), is between QUICKEN LOANS, INC.
("Quicken") and XXXXXXX XXXXX MORTGAGE COMPANY ("GSMC").
W I T N E S S E T H:
WHEREAS, GSMC acquired certain mortgage loans (the "Mortgage Loans") set
forth on the mortgage loan schedule attached hereto as Schedule I (the "Mortgage
Loan Schedule") from Quicken pursuant to that certain Amended and Restated
Seller's Purchase, Warranties;
WHEREAS, on the date hereof, GSMC intends to effect a Securitization
Transaction of the Mortgage Loans;
WHEREAS, in connection with such Securitization Transaction, Quicken is
obligated pursuant to Section 8 of the Purchase Agreement to make various
representations and warranties to GSMC 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 each respective Purchase
Agreement. In the event of a conflict between any of the defined terms
contained in this Agreement and each respective Purchase Agreement, the
definitions contained in this Agreement shall control.
Section 2. Representations and Warranties of Quicken.
Quicken warrants and represents to GSMC as of the date hereof that:
(a) Quicken is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its formation;
(b) Quicken 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 Quicken of this Agreement is in the ordinary
course of Quicken's business and will not conflict with, or result in a
breach of, any of the terms, conditions or provisions of Quicken's charter or
bylaws or any legal restriction, or any material agreement or instrument to
which Quicken 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
Quicken or its property is subject. The execution, delivery and performance
by Quicken of this Agreement have been duly authorized by all necessary
corporate action on part of Quicken. This Agreement has been duly executed
and delivered by Quicken, and, upon the due authorization, execution and
delivery by GSMC, will constitute the valid and legally binding obligation of
Quicken, enforceable against Quicken in accordance with its terms except as
enforceability may be limited by bankruptcy, reorganization, insolvency,
moratorium or other 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 Quicken in connection with the execution, delivery or
performance by Quicken of this Agreement or the consummation by it of the
transaction contemplated hereby;
(d) Pursuant to Section 8 of the Purchase Agreement, the
representations and warranties set forth in Subsection 3.01 in the Purchase
Agreement are true and accurate as of the date hereof and the representations
and warranties in Subsection 3.02 in the Purchase Agreement are true and
correct as of the Closing Date (as defined in the Purchase Agreement) or the
Transfer Date, as applicable (as defined in the Purchase Agreement) as if
such representations and warranties were made as of the date hereof.
Section 3. Remedies for Breach of Representations and Warranties of
Quicken.
(a) Quicken hereby acknowledges and agrees that the remedies available
to GSMC in connection with any breach of the representations and warranties
made by Quicken set forth in Section 2 hereof shall be as set forth in
Subsection 3.03 of the Purchase Agreement as if they were set forth herein
(including without limitation the repurchase and indemnity obligations set
forth therein).
(b) In the event a Mortgage Loan is required to be repurchased pursuant
to Subsection 3.05 of the Purchase Agreement, Quicken shall pay to GSAMP
Trust 2006-S6 (the "Trust") the Repurchase Price and Quicken shall pay to
GSMC the amount by which the repurchase price set forth in Section P of the
Purchase Price and Terms Agreement, dated September 1, 2006, between Quicken
and GSMC, exceeds such Repurchase Price.
Section 4. 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 5. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
Section 6. 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 7. 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 8. Successors and Assigns.
This Agreement may not be assigned, pledged or hypothecated by any party
hereto, except that GSMC's rights under this Agreement may be assigned. Any
entity into which Quicken or GSMC may be merged or consolidated shall, without
the requirement for any further writing, be deemed Quicken or GSMC,
respectively, hereunder.
Section 9. Third Party Beneficiary.
The parties agree that GS Mortgage Securities Corp. and the Trust
(including the trustee thereof and each servicer of the Mortgage Loans acting on
behalf of the Trust) are intended third-party beneficiaries 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 Quicken under
Section 2 of this Agreement as if they were parties to this Agreement.
Section 10. 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.
QUICKEN LOANS, INC.
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Executive Vice President,
Capital Markets
XXXXXXX SACHS MORTGAGE COMPANY
By: Xxxxxxx Xxxxx Real Estate Funding
Corp., its General Partner
By: /s/ Xxxxxxxx Xxxx
--------------------------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
SCHEDULE I
Mortgage Loan Schedule
(Available Upon Request)
EXHIBIT R
SERVICING CRITERIA TO BE ADDRESSED
IN ASSESSMENT OF COMPLIANCE
Key:
X - obligation
[X] - under consideration for obligation
Where there are multiple checks for criteria the attesting party will identify
in their management assertion that they are attesting only to the portion of the
distribution chain they are responsible for in the related transaction
agreements.
Reg AB Reference Servicing Criteria Servicer Trustee
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1122(d)(1)(i) Policies and procedures are instituted to monitor X X
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 X X
outsourced to third parties, policies and
procedures are instituted to monitor the third
party's performance and compliance with such
servicing activities.
1122(d)(1)(iii) Any requirements in the transaction agreements to
maintain a back-up servicer for the Pool Assets
are maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions policy X
is in effect on the party participating in the
servicing function throughout the reporting
period in the amount of coverage required by and
otherwise in accordance with the terms of the
transaction agreements.
Cash Collection and Administration
1122(d)(2)(i) Payments on pool assets are deposited into the X
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 X X
an obligor or to an investor are made only by
authorized personnel.
1122(d)(2)(iii) Advances of funds or guarantees regarding X
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 X X
cash reserve accounts or accounts established as
a form of over collateralization, 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 X X
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 X X
unauthorized access.
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis X X
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 X X
with the Commission, are maintained in accordance
with the transaction agreements and applicable
Commission requirements. Specifically, such
reports (A) are prepared in accordance with
timeframes and other terms set forth in the
transaction agreements; (B) provide information
calculated in accordance with the terms specified
in the transaction agreements; (C) are filed with
the Commission as required by its rules and
regulations; and (D) agree with investors' or the
trustee's records as to the total unpaid
principal balance and number of Pool Assets
serviced by the Servicer.
1122(d)(3)(ii) Amounts due to investors are allocated and X X
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 X X
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 X X
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 pool assets is X X
maintained as required by the transaction
agreements or related pool asset documents.
1122(d)(4)(ii) Pool assets and related documents are X X
safeguarded as required by the transaction
agreements
1122(d)(4)(iii) Any additions, removals or substitutions to the X X
asset pool are made, reviewed and approved in
accordance with any conditions or requirements in
the transaction agreements.
1122(d)(4)(iv) Payments on pool assets, including any payoffs, X
made in accordance with the related pool asset
documents are posted to the Servicer's obligor
records maintained no more than two business days
after receipt, or such other number of days
specified in the transaction agreements, and
allocated to principal, interest or other items
(e.g., escrow) in accordance with the related
pool asset documents.
1122(d)(4)(v) The Servicer's records regarding the pool assets X
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 X
obligor's pool assets (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., X
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 X
maintained during the period a pool asset is
delinquent in accordance with the transaction
agreements. Such records are maintained on at
least a monthly basis, or such other period
specified in the transaction agreements, and
describe the entity's activities in monitoring
delinquent pool assets including, for example,
phone calls, letters and payment rescheduling
plans in cases where delinquency is deemed
temporary (e.g., illness or unemployment).
1122(d)(4)(ix) Adjustments to interest rates or rates of return X
for pool assets with variable rates are computed
based on the related pool asset documents.
1122(d)(4)(x) Regarding any funds held in trust for an obligor X
(such as escrow accounts): (A) such funds are
analyzed, in accordance with the obligor's pool
asset documents, on at least an annual basis, or
such other period specified in the transaction
agreements; (B) interest on such funds is paid,
or credited, to obligors in accordance with
applicable pool asset documents and state laws;
and (C) such funds are returned to the obligor
within 30 calendar days of full repayment of the
related pool assets, or such other number of days
specified in the transaction agreements.
1122(d)(4)(xi) Payments made on behalf of an obligor (such as X
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 X
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 X
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 X
accounts are recognized and recorded in
accordance with the transaction agreements.
1122(d)(4)(xv) Any external enhancement or other support, X
identified in Item 1114(a)(1) through (3) or Item
1115 of Regulation AB, is maintained as set forth
in the transaction agreements.
EXHIBIT S
FORM 10-D, FORM 8-K AND FORM 10-K
REPORTING RESPONSIBILITY
As to each item described below, the entity indicated as the Responsible Party
shall be primarily responsible for reporting the information to the Trustee
pursuant to Section 8.12(a)(i), (ii) and (iii). If the Trustee is indicated
below as to any item, then the Trustee is primarily responsible for obtaining
that information.
Under Item 1 of Form 10-D: a) items marked "4.03 statement" are required to be
included in the periodic Distribution Date statement under Section 4.03,
provided by the Trustee based on information received from the Servicer; and b)
items marked "Form 10-D report" are required to be in the Form 10-D report but
not the 4.03 statement, provided by the party indicated. Information under all
other Items of Form 10-D is to be included in the Form 10-D report. Items
indicated as "N/A" are not applicable to the transaction.
Form Item Description Responsible Party
10-D
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1 Distribution and Pool Performance Information
Item 1121(a) - Distribution and Pool Performance Information 4.03 statement
(1) Any applicable record dates, accrual dates,
determination dates for calculating distributions and actual
distribution dates for the distribution period.
(2) Cash flows received and the sources thereof for 4.03 statement
distributions, fees and expenses.
(3) Calculated amounts and distribution of the flow of funds 4.03 statement
for the period itemized by type and priority of payment,
including:
(i) Fees or expenses accrued and paid, with an 4.03 statement
identification of the general purpose of such fees and
the party receiving such fees or expenses.
(ii) Payments accrued or paid with respect to N/A
enhancement or othersupport identified in Item 1114 of
Regulation AB (such as insurance premiums or other
enhancement maintenance fees), with an identification of
the general purpose of such payments and the party
receiving such payments.
(iii) Principal, interest and other distributions 4.03 statement
accrued and paid on the asset-backed
securities by type and by class or series and any principal
or interest shortfalls or carryovers.
(iv) The amount of excess cash flow or excess spread 4.03 statement
and the disposition of excess cash flow.
(4) Beginning and ending principal balances of the 4.03 statement
asset-backed securities.
(5) Interest rates applicable to the pool assets and the 4.03 statement
asset-backed securities, as applicable. Consider providing
interest rate information for pool assets in appropriate
distributional groups or incremental ranges.
(6) Beginning and ending balances of transaction accounts, 4.03 statement
such as reserve accounts, and material account activity
during the period.
(7) Any amounts drawn on any credit enhancement or other N/A
support identified in Item 1114 of Regulation AB, as
applicable, and the amount of coverage remaining under any
such enhancement, if known and applicable.
(8) Number and amount of pool assets at the beginning and 4.03 statement
ending of each period, and updated pool composition
information, such as weighted average coupon, weighted
average life, weighted average remaining term, pool Updated pool composition
factorsand prepayment amounts. information fields to be as
specified by Depositor from
time to time
(9) Delinquency and loss information for the period. 4.03 statement.
In addition, describe any material changes to the Form 10-D report: Sponsor
information specified in Item 1100(b)(5) of Regulation AB
regarding the pool assets.
(10) Information on the amount, terms and general purpose of 4.03 statement
any advances made or reimbursed during the period, including
the general use of funds advanced and the general source of
funds for reimbursements.
(11) Any material modifications, extensions or waivers to 4.03 statement: Servicer
pool asset terms, fees, penalties or payments during the
distribution period or that have cumulatively become
material over time.
(12) Material breaches of pool asset representations or Form 10-D report: Sponsor
warranties or transaction covenants. (subject to Depositor
approval)
(13) Information on ratio, coverage or other tests used for 4.03 statement
determining any early amortization, liquidation or other
performance trigger and whether the trigger was met.
(14) Information regarding any new issuance of asset-backed Form 10-D report: Depositor
securities backed by the same asset pool
[information regarding] any pool asset changes (other than Form 10-D report: Servicer
in connection with a pool asset converting into cash in
accordance with its terms), such as additions or removals in
connection with a prefunding or revolving period and pool
asset substitutions and repurchases (and purchase rates, if
applicable), and cash flows available for future purchases,
such as the balances of any prefunding or revolving
accounts, if applicable.
Disclose any material changes in the solicitation, Form 10-D report: Sponsor
credit-granting, underwriting, origination, acquisition or
pool selection criteria or procedures, as applicable, used
to originate, acquire or select the new pool assets.
Item 1121(b) - Pre-Funding or Revolving Period Information N/A
Updated pool information as required under Item 1121(b).
2 Legal Proceedings
Item 1117 - Legal proceedings pending against the following
entities, or their respective property, that is material to
Certificateholders, including proceedings known to be
contemplated by governmental authorities:
Sponsor (Seller) Sponsor
Depositor Depositor
Trustee Trustee
Issuing entity Depositor
Servicer, Subservicer or any other subservicer to which Servicer
Servicer delegates servicing function to that is servicing
20% or more of pool assets at time of report
Originator of 20% or more of pool assets as of the Cut-off Date Sponsor
3 Sales of Securities and Use of Proceeds
Information from Item 2(a) of Part II of Form 10-Q:
With respect to any sale of securities by the sponsor, Depositor
depositor or issuing entity, that are backed by the same
asset pool or are otherwise issued by the issuing entity,
whether or not registered, provide the sales and use of
proceeds information in Item 701 of Regulation S-K. Pricing
information can be omitted if securities were not
registered.
4 Defaults Upon Senior Securities
Information from Item 3 of Part II of Form 10-Q: Trustee
Report the occurrence of any Event of Default of which the Trustee
Trustee has received written notice or has actual knowledge
(after expiration of any grace period and provision of any
required notice)
5 Submission of Matters to a Vote of Security Holders
Information from Item 4 of Part II of Form 10-Q Party submitting matter to
vote of Certificateholders
6 Significant Obligors of Pool Assets
Item 1112(b) - Significant Obligor Financial Information* N/A
*This information need only be reported on the Form 10-D
for the distribution period in which updated information is
required pursuant to the Item.
7 Significant Enhancement Provider Information
Item 1114(b)(2) - Credit Enhancement Provider Financial N/A
Information*
Determining applicable disclosure threshold
Obtaining required financial information or effecting
incorporation by reference
Item 1115(b) - Derivative Counterparty Financial Depositor
Information*
Determining current maximum probable exposure
Determining current significance percentage
Obtaining required financial information or effecting
incorporation by reference
*This information need only be reported on the Form 10-D for
the distribution period in which updated information is
required pursuant to the Items.
8 Other Information
Disclose any information required to be reported on Form 8-K The Responsible Party for the
during the period covered by the Form 10-D but not reported applicable Form 8-K item as
indicated below
9 Exhibits
Distribution report Trustee
Exhibits required by Item 601 of Regulation S-K, such as Depositor
material agreements
8-K
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1.01 Entry into a Material Definitive Agreement
Disclosure is required regarding entry into or amendment of Any of the following that is
any definitive agreement that is material to the entering into a material
securitization, even if depositor is not a party. definitive agreement:
Servicer, Trustee, Sponsor,
Examples: servicing agreement, custodial agreement. Depositor
Note: disclosure not required as to definitive agreements
that are fully disclosed in the prospectus
1.02 Termination of a Material Definitive Agreement
Disclosure is required regarding termination of any Any of the following that is
definitive agreement that is material to the securitization requesting termination of a
(other than expiration in accordance with its terms), even material definitive agreement:
if depositor is not a party. Servicer, Trustee, Sponsor,
Depositor
Examples: servicing agreement, custodial agreement.
1.03 Bankruptcy or Receivership
Disclosure is required regarding the bankruptcy or
receivership, if known to the Depositor, with respect to any Any of the following that is
of the following: in bankruptcy or receivership:
Servicer, Trustee, Sponsor,
Sponsor (Seller), Depositor, Servicer, affiliated Servicer, Depositor
other Servicer servicing 20% or more of pool assets at time
of report, other material servicers, Trustee, significant
obligor, credit enhancer (10% or more), derivatives
counterparty.
2.04 Triggering Events that Accelerate or Increase a Direct
Financial Obligation or an Obligation under an Off-Balance
Sheet Arrangement
Includes an early amortization, performance trigger or other Trustee or Depositor
event, including event of default, that would materially
alter the payment priority/distribution of cash
flows/amortization schedule.
Disclosure will be made of events other than waterfall
triggers which are disclosed in the 4.03 statement
3.03 Material Modification to Rights of Security Holders
Disclosure is required of any material modification to Party requesting modification
documents defining the rights of Certificateholders,
including the Pooling and Servicing Agreement
5.03 Amendments to Articles of Incorporation or Bylaws; Change in
Fiscal Year
Disclosure is required of any amendment "to the governing Depositor
documents of the issuing entity"
5.06 Change in Shell Company Status
[Not applicable to ABS issuers] Depositor
6.01 ABS Informational and Computational Material Depositor
[Not included in reports to be filed under Section 8.12]
6.02 Change of Servicer or Trustee
Requires disclosure of any removal, replacement, Trustee or Servicer
substitution or addition of any servicer, affiliated
servicer, other servicer servicing 10% or more of pool
assets at time of report, other material servicers,
certificate administrator or trustee. Reg AB disclosure
about any new servicer or trustee is also required.
6.03 Change in Credit Enhancement or Other External Support
Covers termination of any enhancement in manner other than Depositor or Trustee
by its terms, the addition of an enhancement, or a material
change in the enhancement provided. Applies to external
credit enhancements as well as derivatives. Reg AB
disclosure about any new enhancement provider is also
required.
6.04 Failure to Make a Required Distribution Trustee
6.05 Securities Act Updating Disclosure
If any material pool characteristic differs by 5% or more at Depositor
the time of issuance of the securities from the description
in the final prospectus, provide updated Reg AB disclosure
about the actual asset pool.
If there are any new servicers or originators required to be Depositor
disclosed under Regulation AB as a result of the foregoing,
provide the information called for in Items 1108 and 1110
respectively.
7.01 Regulation FD Disclosure Depositor
8.01 Other Events
Any event, with respect to which information is not Depositor
otherwise called for in Form 8-K, that the registrant deems
of importance to security holders.
9.01 Financial Statements and Exhibits The Responsible Party
applicable to reportable event
10-K
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9B Other Information
Disclose any information required to be reported on Form 8-K The Responsible Party for the
during the fourth quarter covered by the Form 10-K but not applicable Form 8-K item as
reported indicated above
15 Exhibits and Financial Statement Schedules
Item 1112(b) - Significant Obligor Financial Information N/A
Item 1114(b)(2) - Credit Enhancement Provider Financial N/A
Information
Determining applicable disclosure threshold
Obtaining required financial information or effecting
incorporation by reference
Item 1115(b) - Derivative Counterparty Financial Information Depositor
Determining current maximum probable exposure
Determining current significance percentage
Obtaining required financial information or effecting
incorporation by reference
Item 1117 - Legal proceedings pending against the following
entities, or their respective property, that is material to
Certificateholders, including proceedings known to be
contemplated by governmental authorities:
Sponsor (Seller) Sponsor
Depositor Depositor
Trustee Trustee
Issuing entity Depositor
Servicer, Subservicer or any other subservicer to which Servicer
Servicer delegates servicing function to that is servicing
20% or more of pool assets at time of report
Originator of 20% or more of pool assets as of the Cut-off Date Sponsor
Item 1119 - Affiliations and relationships between the
following entities, or their respective affiliates, that are
material to Certificateholders:
Sponsor (Seller) - Xxxxxxx Xxxxx Mortgage Company Sponsor
Depositor - GS Mortgage Securities Corp. Depositor
Trustee - Deutsche Bank National Trust Company Trustee
Servicer (Ocwen Loan Servicing, LLC), Subservicer or any Servicer
other subservicer to which Servicer delegates servicing
function to that is servicing 20% or more of pool assets at
time of report
Originator - As identified on the Mortgage Loan Schedule Purchaser
Counterparty - Xxxxxxx Sachs Capital Markets, L.P. Depositor
Item 1122 - Assessment of Compliance with Servicing Criteria Each Party participating in
the servicing function
Item 1123 - Servicer Compliance Statement Servicer
EXHIBIT 10.6
EXHIBIT T
YIELD MAINTENANCE AGREEMENT
(Multicurrency--Cross Border)
ISDA(R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of October 20, 2006
XXXXXXX XXXXX MITSUI MARINE and GSAMP TRUST 2006-S6
DERIVATIVE PRODUCTS, L.P.
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 purposes 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
of 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 full
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, reorganisation, 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 any 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)(l), (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)(l) 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 telex, 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 Xxx 0000 or any modification, extension or
reenactment 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 case 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)(1) 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 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 documentation 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) in 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 meaning 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 case) 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 case
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-S6
DERIVATIVE PRODUCTS, L.P.
By: GSMMDPGP, Inc. By: Deutsche Bank National Trust
General Partner Company, not in its individual
capacity but solely as Trustee,
on behalf of GSAMP Trust 2006-S6
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxxxx Xxxxxx
------------------------------- -----------------------------
Name: Xxxxx Xxxxx Name: Xxxxxxx Xxxxxx
Title: Vice President Title: Vice President
Date: October 20, 2006 Date: October 20, 2006
EXHIBIT 10.7
SCHEDULE
to the
MASTER AGREEMENT
dated as of October 20, 2006
between
XXXXXXX SACHS MITSUI MARINE
DERIVATIVE PRODUCTS, L.P.
a limited partnership organized
under the laws of Delaware
("Party A"),
and
GSAMP Trust 2006-S6
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 respect to At execution of this Yes
Party A Agreement
Party A Support Agreement dated as of At execution of this Yes
October 8, 1993 among Party A, Agreement
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 December 20, At execution of this Yes
2000 between Mitsui Marine and Agreement
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 annual As soon as possible Yes
balance sheet of Party A following request of
Party B
Party A Legal opinions with respect to At execution of this No
Party A Agreement
Party B Incumbency certificate or other At execution of this Yes
documents evidencing the Agreement
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 Reports Promptly upon becoming Yes
available
Party B Legal opinion with respect to At execution of this No
Party B Agreement
Party B An executed copy of the Pooling Within 30 days after the No
and Servicing Agreement dated as date of this Agreement
of October 1, 2006, (the "Pooling
and Servicing Agreement") among
GS Mortgage Securities Corp., as
depositor, Ocwen Loan Servicing,
LLC, as servicer and Deutsche Bank
National Trust Company, 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: Deutsche Bank National Trust
Company
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000-0000
Attention: Trust Administration - GS066S
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: 212-438-2652
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)(iii) 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, Deutsche Bank National Trust Company is entering into the
Agreement in its capacity as Trustee for 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
Deutsche Bank National Trust Company is acting as Trustee 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 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 Trustee that
it has received a redemption notice, Party A shall provide the
Trustee 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 Trustee 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 "Aa3" by Moody's
and if rated "Aa3" 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 "A1" by Moody's and a short-term
rating of "P-1" by Moody's and, in each case, such rating is
not on negative credit watch by Moody's 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
Part 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, trustee, 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) Trustee Capacity. It is expressly understood and agreed by the parties
hereto that insofar as this Agreement is executed by the Trustee (i) this
Agreement is executed and delivered by Deutsche Bank National Trust Company, not
in its individual capacity but solely as Trustee 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 Deutsche Bank National Trust
Company 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 Trustee 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: October 20, 2006
GSAMP TRUST 2006-S6
By: Deutsche Bank National Trust Company,
not in its individual capacity but solely
as Trustee, on behalf of GSAMP Trust
2006-S6
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
Date: October 20, 2006
EXHIBIT 10.8
CONFIRMATION
DATE: October 11, 2006
TO: Xxxxxxx Sachs Mortgage Company (Account No.: 760-02332)
Attention: Xxxxxxxx Xxxxxxxxxx
TO: Xxxxxxx Sachs 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: Cap Transaction
REF NO: NUUC610250 (290000000) / (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 Sachs 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 Derivatives
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 the Transaction to which this Confirmation
relates, and this Confirmation evidences the sole Transaction for the benefit of
the certificate holders of the GSAMP Trust 2006-S6 ("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 "Agreement") 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 Quotation 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; provided however, with respect to
GSAMP 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" (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 5(b)(i)
Illegality, 5(b)(ii) Tax Event and 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 Section 4B) shall apply and (ix) Set-off under Section 6(e) will not apply.
In the event of any inconsistency between the Definitions, the Agreement 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 the paragraph 4(A) hereof, this
Transaction shall be governed by the ISDA Master Agreement between such parties
as of October 20, 2006.
3. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Applicable Notional Amount: USD 28,379,985 (subject to
adjustment in accordance with
the Schedule set forth in Annex
I)
Notional Amount for each Calculation Period: The lesser of:
(I) The Applicable Notional
Amount; and
(II) The Aggregate Current
Principal Balance of the
Reference Securities on the
monthly statement from the
Trustee for the distribution
occurring on the first day of
the applicable Calculation
Period
minus
The applicable Notional Amount
as set forth in the Confirmation
with GSCM Reference Number of
NUUS6107K0 (920000000);
provided, however, that any
reductions in the Notional
Amount shall not give rise to a
payment by either party of any
settlement amount, breakage
costs, or other amounts
representing the future value of
the portion of the Notional
Amount which has been reduced.
Aggregate Current Principal
Balance shall mean the sum of
the amounts published on the
GSAMP Trust 2006-S6 distribution
statement on the internet
website https:/xxx.xxx.xx.xxx/
invr under the column heading
Current Principal Balance for
Class X0X, X0X, X0X, X-0, X-0,
X-0, M-3 and M-4.
If such report does not appear
on the internet website
referenced above, the Aggregate
Current Principal Balance can be
obtained by contacting the
trustee at its corporate trust
office located at 0000 Xxxx Xx.
Xxxxxx Xxxxx, Xxxxx Xxx,
Xxxxxxxxxx 00000, Attention:
Trust Administration - GS066S,
or by contacting the trustee's
investor relations desk at (800)
735-7777; provided, however, if
the Aggregate Current Principal
Balance is still not available
from the above sources on the
fifth Business Day following the
first day of the Calculation
Period the Notional Amount will
be
The lesser of:
(i) The Applicable Notional
Amount
(ii) The Aggregate Current
Principal Balance of the
Reference Securities applicable
to the previous Calculation
Period
minus
The applicable Notional Amount
as set forth in the Confirmation
with GSCM Reference Number of
NUUS6107K0 (920000000)
Reference Securities: GSAMP Mortgage Pass-Through
Certificates 2006-S6, Class A-1A
(CUSIP 36245C AA 0)
GSAMP Mortgage Pass-Through
Certificates 2006-S6, Class A-1B
(CUSIP 36245C AB 8)
GSAMP Mortgage Pass-Through
Certificates 2006-S6, Class A-1C
(CUSIP 36245C AC 6)
GSAMP Mortgage Pass-Through
Certificates 2006-S6, Class A-3
(CUSIP 36245C AE 2)
GSAMP Mortgage Pass-Through
Certificates 2006-S6, Class M-1
(CUSIP 36245C AF 9)
GSAMP Mortgage Pass-Through
Certificates 2006-S6, Class M-2
(CUSIP 36245C AG 7)
GSAMP Mortgage Pass-Through
Certificates 2006-S6, Class M-3
(CUSIP 36245C AH 5)
GSAMP Mortgage Pass-Through
Certificates 2006-S6, Class M-4
(CUSIP 36245C AJ 1)
Trade Date: October 11, 2006
Effective Date: Xxxxx 00, 0000
Xxxxxxxxxxx Date: October 25, 2011, subject to
adjustment in accordance with
the Modified Following Business
Day Convention
Floating Amounts:
Floating Rate Payer (Cap Seller): GSCM
Cap Rate: 5.50%
Floating Rate Payer Early Payment Dates: On the day that 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 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 April 25,
2007 and ending on the
Termination Date, subject to
adjustment in accordance with
the Modified Following Business
Day Convention.
Fixed Amounts:
Fixed Rate Payer (Cap Buyer): Counterparty
Fixed Rate Payer Payment Date: October 13, 2006, subject to
adjustment in accordance with
the Modified Following Business
Day Convention.
Fixed Amount: USD 520,000 payable by Xxxxxxx
Sachs Mortgage Company, L.P. to
GSCM on the Fixed Rate Payer
Payment Date
Business Days: New York and Los Angeles
Calculation Agent: GSCM
Governing Law: New York law
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 Deutsche Bank National Trust Company, solely as trustee (the "Trustee")
on behalf of the holders of GSAMP Mortgage Pass-Through Certificates, Series
2006-S6 (CUSIP Number: see Reference Securities; the "Certificates") (each such
assignee is referred to herein as an "Assignee" and each such assignor is
referred to herein as an "Assignor"). These 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 the Transaction to an Assignee, the Assignee shall accept
assignment of the 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, the 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 the 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 the 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 the Transaction after the Assignment Date, with the same force and effect
as if Assignee had been a party to the Transaction originally; it being
understood and agreed that, with respect to the Trustee as Assignee, the Trustee
is an assignee solely by reason of its capacity as trustee (and not in its
individual capacity) and the Trustee 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 Party consents to the sale, assignment and transfer by Assignor 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 the 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 the 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 the 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 the jurisdiction of its organization; (ii)
it has all requisite power and authority to assume the rights and obligations of
Assignor under the Transaction as provided herein and perform its obligations
under the Transaction and has taken all necessary action to authorize such
assumption and performance; and (iii) such assumption and the 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 GSCM or GSMMDP, as the case may be, 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 GSCM or GSMMDP, as the case may be, shall not
consent to such additional assignments of this Transaction until written
confirmation is received from the rating agencies that have rated the
Certificates that such assignment will not result in a withdrawal or downgrade
of the ratings of the Certificates. Furthermore, no amendment of this
Confirmation by an Assignee or other permitted assign shall be made, and GSCM or
GSMMDP, as the case may be, shall not consent to such amendment of this
Confirmation, until written confirmation from the rating agencies that have
rated the Certificates that such amendment will not result in a withdrawal or
downgrade of the ratings of the Certificates is received.
B. Limited Recourse; Non-Petition Provision:
To the extent GSAMP or the Trustee 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
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: (i) Support Agreement dated as
of October 8, 1993 among GSMMDP,
Mitsui Sumitomo Insurance
Company, Limited (formerly known
as Mitsui Marine and Fire
Insurance Co., Ltd.) (Mitsui
Marine) and The Xxxxxxx Xxxxx
Group, Inc. (Goldman Group)
shall constitute a Credit
Support Document with respect to
the obligations of GSMMDP.
(ii) Guaranty dated as of
December 20, 2000 between Mitsui
Marine and Goldman Group in
favor of Counterparty as
beneficiary thereof shall
constitute a Credit Support
Document with respect to the
obligations of GSMMDP.
6. The parties hereby agree (a) to check this Confirmation (Reference No.:
NUUC610250 (290000000)) 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 SACHS CAPITAL MARKETS, L.P.
By: Xxxxxxx Xxxxx Capital Markets, L.L.C.
General Partner
By: /s/ Xxxxx Xxxxx
-----------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
Agreed and Accepted By:
XXXXXXX SACHS MITSUI MARINE DERIVATIVE PRODUCTS, L.P.
By: GSMMDPGP, Inc.,
General Partner
By: /s/ Xxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
Agreed and Accepted By:
Xxxxxxx Xxxxx Mortgage Company, L.P.
By: /s/ Xxxxxxxx Xxxx
---------------------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
Counterparty Reference No.: ______________________
Annex I
Schedule
For the Calculation Periods The applicable USD
from and including **: to but excluding **: Notional Amount shall be:
--------------------------- -------------------- -------------------------
March 25, 2007 April 25, 2007 28,379,985.00
April 25, 2007 May 25, 2007 34,096,136.00
May 25, 2007 June 25, 2007 39,166,191.00
June 25, 2007 July 25, 2007 43,648,780.00
July 25, 2007 August 25, 2007 47,572,437.00
August 25, 2007 September 25, 2007 50,990,655.00
September 25, 2007 October 25, 2007 53,936,450.00
October 25, 2007 November 25, 2007 55,269,135.00
November 25, 2007 December 25, 2007 46,438,247.00
December 25, 2007 January 25, 2008 38,288,613.00
January 25, 2008 February 25, 2008 30,428,597.00
February 25, 2008 March 25, 2008 22,847,929.00
March 25, 2008 April 25, 2008 15,536,701.00
April 25, 2008 May 25, 2008 8,485,357.00
May 25, 2008 June 25, 2008 6,381,936.00
June 25, 2008 July 25, 2008 11,697,093.00
July 25, 2008 August 25, 2008 18,273,567.00
August 25, 2008 September 25, 2008 24,452,262.00
September 25, 2008 October 25, 2008 24,452,262.00
October 25, 2008 November 25, 2008 24,452,262.00
November 25, 2008 December 25, 2008 24,452,262.00
December 25, 2008 January 25, 2009 25,368,836.00
January 25, 2009 February 25, 2009 28,995,991.00
February 25, 2009 March 25, 2009 32,403,682.00
March 25, 2009 April 25, 2009 35,605,176.00
April 25, 2009 May 25, 2009 38,612,940.00
May 25, 2009 June 25, 2009 40,035,519.00
June 25, 2009 July 25, 2009 38,443,322.00
July 25, 2009 August 25, 2009 36,841,606.00
August 25, 2009 September 25, 2009 35,234,719.00
September 25, 2009 October 25, 2009 33,626,610.00
October 25, 2009 November 25, 2009 32,020,868.00
November 25, 2009 December 25, 2009 33,963,687.00
December 25, 2009 January 25, 2010 35,788,881.00
January 25, 2010 February 25, 2010 37,503,567.00
February 25, 2010 March 25, 2010 39,114,426.00
March 25, 2010 April 25, 2010 40,627,741.00
April 25, 2010 May 25, 2010 41,883,341.00
May 25, 2010 June 25, 2010 40,933,114.00
June 25, 2010 July 25, 2010 39,983,437.00
July 25, 2010 August 25, 2010 39,036,311.00
August 25, 2010 September 25, 2010 38,093,543.00
September 25, 2010 October 25, 2010 37,156,761.00
October 25, 2010 November 25, 2010 36,227,428.00
November 25, 2010 December 25, 2010 35,306,853.00
December 25, 2010 January 25, 2011 34,396,202.00
January 25, 2011 February 25, 2011 33,496,514.00
February 25, 2011 March 25, 2011 32,608,703.00
March 25, 2011 April 25, 2011 31,733,574.00
April 25, 2011 May 25, 2011 30,871,828.00
May 25, 2011 June 25, 2011 30,024,070.00
June 25, 2011 July 25, 2011 29,190,821.00
July 25, 2011 August 25, 2011 28,372,522.00
August 25, 2011 September 25, 2011 27,569,536.00
September 25, 2011 October 25, 2011 26,782,162.00
**subject to adjustment in accordance with the Modified Following Business Day
Convention
EXHIBIT 10.9
EXHIBIT U
SWAP AGREEMENT
(Multicurrency--Cross Border)
ISDA(R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of October 20, 2006
XXXXXXX SACHS MITSUI MARINE and GSAMP TRUST 2006-S6
DERIVATIVE PRODUCTS, L.P.
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 purposes 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
of 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 full
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, reorganisation, 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 any 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)(l), (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)(l) 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 telex, 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 Xxx 0000 or any modification, extension or
reenactment 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 case 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)(1) 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 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 documentation 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) in 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 meaning 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 case) 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 case
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-S6
DERIVATIVE PRODUCTS, L.P.
By: GSMMDPGP, Inc. By: Deutsche Bank National Trust
General Partner Company, not in its individual
capacity but solely as Trustee,
on behalf of GSAMP Trust 2006-S6
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxxxx Xxxxxx
------------------------------- -----------------------------
Name: Xxxxx Xxxxx Name: Xxxxxxx Xxxxxx
Title: Vice President Title: Vice President
Date: October 20, 2006 Date: October 20, 2006
EXHIBIT 10.10
SCHEDULE
to the
MASTER AGREEMENT
dated as of October 20, 2006
between
XXXXXXX SACHS MITSUI MARINE
DERIVATIVE PRODUCTS, L.P.
a limited partnership organized
under the laws of Delaware
("Party A"),
and
GSAMP Trust 2006-S6
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 respect to At execution of this Yes
Party A Agreement
Party A Support Agreement dated as of At execution of this Yes
October 8, 1993 among Party A, Agreement
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 December 20, At execution of this Yes
2000 between Mitsui Marine and Agreement
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 annual As soon as possible Yes
balance sheet of Party A following request of
Party B
Party A Legal opinions with respect to At execution of this No
Party A Agreement
Party B Incumbency certificate or other At execution of this Yes
documents evidencing the Agreement
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 Reports Promptly upon becoming Yes
available
Party B Legal opinion with respect to At execution of this No
Party B Agreement
Party B An executed copy of the Pooling Within 30 days after the No
and Servicing Agreement dated as date of this Agreement
of October 1, 2006, (the "Pooling
and Servicing Agreement") among
GS Mortgage Securities Corp., as
depositor, Ocwen Loan Servicing,
LLC, as servicer and Deutsche Bank
National Trust Company, 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: Deutsche Bank National Trust
Company
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000-0000
Attention: Trust Administration - GS066S
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: 212-438-2652
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)(iii) 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 Xxxxxxx 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, Deutsche Bank National Trust Company is entering into the
Agreement in its capacity as Trustee for 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
Deutsche Bank National Trust Company is acting as Trustee 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 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 Trustee that
it has received a redemption notice, Party A shall provide the
Trustee 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 Trustee 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 "Aa3" by Moody's
and if rated "Aa3" 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 "A1" by Moody's and a short-term
rating of "P-1" by Moody's and, in each case, such rating is
not on negative credit watch by Moody's 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
Part 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, trustee, 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) Trustee Capacity. It is expressly understood and agreed by the parties
hereto that insofar as this Agreement is executed by the Trustee (i) this
Agreement is executed and delivered by Deutsche Bank National Trust Company, not
in its individual capacity but solely as Trustee 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 Deutsche Bank National Trust
Company 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 Trustee 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: October 20, 2006
GSAMP TRUST 2006-S6
By: Deutsche Bank National Trust Company,
not in its individual capacity but solely
as Trustee, on behalf of GSAMP Trust
2006-S6
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
Date: October 20, 2006
EXHIBIT 10.11
CONFIRMATION
DATE: October 11, 2006
TO: Xxxxxxx Sachs Mortgage Company, L.P. (Account No.: 760-02332)
Attention: Xxxxxxxx Xxxxxxxxxx
TO: Xxxxxxx Sachs 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: NUUS6107K0 (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 Sachs Capital Markets, L.P. ("GSCM"),
guaranteed by The Xxxxxxx Xxxxx Group, Inc. ("Goldman Group"), and Xxxxxxx Xxxxx
Mortgage Company, L.P. ("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 Derivatives
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 the Transaction to which this Confirmation
relates, and this Confirmation evidences the sole Transaction for the benefit of
the certificate holders of the GSAMP Trust 2006-S6 ("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 "Agreement") 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 Quotation 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; provided however, with respect to
GSAMP 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" (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 5(b)(i)
Illegality, 5(b)(ii) Tax Event and 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 Section 4B) shall apply and (ix) Set-off under Section 6(e) will not apply.
In the event of any inconsistency between the Definitions, the Agreement 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 the paragraph 4(A) hereof, this
Transaction shall be governed by the ISDA Master Agreement between such parties
as of October 20, 2006.
3. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Notional Amount: USD 189,563,694 (subject to
adjustment in accordance with
the Schedule set forth in Annex
I hereto)
Trade Date: October 11, 2006
Effective Date: Xxxxx 00, 0000
Xxxxxxxxxxx Date: October 25, 2011, subject to
adjustment in accordance with
the Modified Following Business
Day Convention
Initial Payment: USD 155,000 payable by
Counterparty to GSCM on the
Effective Date
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 April 25,
2007 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 April 25,
2007 and ending on the
Termination Date, subject to
adjustment in accordance with
the Modified Following Business
Day Convention.
Fixed Rate: 4.97%
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
Governing Law: New York law
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 Sachs Mitsui
Marine Derivative Products, L.P. ("GSMMDP") and (ii) by GS Mortgage Securities
Corp. to GSAMP, and by GSAMP, through a collateral assignment, to Deutsche Bank
National Trust Company (the "Trustee"), as trustee on behalf of the holders of
the GSAMP 2006-S6 Mortgage Pass Through Certificates (CUSIP Number: 36245C XX 0,
00000X XX 2, 36245C AF 9, 36245C AG 7, 36245C AH 5 and 36245C AJ 1; the
"Certificates") (each such assignee is referred to herein as an "Assignee" and
each such assignor is referred to herein as an "Assignor"). These 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 the Transaction to an Assignee, the Assignee shall
accept assignment of the 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, the 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 the 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 the 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 the Transaction after the Assignment Date, with the same force and effect
as if Assignee had been a party to the Transaction originally; it being
understood and agreed that, with respect to the Trustee as Assignee, the Trustee
is an assignee solely by reason of its capacity as trustee (and not in its
individual capacity) and the Trustee 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 Party consents to the sale, assignment and transfer by Assignor 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 the 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 the 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 the Transaction as provided herein and has taken
all necessary action to authorize such assignment and delegation; and (iii) such
assignment and delegation are its legal, valid, and binding obligations
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 the jurisdiction of its organization; (ii)
it has all requisite power and authority to assume the rights and obligations of
Assignor under the Transaction as provided herein and perform its obligations
under the Transaction and has taken all necessary action to authorize such
assumption and performance; and (iii) such assumption and the Transaction are
its legal, valid, and binding obligations enforceable against Assignee in
accordance with the terms hereof.
(f) Assignor and Constant Party acknowledge that, as of the Assignment Date, no
amounts are owed by Assignor or Constant Party to the other under the
Transaction to which this assignment relates.
(g) Any additional assignments of this Transaction to a party other than an
Assignee shall require the consent of GSCM or GSMMDP, as the case may be, 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 GSCM or GSMMDP, as the case may be, shall not
consent to such additional assignments of this Transaction, until written
confirmation of consent is received from the rating agencies that have rated the
Certificates that such assignment will not result in a withdrawal or downgrade
of the rating of the Certificates. Furthermore, no amendment of this
Confirmation by an Assignee or other permitted assign shall be made, and GSCM or
GSMMDP, as the case may be, shall not consent to such amendment of tills
Confirmation, until written confirmation from the rating agency is received that
it has rated the Certificates and such amendment will not result in a withdrawal
or downgrade of the rating of the Certificates.
B. Limited Recourse; Non-Petition Provision:
To the extent GSAMP or the Trustee is a counterparty to GSMMDP under the terms
of this Transaction, the obligations of GSMMDP 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
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.
C. Trustee Capacity:
It is expressly understood and agreed by the parties hereto that insofar as this
Confirmation is executed by the Trustee (i) this Agreement is executed and
delivered by Deutsche Bank National Trust Company not in its individual capacity
but solely as Trustee under the Master Servicing and Trust Agreement dated as of
[please provide], among [please provide], in the exercise of the powers and
authority conferred to and vested in it thereunder and (ii) under no
circumstances shall Deutsche Bank National Trust Company 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 Confirmation
on behalf of GSAMP Trust 2006-S6.
5. The parties hereby agree (a) to check this Confirmation (Reference No.:
NUUS6107K0 (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 Sachs Capital Markets, L.L.C.
General Partner
By: /s/ Xxxxx Xxxxx
-----------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
Agreed and Accepted By:
XXXXXXX XXXXX MITSUI MARINE DERIVATIVE PRODUCTS, L.P.
By: GSMMDPGP, Inc.,
General Partner
By: /s/ Xxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
Agreed and Accepted By:
Xxxxxxx Sachs Mortgage Company, L.P.
By: /s/ Xxxxxxxx Xxxx
----------------------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
Agreed and Accepted By:
Deutsche Bank National Trust Company, not in its individual capacity, but solely
as Trustee, on behalf of the Trust
By: /s/ Xxxxxxx Xxxxx
----------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
Annex I
Schedule
For the Calculation Period The applicable USD
from and including:** To but excluding:** Notional Amount shall be:
-------------------------- ------------------- -------------------------
March 25, 2007 April 25, 2007 189,563,694.00
April 25, 2007 May 25, 2007 171,608,967.00
May 25, 2007 June 25, 2007 154,684,210.00
June 25, 2007 July 25, 2007 138,780,249.00
July 25, 2007 August 25, 2007 123,800,948.00
August 25, 2007 September 25, 2007 109,739,238.00
September 25, 2007 October 25, 2007 96,521,398.00
October 25, 2007 November 25, 2007 85,251,326.00
November 25, 2007 December 25, 2007 85,251,326.00
December 25, 2007 January 25, 2008 85,251,326.00
January 25, 2008 February 25, 2008 85,251,326.00
February 25, 2008 March 25, 2008 85,251,326.00
March 25, 2008 April 25, 2008 85,251,326.00
April 25, 2008 May 25, 2008 85,251,326.00
May 25, 2008 June 25, 2008 80,554,069.00
June 25, 2008 July 25, 2008 73,554,233.00
July 25, 2008 August 25, 2008 66,977,759.00
August 25, 2008 September 25, 2008 60,799,064.00
September 25, 2008 October 25, 2008 60,799,064.00
October 25, 2008 November 25, 2008 60,799,064.00
November 25, 2008 December 25, 2008 60,799,064.00
December 25, 2008 January 25, 2009 59,882,490.00
January 25, 2009 February 25, 2009 56,255,335.00
February 25, 2009 March 25, 2009 52,847,644.00
March 25, 2009 April 25, 2009 49,646,150.00
April 25, 2009 May 25, 2009 46,638,386.00
May 25, 2009 June 25, 2009 43,812,642.00
June 25, 2009 July 25, 2009 41,157,911.00
July 25, 2009 August 25, 2009 38,663,854.00
August 25, 2009 September 25, 2009 38,320,756.00
September 25, 2009 October 25, 2009 34,119,489.00
October 25, 2009 November 25, 2009 32,051,476.00
November 25, 2009 December 25, 2009 30,108,657.00
December 25, 2009 January 25, 2010 28,283,462.00
January 25, 2010 February 25, 2010 26,568,777.00
February 25, 2010 March 25, 2010 24,957,917.00
March 25, 2010 April 25, 2010 23,444,603.00
April 25, 2010 May 25, 2010 22,022,931.00
May 25, 2010 June 25, 2010 20,687,362.00
June 25, 2010 July 25, 2010 19,432,683.00
July 25, 2010 August 25, 2010 18,254,001.00
August 25, 2010 September 25, 2010 17,148,720.00
September 25, 2010 October 25, 2010 16,106,516.00
October 25, 2010 November 25, 2010 15,129,332.00
November 25, 2010 December 25, 2010 14,211,354.00
December 25, 2010 January 25, 2011 13,348,999.00
January 25, 2011 February 25, 2011 12,538,900.00
February 25, 2011 March 25, 2011 11,777,895.00
March 25, 2011 April 25, 2011 11,063,010.00
April 25, 2011 May 25, 2011 10,391,456.00
May 25, 2011 June 25, 2011 9,760,609.00
June 25, 2011 July 25, 2011 9,168,004.00
July 25, 2011 August 25, 2011 8,611,325.00
August 25, 2011 September 25, 2011 8,088,397.00
September 25, 2011 October 25, 2011 7,597,177.00
**Subject to adjustment in accordance with the Modified Following Business Day
Convention
EXHIBIT 10.12
EXHIBIT V
REPRESENTATIONS AND WARRANTIES AGREEMENT
This REPRESENTATIONS AND WARRANTIES AGREEMENT ("Agreement"), dated as of
October 20, 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 "Quicken Mortgage
Loans") set forth on the mortgage loan schedule attached hereto as Schedule I
(the "Quicken Mortgage Loan Schedule") from Quicken Loans, Inc. ("Quicken")
pursuant to that certain Amended and Restated Seller's Purchase, Warranties and
Interim Servicing Agreement, dated as of June 1, 2006 (the "Quicken Purchase
Agreement"), between GSMC, as purchaser, and Quicken, as seller;
WHEREAS, GSMC acquired certain mortgage loans (the "Conduit Mortgage
Loans" and together with the Quicken Mortgage Loans, the "Mortgage Loans"), the
Conduit Mortgage Loans set forth on the mortgage loan schedule attached hereto
as Schedule III (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 Quicken Purchase Agreement, the
"Purchase Agreements"), each between GSMC, as purchaser, and the applicable
mortgage loan seller, as seller;
WHEREAS, pursuant to that certain xxxx of sale, dated as of October 20,
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 October 1, 2006 (the "Pooling and Servicing Agreement"), among the
Depositor, Ocwen Loan Servicing, LLC, as a servicer (the "Servicer"), and
Deutsche Bank National Trust Company, as trustee (collectively, the "Trustee"),
the GSAMP Trust 2006-S6 (the "Trust") shall issue its Mortgage Pass-Through
Certificates, Series 2006-S6 (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 Quicken 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 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).
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 any Mortgage Loan 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 clauses (t), (x), (bb),
(cc), (dd) and (ff) of Exhibit III, 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 Mortgage Loan is required to be repurchased due to an
early payment default under the Purchase Agreements, GSMC shall pay to GSAMP
Trust 2006-S6 (the "Trust") the applicable repurchase price pursuant to the
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
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 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 Sachs Real Estate Funding
Corp., its General Partner
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Name: Xxxx X. Xxxxx
Title: Managing Director
GS MORTGAGE SECURITIES CORP.
By: /s/ Xxxxxxxx Xxxx
--------------------------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
EXHIBIT I
Representations and Warranties Regarding the Quicken Mortgage Loans
(a) The information set forth in the Quicken Mortgage Loan Schedule,
including any diskette or other related data tapes sent to GSMC, is complete,
true and correct in all material respects;
(b) The Mortgage creates a (A) first lien and first priority ownership
interest with respect to each first lien Mortgage Loan, or (B) second lien and
second priority ownership interest with respect to each Second Lien Mortgage
Loan, in the Mortgaged Property securing the related Mortgage Note;
(c) The Quicken Mortgage Loan is not delinquent in payment more than 30
days and has not been dishonored; there are no material defaults under the terms
of the Quicken Mortgage Loan; Quicken has not advanced funds, or induced,
solicited or knowingly received any advance of funds from a party other than the
owner of the Mortgaged Property subject to the Mortgage, directly or indirectly,
for the payment of any amount required by the Quicken Mortgage Loan; no payment
with respect to each Quicken Mortgage Loan has been delinquent for more than
thirty (30) days during the preceding twelve-month period (for the purposes of
this subsection (c), a Monthly Payment is deemed "delinquent" if it has not been
paid by the applicable Due Date);
(d) 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 escrow funds have been established in an amount
sufficient to pay for every such escrowed item which remains unpaid and which
has been assessed but is not yet due and payable;
(e) The terms of the Mortgage Note and the Mortgage have not been
impaired, waived, altered or modified in any respect, except by written
instruments which have been recorded to the extent any such recordation is
required by law. No instrument of waiver, alteration or modification has been
executed, and no Mortgagor has been released, in whole or in part, from the
terms thereof except in connection with an assumption agreement and which
assumption agreement is part of the Mortgage File and the terms of which are
reflected in the Quicken Mortgage Loan Schedule; the substance of any such
waiver, alteration or modification has been approved by the issuer of any
related Primary Mortgage Insurance Policy and title insurance policy, to the
extent required by the related policies. No Mortgagor has been released, in
whole or in part (except as may be required pursuant to applicable law);
(f) The Mortgage Note and the Mortgage are 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 the
Mortgage Note or Mortgage unenforceable, in whole or in part, or subject to any
right of rescission, set-off, counterclaim or defense, including the defense of
usury, and no such right of rescission, set-off, counterclaim or defense has
been asserted with respect thereto; and the Mortgagor was not a debtor in any
state or federal bankruptcy or insolvency proceeding at the time the Quicken
Mortgage Loan was originated;
(g) With respect to Quicken Mortgage Loans secured by a first lien, all
buildings or other customarily insured improvements upon the Mortgaged Property
are insured by an insurer acceptable under the Xxxxxx Xxx Guides, against loss
by fire, hazards of extended coverage and such other hazards as are provided for
in the Xxxxxx Mae Guides or by the Xxxxxxx Mac Guides, in an amount representing
coverage not less than the lesser of (i) the maximum insurable value of the
improvements securing such Quicken Mortgage Loans or (ii) the outstanding
principal balance of the Quicken Mortgage Loan plus with respect to any Second
Lien Mortgage Loan, the outstanding principal balance of the related first lien
mortgage loan, in each case, an amount such that the proceeds thereof shall be
sufficient to prevent the Mortgagor and/or the mortgagee from becoming a
co-insurer. All such standard hazard policies are in full force and effect and
on the date of origination contained a standard mortgagee clause naming Quicken
and its successors in interest and assigns as loss payee and such clause is
still in effect and all premiums due thereon have been paid. If required by the
Flood Disaster Protection Act of 1973, as amended, the Quicken Mortgage Loan is
covered by a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration which policy conforms to
Xxxxxx Mae and Xxxxxxx Mac requirements, in an amount not less than the amount
required by the Flood Disaster Protection Act of 1973, as amended. Such policy
was issued by an insurer acceptable under Xxxxxx Mae or Xxxxxxx Mac guidelines.
The Mortgage obligates the Mortgagor thereunder to maintain all such insurance
at the Mortgagor's cost and expense, and upon the Mortgagor's failure to do so,
authorizes the holder of the Mortgage to maintain such insurance at the
Mortgagor's cost and expense and to seek reimbursement therefor from the
Mortgagor. Where required by state law or regulation, the Mortgage 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 GSMC upon the
consummation of the transactions contemplated by this Agreement. Quicken has not
engaged in, and has no actual knowledge of the Mortgagor or any servicer 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 Quicken;
(h) Any and all requirements of any federal, state or local law including,
without limitation, usury, predatory and abusive lending, truth-in-lending, real
estate settlement procedures, consumer credit protection, equal credit
opportunity, fair housing, or disclosure laws applicable to the Quicken Mortgage
Loan have been complied with in all material respects;
(i) The Mortgage has not been satisfied, canceled or subordinated, in
whole or in part, or rescinded, 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. Quicken has not waived the performance by the Mortgagor of any
action, if the Mortgagor's failure to perform such action would cause the
Quicken Mortgage Loan to be in default, nor has Quicken waived any default
resulting from any action or inaction by the Mortgagor;
(j) The related Mortgage is a valid, subsisting, enforceable and perfected
first or second lien (as applicable) on the Mortgaged Property including all
buildings on the Mortgaged Property and all installations and mechanical,
electrical, plumbing, heating and air conditioning systems affixed to such
buildings, and all additions, alterations and replacements made at any time with
respect to the foregoing securing the Mortgage Note's original principal
balance. The Mortgage and the Mortgage Note do not contain any evidence of any
security interest or other interest or right thereto. Such lien is free and
clear of all adverse claims, liens and encumbrances having priority over the
first or second lien of the Mortgage subject only to (1) the related first lien
mortgage, (2) the lien of non-delinquent current real property taxes and
assessments not yet due and payable, (3) covenants, conditions and restrictions,
rights of way, easements and other matters of the public record as of the date
of recording which are acceptable to mortgage lending institutions generally and
either (A) which are referred to or otherwise considered in the appraisal made
for the originator of the Quicken Mortgage Loan, or (B) which do not adversely
affect the appraised value of the Mortgaged Property as set forth in such
appraisal, and (4) 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 Quicken
Mortgage Loan establishes and creates a valid, subsisting, enforceable and
perfected (A) first lien and first priority security interest or (B) second lien
and second priority security interest on the property described therein, and
Quicken has the full right to sell and assign the same to GSMC;
(k) The Mortgage Note, the related Mortgage, and each of the other Quicken
Mortgage Loan Documents are original and genuine and each is the legal, valid
and binding obligation of the maker thereof, enforceable in all respects in
accordance with its terms subject to bankruptcy, insolvency, moratorium,
reorganization and other laws of general application affecting the rights of
creditors and by general equitable principles and Quicken has taken all action
necessary to transfer such rights of enforceability to GSMC. All parties to the
Mortgage Note and the Mortgage had the legal capacity to enter into the Quicken
Mortgage Loan and to execute and deliver the Mortgage Note and the Mortgage. The
Mortgage Note and the Mortgage have been duly and properly executed by such
parties. No fraud, error, omission, misrepresentation, negligence or similar
occurrence with respect to a Quicken Mortgage Loan has taken place on the part
of Quicken or the Mortgagor, or, on the part of any other party involved in the
origination of the Quicken Mortgage Loan. The proceeds of the Quicken 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 improvements and as to disbursements of any escrow funds therefor have
been complied with. All costs, fees and expenses incurred in making or closing
the Quicken Mortgage Loan and the recording of the Mortgage were paid or are in
the process of being paid, and the Mortgagor is not entitled to any refund of
any amounts paid or due under the Mortgage Note or Mortgage;
(l) Quicken is the sole owner of record and holder of the Mortgage Loan
and the indebtedness evidenced by the Mortgage Note, and upon recordation GSMC
or its designee will be the owner of record of the Mortgage and the indebtedness
evidenced by the Mortgage Note, and upon the sale of the Quicken Mortgage Loan
to GSMC, Quicken will retain the Servicing File for the benefit of GSMC only for
the purpose of interim servicing and supervising the interim servicing of the
Quicken Mortgage Loan. Immediately prior to the transfer and assignment to GSMC
on the Closing Date, the Quicken Mortgage Loan, including the Mortgage Note and
the Mortgage, were not subject to an assignment or pledge other than in
connection with a security interest granted to a warehouse lender, which
security interest, pursuant to the applicable agreement between such warehouse
lender and Quicken, shall terminate automatically upon the sale of the Quicken
Mortgage Loan to GSMC, and Quicken had good and marketable title to and was the
sole owner thereof and had full right to transfer and sell the Quicken Mortgage
Loan to GSMC free and clear of any encumbrance, equity, lien, pledge, charge,
claim or security interest and has the full right and authority subject to no
interest or participation of, or agreement with, any other party, to sell and
assign the Quicken Mortgage Loan pursuant to this Agreement and following the
sale of the Quicken Mortgage Loan, GSMC will own such Quicken Mortgage Loan free
and clear of any encumbrance, equity, participation interest, lien, pledge,
charge, claim or security interest. Quicken intends to relinquish, as of the
applicable Closing Date, all rights to possess, control and monitor the Quicken
Mortgage Loan, except for the purposes of servicing the Quicken Mortgage Loan as
set forth in this Agreement. Either the Mortgagor is a natural person or the
Mortgagor is an inter-vivos trust acceptable to Xxxxxx Mae;
(m) If required by the applicable loan program and Underwriting Standards,
each Quicken Mortgage Loan is covered by an ALTA lender's title insurance policy
or other generally acceptable form of policy or insurance acceptable to Xxxxxx
Xxx or Xxxxxxx Mac, issued by a title insurer acceptable to Xxxxxx Mae or
Xxxxxxx Mac and qualified to do business in the jurisdiction where the Mortgaged
Property is located, insuring (subject to the exceptions contained in (j)(1),
(2) and (3) above) Quicken, its successors and assigns, as to the first priority
lien (with respect to first lien Quicken Mortgage Loans) or second priority lien
(with respect to Second Lien Mortgage Loans) of the Mortgage in the original
principal amount of the Quicken Mortgage Loan, 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.
Additionally, such policy affirmatively insures ingress and egress to and from,
and against encroachments by or upon, the Mortgaged Property. Where required by
applicable state law or regulation, the Mortgagor has been given the opportunity
to choose the carrier of the required mortgage title insurance. 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.
Quicken, its successors and assigns, are the sole insureds of such lender's
title insurance policy, such title insurance policy has been duly and validly
endorsed to GSMC or the assignment to GSMC of Quicken's interest therein does
not require the consent of or notification to the insurer and such lender's
title insurance policy is in full force and effect and will be in full force and
effect upon the consummation of the transactions contemplated by this Agreement
and the commitment letter. No claims have been made under such lender's title
insurance policy, and no prior holder of the related Mortgage, including
Quicken, has done, by act or omission, anything which would impair the coverage
of such lender's title insurance policy;
(n) There is no default, breach, violation or event of acceleration
existing under the Mortgage or the related 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 permitting
acceleration; and neither Quicken nor any prior mortgagee has waived any
default, breach, violation or event permitting acceleration. With respect to
each Second Lien Mortgage Loan (i) the first lien mortgage loan is in full force
and effect, (ii) there is no default, breach, violation or event of acceleration
existing under such first lien 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, (iv) the mortgage filed for record contains a provision
requesting that the mortgagee under the Second Lien Mortgage Loan receive notice
of any action of the senior lien holder under the related first lien mortgage
and the first lien mortgage contains a provision which affords the mortgagor an
opportunity to cure any default by payment in full or otherwise under the first
lien mortgage, (v) unless otherwise provided in the commitment letter, the
related first lien does not provide for or permit negative amortization under
such first lien Mortgage Loan, and (vi) either no consent for the Quicken
Mortgage Loan is required by the holder of the first lien or such consent has
been obtained and is contained in the Mortgage File;
(o) To Company's knowledge, as of the Closing Date, 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 to the lien of the related Mortgage;
(p) All improvements subject to the Mortgage which were considered in
determining the Appraised Value of the Mortgaged Property lie wholly within the
boundaries and building restriction lines of the Mortgaged Property (and wholly
within the project with respect to a condominium unit) and no improvements on
adjoining properties encroach upon the Mortgaged Property except those which are
insured against by the title insurance policy referred to in clause (m) above
and all improvements on the property comply with all applicable zoning and
subdivision laws and ordinances;
(q) The Quicken Mortgage Loan was originated by Quicken. The Quicken
Mortgage Loan complies with all the material terms, conditions and requirements
of the Underwriting Standards in effect at the time of origination of such
Quicken Mortgage Loan. The Mortgage Notes and Mortgages (exclusive of any
riders) are on forms generally acceptable to (i) Xxxxxx Xxx or Xxxxxxx Mac, or
(ii) sophisticated private investors in the residential secondary mortgage
market. Quicken is currently selling loans that are eligible for sale to Xxxxxx
Mae and/or Xxxxxxx Mac, which loans utilize the same document forms as the
Mortgage Notes and Mortgages (inclusive of any riders). The Quicken Mortgage
Loan bears interest at the Mortgage Interest Rate set forth in the Quicken
Mortgage Loan Schedule, and Monthly Payments under the Mortgage Note are due and
payable on the first day of each month. The Mortgage contains the usual and
enforceable provisions of the originator at the time of origination for the
acceleration of the payment of the unpaid principal amount of the Quicken
Mortgage Loan if the related Mortgaged Property is sold without the prior
consent of the mortgagee thereunder;
(r) To Company's knowledge, as of the Closing Date, the Mortgaged Property
was not subject to any material damage by waste, fire, earthquake, windstorm,
flood or other casualty. At origination of the Quicken Mortgage Loan there was,
and there currently is, no proceeding pending for the total or partial
condemnation of the Mortgaged Property. There have not been any condemnation
proceedings with respect to the Mortgaged Property and there are no such
proceedings scheduled to commence at a future date;
(s) The related 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 Quicken Mortgage Loan and foreclosure on, or
trustee's sale of, the Mortgaged Property pursuant to the proper procedures, the
holder of the Quicken Mortgage Loan will be able to deliver good and
merchantable title to the Mortgaged Property. There is no homestead or other
exemption available to the Mortgagor which would interfere with the right to
sell the Mortgaged Property at a trustee's sale or the right to foreclose the
Mortgage;
(t) If the Mortgage constitutes a deed of trust, a trustee, authorized and
duly qualified if required under applicable law to act 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 GSMC to the trustee under the
deed of trust, except in connection with a trustee's sale or attempted sale
after default by the Mortgagor;
(u) The Mortgage File contains an appraisal of the related Mortgaged
Property signed prior to the final approval of the mortgage loan application by
a Qualified Appraiser, 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 Quicken Mortgage Loan, and
the appraisal and appraiser both satisfy the requirements of Xxxxxx Xxx or
Xxxxxxx Mac and Title XI of FIRREA and the regulations promulgated thereunder,
all as in effect on the date the Quicken Mortgage Loan was originated. The
appraisal is in a form acceptable to Xxxxxx Mae or Xxxxxxx Mac. Notwithstanding
the previous two sentences, in accordance with the applicable loan program and
Underwriting Standards, the Mortgage File may contain, in lieu of an appraisal,
a valuation based upon an alternative collateral assessment tool, including, but
not limited to, an AVM, broker's price opinion, XXX-0 Xxxxxxxxxx Xxxxxxxxx, Xxxx
0000 or Form 1004;
(v) All parties which have had any interest in the Mortgage, whether as
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 wherein the
Mortgaged Property is located, and (B) (1) organized under the laws of such
state, or (2) qualified to do business in such state, or (3) federal savings and
loan associations or national banks or a Federal Home Loan Bank or savings bank
having principal offices in such state, or (4) not doing business in such state
(or is otherwise exempt under applicable law from licensing or qualification);
(w) As of the Closing Date, the related 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 (j) above and such collateral does not serve as security for any
other obligation;
(x) The Mortgagor has received all disclosure materials required by
applicable law with respect to the making of such mortgage loans; and, if the
Quicken Mortgage Loan is a refinanced Quicken Mortgage Loan, rescission
materials required by applicable laws, and Quicken shall maintain in its
possession, available for GSMC's inspection upon reasonable written request, and
shall deliver to GSMC upon receipt of written demand therefor, evidence of
compliance with all such requirements;
(y) The Quicken Mortgage Loan does not contain "graduated payment"
features and does not have a shared appreciation or other contingent interest
feature; no Quicken Mortgage Loan contains any buydown provisions;
(z) As of the Closing Date, the Mortgagor is not in bankruptcy and the
Mortgagor is not insolvent and Quicken has no knowledge of any circumstances or
condition with respect to the Mortgage, the Mortgaged Property, the Mortgagor or
the Mortgagor's credit standing that could reasonably be expected to cause
investors to regard the Quicken Mortgage Loan as an unacceptable investment,
cause the Quicken Mortgage Loan to become delinquent, or materially adversely
affect the value or marketability of the Quicken Mortgage Loan;
(aa) The Quicken Mortgage Loans have an original term to maturity of not
more than 30 years, with interest payable in arrears on the first day of each
month. Each Mortgage Note requires a monthly payment which is sufficient to
fully amortize the unpaid principal balance over the remaining term and to pay
interest at the related Mortgage Interest Rate. With respect to Quicken Mortgage
Loans with an initial "interest only" payment period, the monthly payments due
under the related Mortgage Note satisfy only the monthly interest on the unpaid
principal balance of the applicable Quicken Mortgage Loan. After the initial
"interest only" period, each Mortgage Note requires a monthly payment which is
sufficient to fully amortize the unpaid principal balance over the remaining
term and to pay interest at the related Mortgage Interest Rate. In any case, no
Quicken Mortgage Loan contains terms or provisions which would result in
negative amortization.
(bb) If a Quicken Mortgage Loan has an LTV greater than 80%, the Quicken
Mortgage Loan will have mortgage insurance in accordance with the terms of the
Xxxxxx Mae Guides and will be insured as to payment defaults by a Primary
Mortgage Insurance Policy issued by a Qualified Insurer. All provisions of such
Primary Mortgage Insurance Policy have been and are being complied with, such
policy is in full force and effect, and all premiums due thereunder have been
paid. No action, inaction, or event has occurred and no state of facts exists
that has, or will result in the exclusion from, denial of, or defense to
coverage. Any Quicken Mortgage Loan subject to a Primary Mortgage Insurance
Policy obligates the Mortgagor thereunder to maintain the Primary Mortgage
Insurance Policy and to pay all premiums and charges in connection therewith.
The mortgage interest rate for the Quicken Mortgage Loan as set forth on the
Quicken Mortgage Loan Schedule is net of any such insurance premium. No Quicken
Mortgage Loan is subject to a lender-paid mortgage insurance policy;
(cc) As to any Quicken Mortgage Loan which is not a MERS Mortgage Loan,
the Assignment of Mortgage is in recordable form and is acceptable for recording
under the laws of the jurisdiction in which the Mortgaged Property is located;
(dd) The Mortgaged Property is located in the state identified in the
Quicken Mortgage Loan Schedule and consists of a single parcel of real property
with a detached single family residence erected thereon, or a townhouse, 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 or a de minimis
planned unit development, provided, however, that no residence or dwelling is a
single parcel of real property with a cooperative housing corporation erected
thereon, or a mobile home. 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;
(ee) Payments of principal and/or interest on the Quicken Mortgage Loan
commenced no more than sixty (60) days after the funds were disbursed in
connection with the Quicken Mortgage Loan. The Mortgage Note is payable on the
first day of each month;
(ff) The prepayment penalty provisions applicable to any Quicken Mortgage
Loans are enforceable and were originated in compliance with all applicable
federal, state and local laws. No Quicken Mortgage Loan originated on or after
October 1, 2002, will impose a prepayment premium for a term in excess of three
years after its origination. No Quicken Mortgage Loan originated before October
1, 2002, will impose a prepayment premium for a term in excess of five years
after its origination;
(gg) As of the date of each Mortgage Note and, to the best of Quicken's
knowledge, as of the Closing Date, the Mortgaged Property is lawfully occupied
under applicable law, and 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;
(hh) If the Mortgaged Property is a condominium unit or a planned unit
development (other than a de minimis planned unit development), or stock in a
cooperative housing corporation, such condominium, cooperative or planned unit
development project (i) meets the eligibility requirements of Xxxxxx Xxx and
Xxxxxxx Mac, or (ii) satisfies the applicable Underwriting Standards;
(ii) 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; nothing further remains to be done to satisfy in full
all requirements of each environmental law, rule or regulation with respect to
the Mortgaged Property, the satisfaction of which constitute a prerequisite to
use and enjoyment of said property; and, to Quicken's knowledge, there is no
violation of any environmental law, rule or regulation with respect to the
Mortgaged Property;
(jj) The Mortgagor has not notified Quicken requesting relief under the
Servicemembers' Civil Relief Act, formerly known as the Soldiers' and Sailors'
Civil Relief Act of 1940, and Quicken has no knowledge of any relief requested
or allowed to the Mortgagor under the Servicemembers' Civil Relief Act;
(kk) As of the Closing Date, no Quicken Mortgage Loan was in construction
or rehabilitation status or has facilitated the trade-in or exchange of a
Mortgaged Property;
(ll) No action has been taken or failed to be taken by Quicken on or prior
to the Closing Date which has resulted or will result in an exclusion from,
denial of, or defense to coverage under any insurance policy related to a
Quicken Mortgage Loan (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 Quicken, or for any other reason under such coverage;
(mm) The Quicken 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 similar institution which is
supervised and examined by a federal or state authority;
(nn) Each Quicken Mortgage Loan that is secured by a leasehold interest
conforms to the Xxxxxx Xxx requirements for mortgage loans secured by leasehold
estates;
(oo) With respect to any broker fees collected and paid on any of the
Quicken Mortgage Loans, all broker fees have been properly assessed to the
Mortgagor and no claims will arise as to broker fees that are double charged and
for which the Mortgagor would be entitled to reimbursement;
(pp) With respect to any Quicken Mortgage Loan as to which an affidavit
has been delivered to GSMC certifying that the original Mortgage Note has been
lost or destroyed and not been replaced, if such Quicken Mortgage Loan is
subsequently in default, the enforcement of such Quicken Mortgage Loan will not
be materially adversely affected by the absence of the original Mortgage Note;
(qq) Each Quicken Mortgage Loan constitutes a qualified mortgage under
Section 860G(a)(3)(A) of the Code and Treasury Regulations Section
1.860G-2(a)(1);
(rr) Except as provided in Section 2.07 of the Quicken Purchase Agreement,
the Mortgage Note, the Mortgage, the Assignment of Mortgage and the other
Quicken Mortgage Loan Documents set forth in Exhibit A-1 and required to be
delivered on the Closing Date have been delivered to GSMC or its designee all in
compliance with the specific requirements of this Agreement. With respect to
each Quicken Mortgage Loan, Quicken is in possession of a complete Mortgage File
and Servicing File except for such documents as have been delivered to GSMC or
its designee, or have been sent for recording in accordance with Section 2.07 of
the Quicken Purchase Agreement;
(ss) To Quicken's knowledge, all information supplied by, on behalf of, or
concerning the Mortgagor is true, accurate and complete in all material respects
and does not contain any statement that is or will be inaccurate or misleading
in any material respect;
(tt) To Quicken's knowledge, there does not exist on the related Mortgage
Property any hazardous substances, hazardous wastes or solid wastes, as such
terms are defined in the Comprehensive Environmental Response Compensation and
Liability Act, the Resource Conservation and Recovery Act of 1976, or other
federal, state or local environmental legislation;
(uu) All disclosure materials required by applicable law with respect to
the making of fixed rate and adjustable rate mortgage loans have been received
by the Mortgagor;
(vv) No Quicken Mortgage Loan that is a Second Lien Mortgage Loan has a
CLTV in excess of 100%. No Quicken Mortgage Loan had a Loan-to-Value Ratio at
the time of origination of more than 95%;
(ww) None of the Quicken Mortgage Loans are subject to the Home Ownership
and Equity Protection Act of 1994 or any comparable state or local law. No
Quicken Mortgage Loan is a High Cost Loan or Covered Loan. No "predatory" or
"deceptive" lending practices (as defined by applicable law) were employed in
the origination of the Quicken Mortgage Loan;
(xx) None of the proceeds of the Quicken Mortgage Loan were used to
finance single-premium credit insurance policies;
(yy) Any principal advances made to the Mortgagor prior to the Closing
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. If required by the applicable loan
program and Underwriting Standards, 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 Mae and Xxxxxxx Mac. The consolidated principal amount does
not exceed the original principal amount of the Quicken Mortgage Loan;
(zz) Interest on each Quicken Mortgage Loan is calculated on the basis of
a 360-day year consisting of twelve 30-day months;
(aaa) Unless specifically identified as a balloon loan on the applicable
commitment letter and/or Quicken Mortgage Loan Schedule, no Quicken Mortgage
Loan is a balloon loan;
(bbb) With respect to each MERS Mortgage Loan, a MIN has been assigned by
MERS and such MIN is accurately provided on the Quicken Mortgage Loan Schedule.
The related assignment of Mortgage to MERS has been duly and properly recorded;
(ccc) With respect to each MERS Mortgage Loan, Quicken has not received
any notice of liens or legal actions with respect to such Mortgage Loan and no
such notices have been electronically posted by MERS;
(ddd) None of the Mortgaged Properties are manufactured housing or mobile
homes;
(eee) With respect to each Quicken Mortgage Loan, Quicken, has fully and
accurately furnished complete information on the related borrower credit files
to Equifax, Experian and Trans Union Credit Information Company, in accordance
with the Fair Credit Reporting Act and its implementing regulations;
(fff) Quicken has complied in all material respects with all applicable
anti-money laundering laws and regulations, including without limitation the USA
Patriot Act of 2001 (collectively, the "Anti-Money Laundering Laws"); Quicken
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 Quicken Mortgage Loan required by the
Anti-Money Laundering Laws, and maintains, and will maintain, sufficient
information to identify the applicable Mortgagor for purposes of the Anti-Money
Laundering Laws;
(ggg) Each Quicken 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;
(hhh) No Quicken Mortgage Loan is "high cost" as defined by any applicable
federal, state, or local predatory or abusive lending law. Any breach of this
representation shall be deemed to materially and adversely affect the value of
the Quicken Mortgage Loan and shall require a repurchase of the affected Quicken
Mortgage Loan;
(iii) No Quicken Mortgage Loan was originated on or after October 1, 2002
and prior to March 7, 2003, which is secured by property located in the State of
Georgia. No Quicken Mortgage Loan was originated on or after March 7, 2003 which
is a "high cost home loan" as defined under the Georgia Fair Lending Act. Any
breach of this representation shall be deemed to materially and adversely affect
the value of the Quicken Mortgage Loan and shall require a repurchase of the
affected Quicken Mortgage Loan;
(jjj) No Quicken Mortgage Loan which is secured by property located in the
State of New Jersey is a "High-Cost Home Loan" as defined in the New Jersey Home
Ownership Act, which became effective November 27, 2003;
(kkk) No Quicken Mortgage Loan which is secured by property located in the
State of New Mexico is a "High-Cost Home Loan" as defined in the New Mexico Home
Loan Protection Act, which became effective January 1, 2004;
(lll) No Quicken Mortgage Loan which is secured by property located in the
State of Kentucky is a "High-Cost Home Loan" as defined in the Kentucky House
Xxxx 287, which became effective June 24, 2003;
(mmm) Each Imaged Document represents a true, complete, and correct copy
of the Original Document in all respects, including, but not limited to, all
signatures conforming with signatures contained in the Original Document, no
information having been added or deleted, and no Imaged Document having been
manipulated or altered in any manner. Each Imaged Document is clear and legible,
including, but not limited to, accurate reproductions of photographs. No
Original Documents have been or will be altered in any manner;
(nnn) No Quicken Mortgage Loan which is secured by property located in the
Commonwealth of Massachusetts is a "High Cost Home Mortgage Loan" as defined in
the Massachusetts Predatory Home Loan Practices Act (Mass. Xxx. Laws ch. 183C)
which became effective November 7, 2004;
(ooo) All documents in the Servicing File signed electronically have been
executed by the Mortgagor and relevant parties in compliance with the federal
Electronic Signatures in Global and National Commerce Act and, if applicable,
the Uniform Electronic Transactions Act adopted by the state in which the
electronic records relating to such document or disclosure is initiated, and in
compliance with any other similar and applicable federal, state, or local law;
(ppp) All documents in the Servicing File signed electronically have been
executed by the Mortgagor and relevant parties in compliance with the federal
Electronic Signatures in Global and National Commerce Act and, if applicable,
the Uniform Electronic Transactions Act adopted by the state in which the
electronic records relating to such document;
(qqq) Except with respect to any interest-only Quicken Mortgage Loans (as
specified in any commitment letter and/or Quicken Mortgage Loan Schedule),
principal payments on the Quicken Mortgage Loan commenced no more than sixty
(60) days after funds were disbursed in connection with the Quicken Mortgage
Loan. The Mortgage Interest Rate (as well as the Lifetime Rate Cap and the
Periodic Rate Cap, if applicable) are set forth in the Quicken Mortgage Loan
Schedule. Except with respect to any interest-only Quicken Mortgage Loans and/or
option ARM loans (as specified in any commitment letter and/or Quicken 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 Quicken Mortgage
Loan fully by the stated maturity date, over an original term of not more than
thirty (30) years from commencement of amortization. The Quicken Mortgage Loan
is payable on the first day of each month;
(rrr) 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
Quicken 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 Quicken are not subject to the bulk transfer or similar statutory provisions
in effect in any applicable jurisdiction;
(sss) There is no action, suit, proceeding, investigation, or litigation
pending or, to Quicken's knowledge, threatened, with respect to the Quicken
Mortgage Loan or the Mortgaged Property;
(ttt) No Quicken Mortgage Loan is an "equity loan" within the meaning of
Section 50(a)(6), Article XVI of the Texas Constitution;
(uuu) No Quicken Mortgage Loan that is secured by property located in
Illinois is in violation of the provisions of the Illinois Interest Act (815
Ill. Comp. Stat. 205/1 et seq.);
(vvv) No Quicken Mortgage Loan is subject to a written foreclosure
agreement or pending foreclosure proceeding;
(www) The Quicken Mortgage Loan does not contain provisions pursuant to
which monthly payments are paid or partially paid with funds by any source other
than the Mortgagor nor does it contain any other similar provisions which may
constitute a "buydown" provision. The Quicken Mortgage Loan is not a graduated
payment mortgage loan and the Quicken Mortgage Loan does not have a shared
appreciation or other contingent interest feature;
(xxx) Subject to the terms of Section 2.07 above of the Quicken Purchase
Agreement, each original Mortgage was recorded and, except for those Quicken
Mortgage Loans subject to the MERS identification system, all subsequent
assignments of the original Mortgage (other than the assignment to GSMC) have
been recorded in the appropriate jurisdictions wherein such recordation is
necessary to perfect the lien thereof as against creditors of Quicken, or is in
the process of being recorded;
(yyy) With respect to any Quicken Mortgage Loan originated on or after
August 1, 2004, neither the related Mortgage nor the related Mortgage Note
requires the borrower to submit to arbitration to resolve any disputes arising
out of or relating in way to the Quicken Mortgage Loan transaction;
(zzz) 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 Quicken Mortgage Loan. No proceeds from any Quicken Mortgage
Loan were used to purchase single premium credit insurance policies as part of
the origination of, or as a condition to closing, such Quicken Mortgage Loan;
(aaaa) All points and fees related to each Quicken Mortgage Loan were
disclosed in writing to the borrower in accordance with applicable state and
federal law and regulation. With respect to the Quicken Mortgage Loans
designated as "conforming" on the Quicken Mortgage Loan Schedule, except in the
case of a Quicken 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 Xxxxxx Mae's anti-predatory lending requirements as set forth
in the Xxxxxx Xxx Selling Guide; and
(bbbb) 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 Quicken Mortgage Loan has been disclosed in
writing to the Mortgagor in accordance with applicable state and federal laws
and regulations.
EXHIBIT II
Representations and Warranties Regarding the Conduit Mortgage Loans
(a) Mortgage Loans as Described. The information set forth in the Mortgage
Loan Schedule with respect to the 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 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 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 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 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 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 Mortgage Loan. In addition, the
changes to the terms have been delivered to the Purchaser or its designee and
reflected on the Loan Schedule. No Mortgage Loan has been modified so as to
restructure the payment obligations or extend the maturity date of the 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 Mortgage 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 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 Mortgage Loan is 30 or more days delinquent on the Closing Date,
nor has any 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 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 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 Xxxxxxx 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 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 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 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 Mortgage Loan commenced no
more than sixty days after funds were disbursed in connection with such 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 Mortgage Loan Schedule. Except during the interest only period for any
Interest Only Mortgage Loan and with respect to any balloon 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 Mortgage
Loan by the stated maturity date, over an original term of not more than thirty
years from commencement of amortization. No 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 Mortgage Loan contains terms or
provisions which would result in negative amortization;
(x) Prepayment Premiums: Except as set forth in the Mortgage Loan Schedule,
each Mortgage Loan is subject to a Prepayment Premium except as set forth on the
Mortgage Loan Schedule. With respect to each 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
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 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 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 Mortgage Loan is a High Cost or
Covered Loan, as applicable. No 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 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 Mortgage Loan transaction;
(ee) LTV. No Mortgage Loan has a LTV greater than 100%;
(ff) Qualified Mortgage. The 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 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
Quicken Mortgage Loan Schedule
(Available Upon Request to Depositor)
SCHEDULE II
Conduit Mortgage Loan Schedule
(Available Upon Request to Depositor)
EXHIBIT W
FORM OF ADDITIONAL DISCLOSURE NOTIFICATION
**SEND VIA EMAIL TO XXXxx.Xxxxxxxxxxxxx@xx.xxx AND VIA OVERNIGHT MAIL TO THE
ADDRESS IMMEDIATELY BELOW
Deutsche Bank National Trust Company, as trustee
0000 Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Email: XXXxx.Xxxxxxxxxxxxx@xx.xxx
Attn.: Trust & Securities Services - GS065S
Re: **Additional Form [10-D] [10-K] [8-K] Disclosure** Required
Ladies and Gentlemen:
In accordance with Section 8.12 of the Pooling and Servicing
Agreement (the "Agreement"), dated as of October 1, 2006, among GS Mortgage
Securities Corp., as depositor, Ocwen Loan Servicing, LLC, as servicer, and
Deutsche Bank National Trust Company, as trustee, the undersigned, as
[_______________________] hereby notifies you that certain events have come to
our attention that [will] [may] need to be disclosed on Form [10-D] [10-K]
[8-K].
Description of additional Form [10-D] [10-K] [8-K] Disclosure:
List of any Attachments hereto to be included in the Additional Form
[10-D] [10-K] [8-K] Disclosure:
Any inquiries related to this notification should be directed to
[___________________] phone number [_________________]; email address
[__________________].
[NAME OF PARTY],
As [Role]
By:____________________________________
Name:
