GS MORTGAGE SECURITIES CORP., Depositor, OCWEN LOAN SERVICING, LLC, Servicer, Custodian, and DEUTSCHE BANK NATIONAL TRUST COMPANY, Trustee and Custodian POOLING AND SERVICING AGREEMENT Dated as of August 1, 2006 GSAMP TRUST 2006-S5 MORTGAGE...
EXHIBIT
4
GS
MORTGAGE SECURITIES CORP.,
Depositor,
OCWEN
LOAN SERVICING, LLC,
Servicer,
U.S.
BANK
NATIONAL ASSOCIATION,
Custodian,
and
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
Trustee
and Custodian
_____________________________________________
Dated
as
of August 1, 2006
_____________________________________________
MORTGAGE
PASS-THROUGH CERTIFICATES,
SERIES
2006-S5
TABLE
OF
CONTENTS
ARTICLE
I
DEFINITIONS
|
|
Section
1.01
|
Definitions
|
ARTICLE
II
|
|
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 and each
Custodian
|
Section
2.04
|
[RESERVED].
|
Section
2.05
|
Execution
and Delivery of Certificates
|
Section
2.06
|
|
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
|
|
Section
3.02
|
Subservicing
Agreements between the Servicer and Subservicers
|
Section
3.03
|
Successor
Subservicers
|
Section
3.04
|
|
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
|
|
Section
3.24
|
Trustee
to Act as Servicer
|
Section
3.25
|
|
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
|
Distributions
on the REMIC I Regular Interests.
|
ARTICLE
V
THE
CERTIFICATES
|
|
Section
5.01
|
The
Certificates
|
Section
5.02
|
Certificate
Register; Registration of Transfer and Exchange of
Certificates
|
Section
5.03
|
Mutilated,
Destroyed, Lost or Stolen Certificates
|
Section
5.04
|
Persons
Deemed Owners
|
Section
5.05
|
Access
to List of Certificateholders’ Names and Addresses
|
Section
5.06
|
Maintenance
of Office or Agency
|
ARTICLE
VI
|
|
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
|
|
Section
6.05
|
Additional
Indemnification by the Servicer; Third Party Claims
|
ARTICLE
VII
|
|
Section
7.01
|
|
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 each Custodian and the Trustee
|
Section
8.03
|
Trustee
Not Liable for Certificates or Mortgage Loans
|
Section
8.04
|
Trustee
May Own Certificates
|
Section
8.05
|
Trustee’s
Fees and Expenses
|
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
|
|
Section
8.12
|
|
Section
8.13
|
Tax
Classification of the Excess Reserve Fund Account
|
Section
8.14
|
Intention
of the Parties and Interpretation
|
Section
8.15
|
Custodian
Responsibilities.
|
Section
8.16
|
Limitations
on Custodial Responsibilities.
|
ARTICLE
IX
|
|
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
|
|
Section
10.06
|
|
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
|
SCHEDULES
|
|
Schedule
I
|
Mortgage
Loan Schedule
|
Schedule
II
|
Representations
and Warranties of Ocwen, as Servicer
|
Schedule
III
|
Representations
and Warranties of U.S. Bank National Association, as
Custodian
|
EXHIBITS
|
|
Exhibit
A-1
|
Form of
Class A, Class M and Class B
Certificates
|
Exhibit
B
|
Form of
Class P Certificate
|
Exhibit
C
|
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][Custodian]
|
Exhibit
F
|
Form of
Document Certification and Exception Report of the
[Trustee][Custodian]
|
Exhibit
G
|
Form of
Residual Transfer Affidavit
|
Exhibit
H
|
Form of
Transferor Certificate
|
Exhibit
I-1
|
Form of
Rule 144A Letter
|
Exhibit
I-2
|
Form
of Investment Letter (Non Rule 144A)
|
Exhibit
J
|
Form of
Request for Release
|
Exhibit
K
|
Contents
of Each Mortgage File
|
Exhibit
L
|
[Reserved]
|
Exhibit
M
|
Form
of Certification to be provided with Form 10-K
|
Exhibit
N
|
Form
of Trustee Certification to be provided to Depositor
|
Exhibit
O
|
Form
of Servicer Certification to be provided to Depositor
|
Exhibit
P
|
Form
of Power of Attorney
|
Exhibit
Q-1
|
Fremont
Agreements
|
Exhibit
Q-2
|
Impac
Funding Agreements
|
Exhibit
Q-3
|
NC
Capital Agreements
|
Exhibit
Q-4
|
Meritage
Agreements
|
Exhibit
Q-5
|
Residential
Funding Agreements
|
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
|
Representations
and Warranties Agreement
|
Exhibit
V
|
Form
of Additional Disclosure
Notification
|
THIS
POOLING AND SERVICING AGREEMENT, dated as of August 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”), U.S. BANK NATIONAL ASSOCIATION, a national banking association
(“U.S. Bank” and the “Custodian”), and DEUTSCHE BANK NATIONAL TRUST COMPANY, a
national banking association, as trustee (the “Trustee”) and as a
custodian.
In
consideration of the mutual agreements herein contained, the parties hereto
agree as follows:
The
Depositor intends to sell pass-through certificates to be issued hereunder
in
multiple classes, which in the aggregate will evidence the entire beneficial
ownership interest of the Trust Fund created hereunder. The Trust Fund will
consist of a segregated pool of assets comprised of the Mortgage Loans and
certain other related assets subject to this Agreement.
As
provided herein, the Trustee will elect to treat the segregated pool of assets
consisting of the Mortgage Loans and certain other related assets subject to
this Agreement (other than the Prepayment Premiums, the Excess Reserve Fund
Account and the Yield Maintenance Agreement) as a REMIC for federal income
tax
purposes, and such segregated pool of assets will be designated as “REMIC I”.
The Class R-I Interest will be the sole class of “residual interests” in REMIC I
for purposes of the REMIC Provisions (as defined herein). The following table
irrevocably sets forth the designation, the REMIC I Remittance Rate, the initial
Uncertificated Balance and, for purposes of satisfying Treasury regulation
Section 1.860G-1(a)(4)(iii), the “latest possible maturity date” for each
of the REMIC I Regular Interests (as defined herein). None of the REMIC I
Regular Interests will be certificated.
Designation
|
REMIC
I
Remittance
Rate
|
Initial
Uncertificated
Balance
|
Latest
Possible
Maturity
Date (1)
|
I-LTAA
|
Variable(2)
|
$ 324,200,289.49
|
September
25, 2036
|
I-LTA1
|
Variable(2)
|
$
1,644,160.00
|
September
25, 2036
|
I-LTA2
|
Variable(2)
|
$
671,550.00
|
September
25, 2036
|
I-LTM1
|
Variable(2)
|
$
277,890.00
|
September
25, 2036
|
I-LTM2
|
Variable(2)
|
$
86,010.00
|
September
25, 2036
|
I-LTM3
|
Variable(2)
|
$ 158,790.00
|
September
25, 2036
|
I-LTM4
|
Variable(2)
|
$
76,090.00
|
September
25, 2036
|
I-LTM5
|
Variable(2)
|
$
84,360.00
|
September
25, 2036
|
I-LTM6
|
Variable(2)
|
$
72,780.00
|
September
25, 2036
|
I-LTM7
|
Variable(2)
|
$
49,620.00
|
September
25, 2036
|
I-LTB1
|
Variable(2)
|
$
64,510.00
|
September
25, 2036
|
I-LTB2
|
Variable(2)
|
$
56,240.00
|
September
25, 2036
|
I-LTZZ
|
Variable(2)
|
$
3,374,332.44
|
September
25, 2036
|
___________________________
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date in the month immediately following the maturity
date
for the Mortgage Loan with the latest maturity date has been designated
as
the “latest possible maturity date” for each REMIC I Regular
Interest.
|
(2)
|
Calculated
in accordance with the definition of “REMIC I Remittance Rate”
herein.
|
As
provided herein, the Trustee will elect to treat the segregated pool of assets
consisting of the REMIC I Regular Interests as a REMIC for federal income tax
purposes, and such segregated pool of assets will be designated as “REMIC II.”
The Class R-II Interest will evidence the sole class of “residual interests” in
REMIC II for purposes of the REMIC Provisions. The following table irrevocably
sets forth the designation, the Pass-Through Rate, the initial aggregate
Certificate Balance and, for purposes of satisfying Treasury regulation
Section 1.860G-1(a)(4)(iii), the “latest possible maturity date” for the
indicated Classes of Certificates. The Trust Fund will also issue the Class
X-1
Certificates and the Class P Certificates, which will not be issued by any
REMIC
created hereunder.
Designation
|
Pass-Through
Rate
|
Initial
Aggregate Certificate Balance
|
Latest
Possible
Maturity
Date (1)
|
Class
A-1
|
Variable(2)
|
$ 164,416,000.00
|
September
25, 2036
|
Class
A-2
|
Variable(2)
|
$
67,155,000.00
|
September
25, 2036
|
Class
M-1
|
Variable(2)
|
$
27,789,000.00
|
September
25, 2036
|
Class
M-2
|
Variable(2)
|
$
8,601,000.00
|
September
25, 2036
|
Class
M-3
|
Variable(2)
|
$
15,879,000.00
|
September
25, 2036
|
Class
M-4
|
Variable(2)
|
$
7,609,000.00
|
September
25, 2036
|
Class
M-5
|
Variable(2)
|
$
8,436,000.00
|
September
25, 2036
|
Class
M-6
|
Variable(2)
|
$
7,278,000.00
|
September
25, 2036
|
Class
M-7
|
Variable(2)
|
$
4,962,000.00
|
September
25, 2036
|
Class
B-1
|
Variable(2)
|
$
6,451,000.00
|
September
25, 2036
|
Class
B-2
|
Variable(2)
|
$
5,624,000.00
|
September
25, 2036
|
Class
X
|
N/A(3)
|
$
6,616,621.93(3)
|
September
25, 2036
|
_________________
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date immediately following the maturity date for
the
Mortgage Loan with the latest maturity date has been designated as
the
“latest possible maturity date” for each Class of
Certificates.
|
(2)
|
Calculated
in accordance with the definition of “Pass-Through Rate”
herein.
|
(3)
|
The
Class X Certificates will accrue interest at their variable Pass-Through
Rate on the Notional Amount of the Class X Certificates outstanding
from
time to time which shall equal the Uncertificated Balance of the
REMIC I
Regular Interests. The Class X Certificates will not accrue interest
on
their Certificate Balance.
|
As
of the
Cut-off Date, the Mortgage Loans had an aggregate Stated Principal Balance
equal
to approximately $330,816,621.93.
The
minimum denomination for each Class of Offered Certificates and the Class B-1
Certificates and Class B-2 Certificates will be $25,000 initial Certificate
Balance with integral multiples of $1 in excess thereof. The minimum
denomination for (a) the Class R Certificates will be a 100% Percentage
Interest in each such Class and (b) the Class P and Class X Certificates will
be
a 1% Percentage Interest in each such Class. The Class X-1 Certificates will
be
issued as a single Certificate and will not have a Class Certificate
Balance.
It
is
expected that each Class of Certificates will receive its final distribution
of
principal and interest on or prior to the Final Scheduled Distribution
Date.
Set
forth
below are designations of Classes of Certificates to the categories used
herein:
Book-Entry
Certificates
|
All
Classes of Certificates other than the Physical
Certificates.
|
Class A
Certificates
|
Class A-1
Certificates and Class A-2 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 B
Certificates
|
Class B-1
Certificates and Class B-2 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 B-1,
Class B-2, 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, Class B-1 and Class B-2
Certificates.
|
LIBOR
Certificates
|
The
Class A-1, Class M-1, Class M-2, Class M-3, Class M-4 and Class M-7
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 B-1,
Class B-2, 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, Class M-7,
Class B-1 and Class B-2
Certificates.
|
ARTICLE
I
DEFINITIONS
Section
1.01 Definitions.
Whenever used in this Agreement, the following words and phrases, unless the
context otherwise requires, shall have the following meanings:
Accepted
Servicing Practices: With respect to any Mortgage Loan, those mortgage servicing
practices set forth in Section 3.01 of this Agreement.
Account:
Any of the Collection Account, the Distribution Account or the Excess Reserve
Fund Account. Each Account shall be an Eligible Account.
Accrued
Certificate Interest Distribution Amount: With respect to any Distribution
Date
for each Class of Offered Certificates and the Class B-1 Certificates and Class
B-2 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 not covered by Total Monthly Excess Spread 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).
Adjusted
Net Mortgage Interest Rate: As to each Mortgage Loan and at any time, the per
annum rate equal to the Mortgage Interest Rate less the Expense Fee
Rate.
Advance:
Any P&I Advance or Servicing Advance.
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.
Amount
Held for Future Distribution: As to the Certificates on any Determination Date,
the aggregate amount held in each 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.
Applied
Realized Loss Amount: With respect to any Distribution Date, the amount, if
any,
by which the aggregate Class Certificate Balance of the Offered Certificates
and
the Class B-1 Certificates and Class B-2 Certificates after distributions of
principal and after application of any amounts received under the Yield
Maintenance Agreement 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 Fremont, Impac Funding, NC
Capital, Meritage, Residential Funding or the Purchaser, 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, the Trustee (or co-trustee)
or
the Custodian are entitled to be paid or reimbursed pursuant to this
Agreement.
Basic
Principal Distribution Amount: With respect to any Distribution Date, the excess
of (i) the aggregate Principal Remittance Amount for such Distribution Date
over (ii) the Excess Overcollateralized Amount, if any, for such
Distribution Date.
Basis
Risk Carry Forward Amount: With respect to the LIBOR Certificates and the Class
M-5, Class M-6, Class B-1 and Class B-2 Certificates, as of any Distribution
Date, the sum of (A) if on such Distribution Date the Pass-Through Rate for
any
Class of LIBOR Certificates or Class M-5, Class M-6, Class B-1 or Class B-2
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 the Pass-Through Rate not been subject to the WAC
Cap, over (ii) the amount of interest payable on such Class of Certificates
at the WAC Cap, and (B) the Basis Risk Carry Forward Amount for such Class
of
Certificates for all previous Distribution Dates not previously paid, together
with interest thereon at a rate equal to the applicable Pass-Through Rate for
such Class of Certificates for such Distribution Date (without giving effect
to
the WAC Cap).
Basis
Risk Payment: For any Distribution Date, an amount equal to the lesser of
(i) the aggregate Basis Risk Carry Forward Amounts for such Distribution
Date and (ii) the sum of (a) the Class X Distributable Amount (prior
to any reduction for Basis Risk Payments) and (b) and (b) amounts paid pursuant
to the Yield Maintenance Agreement available for such purpose.
Best’s:
Best’s Key Rating Guide, as the same shall be amended from time to
time.
Book-Entry
Certificates: As specified in the Preliminary Statement.
Business
Day: Any day other than (i) Saturday or Sunday, or (ii) a day on which
banking and savings and loan institutions, in (a) the States of New York,
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, Class M Certificates and Class B Certificates then
outstanding. The aggregate initial Class Certificate Balance of each Class
of
Regular Certificates is set forth in the Preliminary Statement
hereto.
Certificate
Owner: With respect to a Book-Entry Certificate, the Person who is the
beneficial owner of such Book-Entry Certificate.
Certificate
Register: The register maintained pursuant to Section 5.02.
Certificateholder
or Holder: The Person in whose name a Certificate is registered in the
Certificate Register, except that, solely for the purpose of giving any consent
pursuant to this Agreement, any Certificate registered in the name of the
Depositor or any Affiliate of the Depositor shall be deemed not to be
Outstanding and the Percentage Interest evidenced thereby shall not be taken
into account in determining whether the requisite amount of Percentage Interests
necessary to effect such consent has been obtained; provided, however, that
if
any such Person (including the Depositor) owns 100% of the Percentage Interests
evidenced by a Class of Certificates, such Certificates shall be deemed to
be
Outstanding for purposes of any provision hereof that requires the consent
of
the Holders of Certificates of a particular Class as a condition to the
taking of any action hereunder. The Trustee is entitled to rely conclusively
on
a certification of the Depositor or any Affiliate of the Depositor in
determining which Certificates are registered in the name of an Affiliate of
the
Depositor.
Certification:
As defined in Section 8.12(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 (i) the aggregate Class Certificate Balance of the Class A
Certificates immediately prior to such Distribution Date over (ii) the
lesser of (A) 31.70% of the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date and (B) the excess, if any, of
the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date over the Overcollateralization Floor.
Class B
Certificates: As specified in the Preliminary Statement.
Class B-1
Certificates: All Certificates bearing the class designation of
“Class B-1.”
Class B-1
Principal Distribution Amount: With respect to any Distribution Date, the excess
of (i) the sum of (A) the aggregate Class Certificate 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), (H) the Class
Certificate Balance of the Class M-7 Certificates (after taking into
account the distribution of the Class M-7 Principal Distribution Amount on
such Distribution Date) and (I) the Class Certificate Balance of the
Class B-1 Certificates immediately prior to such Distribution Date, over
(ii) the lesser of (A) the product of (x) 84.30% and (y) the aggregate
Stated Principal Balance of the Mortgage Loans for such Distribution Date,
and
(B) the excess, if any, of the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date over the Overcollateralization
Floor.
Class B-2
Certificates: All Certificates bearing the class designation of
“Class B-2.”
Class B-2
Principal Distribution Amount: With respect to any Distribution Date, the excess
of (i) the sum of (A) the aggregate Class Certificate 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), (H) the Class
Certificate Balance of the Class M-7 Certificates (after taking into
account the distribution of the Class M-7 Principal Distribution Amount on
such Distribution Date), (I) the Class Certificate Balance of the Class B-1
Certificates (after taking into account the distribution of the Class B-1
Principal Distribution Amount on such Distribution Date) and (J) the Class
Certificate Balance of the Class B-2 Certificates immediately prior to such
Distribution Date, over (ii) the lesser of (A) the product of (x) 87.70% and
(y) the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date, and (B) the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class
Certificate Balance: With respect to any Class and as to any date of
determination, the aggregate of the Certificate Balances of all Certificates
of
such Class as of such date.
Class 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) 48.50% 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-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) 53.70% and (y) the aggregate Stated Principal Balance of the Mortgage
Loans for such Distribution Date and (B) the excess, if any, of the
Stated Principal Balance of the Mortgage Loans for such Distribution
Date over
the
Overcollateralization Floor.
Class M-3
Certificates: All Certificates bearing the class designation of
“Class M-3.”
Class M-3
Principal Distribution Amount: With respect to any Distribution Date, the excess
of (i) the sum of (A) the aggregate Class Certificate 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) 63.30% 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-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) 67.90% and (y) the aggregate
Stated Principal Balance of the Mortgage Loans for such Distribution Date,
and
(B) the excess, if any, of the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date over the Overcollateralization
Floor.
Class 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) 73.00% and
(y) the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date, and (B) the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class 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) 77.40% 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-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) 80.40% 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 P
Certificates: All Certificates bearing the class designation of
“Class P.”
Class R
Certificates: All Certificates bearing the designation of “Class R” and
representing the Residual Interest in REMIC I and REMIC II.
Class X
Certificates: All Certificates bearing the class designation of “Class X”
(other than the Class X-1 Certificates).
Class X
Distributable Amount: On any Distribution Date, (i) as a distribution in
respect of interest, the amount of interest that has accrued on the Class X
Interest and not applied as an Extra Principal Distribution Amount on such
Distribution Date, plus any such accrued interest remaining undistributed from
prior Distribution Dates, plus, without duplication, (ii) as a distribution
in respect of principal, any portion of the principal balance of the
Class X Interest which is distributable as an Overcollateralization
Reduction Amount, minus (iii) any amounts paid as a Basis Risk
Payment.
Closing
Date: August 18, 2006.
Code:
The
Internal Revenue Code of 1986, including any successor or amendatory
provisions.
Collection
Accounts: As defined in Section 3.10(a).
Combined
Loan-to-Value Ratio or CLTV: As of the date of origination and as to any
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 Purchaser pursuant to its
mortgage conduit program and identified as a “Conduit Mortgage Loan” on the
Mortgage Loan Schedule.
Corporate
Trust Office: The designated office of the Trustee in the State of California
at
which at any particular time its corporate trust business with respect to this
Agreement is administered, which office at the date of the execution of this
Agreement is located at 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx
00000-0000, Attn: Trust Administration-GS065S, facsimile no. (000) 000-0000
and
which is the address to which notices to and correspondence with the Trustee
should be directed.
Corresponding
Certificate: With respect to each REMIC I Regular Interest listed below, as
follows:
REMIC
I Regular Interest
|
Class
|
REMIC
I Regular Interest I-LTA1
|
A-1
|
REMIC
I Regular Interest I-LTA2
|
A-2
|
REMIC
I Regular Interest I-LTM1
|
M-1
|
REMIC
I Regular Interest I-LTM2
|
M-2
|
REMIC
I Regular Interest I-LTM3
|
M-3
|
REMIC
I Regular Interest I-LTM4
|
M-4
|
REMIC
I Regular Interest I-LTM5
|
M-5
|
REMIC
I Regular Interest I-LTM6
|
M-6
|
REMIC
I Regular Interest I-LTM7
|
M-7
|
REMIC
I Regular Interest I-LTB1
|
B-1
|
REMIC
I Regular Interest I-LTB2
|
B-2
|
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 Custodian
or the Trustee,
as
applicable, or which at any time comes into the possession of the Custodian
or
the Trustee, as applicable.
Custodian:
U.S. Bank National Association, a national banking association, and its
successors in interest, as applicable. The Trustee will also serve as a
custodian for certain of the Mortgage Loans.
Custodian
Fee: As to each applicable Mortgage Loan and any Distribution Date, any amount
payable to the Custodian for such Mortgage Loan pursuant to the Custodian’s fee
agreement with the Trustee, as specified in an invoice from the Custodian to
the
Trustee. The Custodian Fee payable to the Custodian with respect to each
Distribution Date shall be payable out of the related Trustee Fee.
Cut-off
Date: August 1, 2006.
Cut-off
Date Pool Principal Balance: The aggregate Stated Principal Balance of all
Mortgage Loans as of the Cut-off Date.
Cut-off
Date Principal Balance: As to any Mortgage Loan, the Stated Principal Balance
thereof as of the close of business on the Cut-off Date (after giving effect
to
payments of principal due on that date, whether or not received).
Debt
Service Reduction: With respect to any Mortgage Loan, a reduction by a court
of
competent jurisdiction in a proceeding under the United States Bankruptcy Code
in the Scheduled Payment for such Mortgage Loan which became final and non
appealable, except for such a reduction resulting from a Deficient Valuation
or
any reduction that results in a permanent forgiveness of principal.
Deficient
Valuation: With respect to any Mortgage Loan, a valuation of the related
Mortgaged Property by a court of competent jurisdiction in an amount less than
the then outstanding principal balance of the Mortgage Loan, which valuation
results from a proceeding initiated under the United States Bankruptcy
Code.
Definitive
Certificates: Any Certificate evidenced by a Physical Certificate and any
Certificate issued in lieu of a Book-Entry Certificate pursuant to
Section 5.02(e).
Delay
Certificates: As specified in the Preliminary Statement.
Deleted
Mortgage Loan: As defined in Section 2.03(d).
Delinquent:
As used herein, a Mortgage Loan is considered to be: “30 to 59 days” or “30 or
more days” delinquent when a payment due on any scheduled due date remains
unpaid as of the close of business on the next following monthly scheduled
due
date; “60 to 89 days” or “60 or more days” delinquent when a payment due on any
scheduled due date remains unpaid as of the close of business on the second
following monthly scheduled due date; and so on. The determination as to whether
a Mortgage Loan falls into these categories is made as of the close of business
on the last business day of each month. For example, a Mortgage Loan with a
payment due on July 1 that remained unpaid as of the close of business on August
31 would then be considered to be 30 to 59 days delinquent.
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
Xxxxx’x, 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.
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-S5 Mortgage Pass-Through
Certificates, Series 2006-S5.” 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 September 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.
Eligible
Account: Either (i) an account maintained with a federal or state chartered
depository institution or trust company the short-term unsecured debt
obligations of which (or, in the case of a depository institution or trust
company that is a subsidiary of a holding company, the short-term unsecured
debt
obligations of such holding company) are rated “F-1” by Fitch and “P-1” by
Xxxxx’x if rated by such Rating Agency (and a comparable rating if another
Rating Agency is specified by the Depositor by written notice to the Servicer)
at the time any amounts are held on deposit therein, (ii) a trust account
or accounts maintained with a federal or state chartered depository institution
or trust company acting in its fiduciary capacity or (iii) any other
account acceptable to each Rating Agency. Eligible Accounts may bear interest,
and may include, if otherwise qualified under this definition, accounts
maintained with the Trustee.
ERISA:
The Employee Retirement Income Security Act of 1974, as amended.
ERISA-Restricted
Certificate: As specified in the Preliminary Statement.
Event
of
Default: As defined in Section 7.01.
Excess
Overcollateralized Amount: With respect to any Distribution Date, the excess,
if
any, of (a) the Overcollateralized Amount on such Distribution Date over
(b) the Specified Overcollateralized Amount for such Distribution
Date.
Excess
Reserve Fund Account: The separate Eligible Account created and maintained
by
the Trustee pursuant to Sections 3.27(a) in the name of the Trustee for the
benefit of the Regular Certificateholders and designated “Deutsche Bank National
Trust Company in trust for registered holders of GSAMP Trust 2006-S5, Mortgage
Pass-Through Certificates, Series 2006-S5.” 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
amounts received under the Yield Maintenance Agreement and available to cover
Realized Losses for that Distribution Date and (y) the related
Overcollateralization Deficiency for such Distribution Date.
Xxxxxx
Mae: The Federal National Mortgage Association and its successors in
interest.
Xxxxxx
Xxx Guides: The Xxxxxx Mae Seller’s Guide and the Xxxxxx Xxx Servicer’s Guide
and all amendments or additions thereto.
FDIC:
The
Federal Deposit Insurance Corporation, and its successors in
interest.
Final
Recovery Determination: With respect to any defaulted Mortgage Loan or any
REO
Property (other than a Mortgage Loan or REO Property purchased by the Fremont,
Impac Funding, NC Capital, Meritage, Residential Funding or the Purchaser 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 September
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-S5, or such other
address as Fitch may hereafter furnish to the Depositor, the Servicer, the
Custodian and the Trustee.
Forbearance:
As defined in Section 3.07(a).
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-1.
Fremont
Assignment Agreement: The Assignment, Assumption and Recognition Agreement,
dated as of August 18, 2006, among the Purchaser, the Depositor and
Fremont.
Fremont
Mortgage Loan: Each Mortgage Loan purchased by the Purchaser 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 Purchaser, 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 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 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.
Impac
Funding: Impac Funding Corporation, a California corporation, and its successors
in interest.
Impac
Funding Agreements: Collectively, the Impac Funding Purchase Agreement, without
the mortgage loan schedule exhibits, and the Impac Funding Assignment Agreement,
copies of which are attached hereto as Exhibit Q-2.
Impac
Funding Assignment Agreement: The Assignment, Assumption and Recognition
Agreement, dated as of August 18, 2006, among the Purchaser, the Depositor
and
Impac Funding.
Impac
Funding Mortgage Loan: Each Mortgage Loan purchased by the Purchaser pursuant
to
the Impac Funding Purchase Agreement and identified as a “Impac Funding Mortgage
Loan” on the Mortgage Loan Schedule.
Impac
Funding Purchase Agreement: The Flow Mortgage Loan Purchase and Warranties
Agreements, dated as of April 1, 2006, by and between Impac Funding and the
Purchaser, solely insofar as the Impac Funding Purchase Agreement relates to
the
Impac Funding Mortgage Loans.
Initial
Certification: The Initial Certification submitted by the Trustee or the
Custodian 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 any Distribution Date,
the
period commencing on the preceding Distribution Date (or, for the initial
Distribution Date, the Closing Date) and ending on the day preceding the current
Distribution Date, and with respect to the Delay Certificates and the REMIC
I
Regular Interests and any Distribution Date, the calendar month preceding the
month in which such Distribution Date occurs. For purposes of computing interest
accruals on each Class of Non-Delay Certificates (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
Remittance Amount: With respect to any Distribution, that portion of Available
Funds attributable to interest relating to the Mortgage Loans.
Investment
Account: As defined in Section 3.12(a).
Investor:
With respect to each MERS Designated Mortgage Loan, the Person named on the
MERS
System as the investor pursuant to the MERS Procedures Manual.
Late
Collections: With respect to any Mortgage Loan and any Due Period, all amounts
received after the 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.
Majority
Class X Certificateholder: The Holder or Holders of a majority of the
Percentage Interests in the Class X Certificates.
Marker
Rate: With respect to the Class X Certificates and any Distribution Date, a
per
annum rate equal to two (2) times the weighted average of the REMIC I Remittance
Rate for each of REMIC I Regular Interest I-LTA1, REMIC I Regular Interest
I-LTA2, REMIC I Regular I-LTM1, REMIC I Regular Interest I-LTM2, REMIC I Regular
Interest I-LTM3, REMIC I Regular Interest I-LTM4, REMIC I Regular Interest
I-LTM5, REMIC I Regular Interest I-LTM6, REMIC I Regular Interest I-LTM7, REMIC
I Regular Interest I-LTB1, REMIC I Regular Interest I-LTB2 and REMIC I Regular
Interest I-LTZZ, with the rate on each such REMIC I Regular Interest (other
than
REMIC I Regular Interest I-LTZZ) subject to a cap equal to the related
Pass-Through Rate for the Corresponding Certificate for the purpose of this
calculation for such Distribution Date and with the rate on REMIC I Regular
Interest I-LTZZ subject to a cap of zero for the purpose of this calculation;
provided however, each such cap for REMIC I Regular Interest I-LTA1, REMIC
I
Regular Interest I-LTM1, REMIC I Regular Interest I-LTM2, REMIC I Regular
Interest I-LTM3, REMIC I Regular Interest I-LTM4 and REMIC I Regular Interest
I-LTM7 shall be multiplied by a fraction the numerator of which is the actual
number of days in the related Interest Accrual Period and the denominator of
which is 30.
Maximum
I-LTZZ Uncertificated Interest Deferral Amount: With respect to any Distribution
Date, the excess of (i) accrued interest at the REMIC I Remittance Rate
applicable to REMIC I Regular Interest I-LTZZ for such Distribution Date on
a
balance equal to the Uncertificated Balance of REMIC I Regular Interest I-LTZZ
minus the REMIC I Overcollateralization Amount, in each case for such
Distribution Date, over (ii) Uncertificated Interest on REMIC I Regular Interest
I-LTA1, REMIC I Regular Interest I-LTA2, REMIC I Regular Interest I-LTM1, REMIC
I Regular Interest I-LTM2, REMIC I Regular Interest I-LTM3, REMIC I Regular
Interest I-LTM4, REMIC I Regular Interest I-LTM5, REMIC I Regular Interest
I-LTM6, REMIC I Regular Interest I-LTM7, REMIC I Regular Interest I-LTB1 and
REMIC I Regular Interest I-LTB2 with the rate on each such REMIC I Regular
Interest subject to a cap equal to the related Pass-Through Rate for the
corresponding Certificate for the purpose of this calculation for such
Distribution Date; provided however, each such cap for REMIC I Regular Interest
I-LTA1, REMIC I Regular Interest I-LTM1, REMIC I Regular Interest I-LTM2, REMIC
I Regular Interest I-LTM3, REMIC I Regular Interest I-LTM4 and REMIC I Regular
Interest I-LTM7 shall be multiplied by a fraction the numerator of which is
the
actual number of days in the related Interest Accrual Period and the denominator
of which is 30.
Meritage:
Meritage Mortgage Corporation, an Oregon corporation, and its successors in
interest.
Meritage
Agreements: Collectively, the Meritage Purchase Agreement, without the mortgage
loan schedule exhibits, and the Meritage Assignment Agreement, copies of which
are attached hereto as Exhibit Q-4.
Meritage
Assignment Agreement: The Assignment, Assumption and Recognition Agreement,
dated as of August 18, 2006, among the Purchaser, the Depositor and
Meritage.
Meritage
Mortgage Loan: Each Mortgage Loan purchased by the Purchaser pursuant to the
Meritage Purchase Agreement and identified as a “Meritage Mortgage Loan” on the
Mortgage Loan Schedule.
Meritage
Purchase Agreement: The Amended and Restated Flow Mortgage Loan Purchase and
Warranties Agreements, dated as of November 1, 2005, by and between Meritage
and
the Purchaser, solely insofar as the Meritage Purchase Agreement relates to
the
Meritage Mortgage Loans.
MERS:
As
defined in Section 2.01(b).
MERS
Designated Mortgage Loan: Mortgage Loans for which (a) the applicable Original
Loan Seller has designated or will designate MERS as, and has taken or will
take
such action as is necessary to cause MERS to be, the mortgagee of record, as
nominee for the applicable Original Loan Seller, in accordance with the MERS
Procedures Manual and (b) the applicable Original Loan Seller has designated
or
will designate the Trust as the Investor on the MERS® System.
MERS
Procedures Manual: The MERS Procedures Manual, as it may be amended,
supplemented or otherwise modified from time to time.
MERS®
System: MERS mortgage electronic registry system, as more particularly described
in the MERS Procedures Manual.
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, the Custodian and the
Trustee.
Mortgage:
The mortgage, deed of trust or other instrument identified on the Mortgage
Loan
Schedule as securing a Mortgage Note.
Mortgage
File: The items pertaining to a particular Mortgage Loan contained in either
the
Servicing File or Custodial File.
Mortgage
Interest Rate: The annual rate of interest borne on a Mortgage Note with respect
to each Mortgage Loan.
Mortgage
Loan: An individual Mortgage Loan which is the subject of this Agreement, each
Mortgage Loan originally sold and subject to this Agreement being identified
on
the Mortgage Loan Schedule, which Mortgage Loan includes, without limitation,
the Mortgage File, the Custodial File, the Servicing File, the Scheduled
Payments, Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds, REO Disposition proceeds, Prepayment Premiums and all
other rights, benefits, proceeds and obligations arising from or in connection
with such Mortgage Loan, excluding replaced or repurchased Mortgage
Loans.
Mortgage
Loan Documents: The mortgage loan documents pertaining to each Mortgage
Loan.
Mortgage
Loan Schedule: A schedule of Mortgage Loans annexed hereto as Schedule I,
such
schedule setting forth the following information with respect to each Mortgage
Loan as of the Cut-off Date: (1) the 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; (34) whether the
Mortgage Loan is a Fremont Mortgage Loan, Impac Funding Mortgage Loans, NC
Capital Mortgage Loan, Meritage Mortgage Loan, Residential Funding Mortgage
Loan
or Conduit Mortgage Loan and (35) a code indicating the custodian of such
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.
NC
Capital: NC Capital Corporation, a California corporation, and its successors
in
interest.
NC
Capital Agreements: Collectively, the NC Capital Purchase Agreement, without
the
mortgage loan schedule exhibits, and the NC Capital Assignment Agreement, copies
of which are attached hereto as Exhibit Q-3.
NC
Capital Assignment Agreement: The Assignment, Assumption and Recognition
Agreement, dated as of August 18, 2006, among the Purchaser, the Depositor
and
NC Capital.
NC
Capital Mortgage Loan: Each Mortgage Loan purchased by the Purchaser pursuant
to
the NC Capital Purchase Agreement and identified as a “NC Capital Mortgage Loan”
on the Mortgage Loan Schedule.
NC
Capital Purchase Agreement: The Second Amended and Restated Flow Mortgage Loan
Purchase and Warranties Agreements, dated as of May 1, 2006, by and between
NC
Capital and the Purchaser, solely insofar as the NC Capital Purchase Agreement
relates to the NC Capital Mortgage Loans.
Net
Monthly Excess Cash Flow: For any Distribution Date the amount remaining for
distribution pursuant to subsection 4.02(a)(iii) (before giving effect to
distributions pursuant to such subsection).
Net
Prepayment Interest Shortfall: For any Distribution Date, the amount by which
the sum of the Prepayment Interest Shortfalls exceeds the sum of the
Compensating Interest payments made with respect to such Distribution
Date.
NIM
Issuer: The entity established as the issuer of the NIM Securities, if
any.
NIM
Securities: Any debt securities secured or otherwise backed by some or all
of
the Class X and Class P Certificates that are rated by one or more Rating
Agencies.
NIM
Trustee: The trustee for the NIM Securities, if any.
90+
Day
Delinquent Mortgage Loan: Each Mortgage Loan with respect to which any portion
of a Scheduled Payment is, as of the last day of the prior Due Period, three
months or more past due (without giving effect to any grace period), each
Mortgage Loan in foreclosure, all REO Property and each Mortgage Loan for which
the Mortgagor has filed for bankruptcy.
Non-Delay
Certificates: As specified in the Preliminary Statement.
Nonrecoverable
P&I Advance: Any P&I Advance previously made or proposed to be made in
respect of a Mortgage Loan or REO Property that, in the good faith business
judgment of the Servicer, will not or, in the case of a proposed P&I
Advance, would not be ultimately recoverable from related late payments,
Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds on such
Mortgage Loan or REO Property as provided herein.
Nonrecoverable
Servicing Advance: Any Servicing Advances previously made or proposed to be
made
in respect of a Mortgage Loan or REO Property, which, in the good faith business
judgment of the Servicer, will not or, in the case of a proposed Servicing
Advance, would not, be ultimately recoverable from related Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds or otherwise.
Notice
of
Final Distribution: The notice to be provided pursuant to Section 9.02 to
the effect that final distribution on any of the Certificates shall be made
only
upon presentation and surrender thereof.
Notional
Amount: With respect to the Class X Certificates and any Distribution Date,
the
Uncertificated Balance of the REMIC I Regular Interests for such Distribution
Date. As of the Closing Date, the Notional Amount of the Class X Certificates
is
equal to $330,816,621.93.
Notional
Balance: With respect to the Class X Certificates for purposes solely of the
face thereof, the aggregate Stated Principal Balance of the Mortgage Loans.
With
respect to each of the Class X-1, Class P and Class R Certificates for purposes
solely of the face thereof, $100.
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 either Trust REMIC
as a REMIC or (b) compliance with the REMIC Provisions, must (unless
otherwise stated in such Opinion of Counsel) be an opinion of counsel who
(i) is in fact independent of the Servicer of the Mortgage Loans,
(ii) does not have any material direct or indirect financial interest in
the Servicer 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 Fremont Mortgage Loan, Fremont, with respect
to each Impac Funding Mortgage Loan, Impac Funding, with respect to each NC
Capital Mortgage Loan, NC Capital, with respect to each Meritage Mortgage Loan,
Meritage, with respect to each Residential Funding Mortgage Loan, Residential
Funding and with respect to each Conduit Mortgage Loan, the Person who sold
such
Conduit Mortgage Loan to the Purchaser.
Original
Sale Date: With regard to each Fremont Mortgage Loan, April 11, 2006, with
regard to each Impac Funding Mortgage Loan, April 25, 2006, with regard to
each
NC Capital Mortgage Loan, May 26, 2006, with regard to each Meritage Mortgage
Loan, March 7, 2006 and March 30, 2006, as applicable, with regard to each
Residential Funding Mortgage Loan May 24, 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
Certificates as of such Distribution Date (after giving effect to the payment
of
the Principal Remittance Amount on such Certificates on such Distribution
Date).
Overcollateralization
Deficiency: With respect to any Distribution Date, the excess, if any, of
(a) the Specified Overcollateralized Amount applicable to such Distribution
Date over (b) the Overcollateralized Amount applicable to such Distribution
Date.
Overcollateralization
Floor: With respect to any Distribution Date, 0.50% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date. Notwithstanding
the foregoing, on and after any Distribution Date following the reduction of
the
aggregate Class Certificate Balance of the Class A Certificates, Class M
Certificates and Class B Certificates to zero, the Overcollateralization Floor
shall be zero.
Overcollateralization
Reduction Amount: With respect to any Distribution Date, an amount equal to
the
lesser of (a) the Excess Overcollateralized Amount and (b) the Net
Monthly Excess Cash Flow.
Ownership
Interest: As to any Residual Certificate, any ownership interest in such
Certificate including any interest in such Certificate as the Holder thereof
and
any other interest therein, whether direct or indirect, legal or
beneficial.
P&I
Advance: As to any Mortgage Loan or REO Property, any advance made by the
Servicer in respect of any 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 LIBOR Certificates, the following
percentages: Class A-1, 0.090%; Class M-1, 0.350%; Class M-2, 0.380%; Class
M-3,
0.600%; Class M-4, 0.670% and Class M-7, 2.500%. On the first Distribution
Date
after the Optional Termination Date, the Pass-Through Margins shall increase
to:
Class A-1, 0.180%; Class M-1, 0.525%; Class M-2, 0.570%; Class M-3, 0.900%;
Class M-4, 1.005% and Class M-7, 3.750%.
Pass-Through
Rate: With respect to the Class A-1, Class M-1, Class M-2, Class M-3, Class
M-4
and Class M-7 Certificates, a rate per annum equal to the lesser of (i) LIBOR
plus the related Pass-Through Margin and (ii) the WAC Cap.
With
respect to the Class A-2 Certificates, a rate per annum equal to (a) on or
prior
to the first possible Optional Termination Date, 5.658% or (b) after the first
possible Optional Termination Date, 6.158%.
With
respect to the Class M-5 Certificates, a rate per annum equal to the lesser
of
(i) (a) on or prior to the first possible Optional Termination Date 7.488%
or
(b) after the first possible Optional Termination Date, 7.988% and (ii) the
WAC
Cap.
With
respect to the Class M-6 Certificates, a rate per annum equal to the lesser
of
(i) (a) on or prior to the first possible Optional Termination Date 7.500%
or
(b) after the first possible Optional Termination Date, 8.000% and (ii) the
WAC
Cap.
With
respect to the Class B-1 Certificates, a rate per annum equal to the lesser
of
(i) (a) on or prior to the first possible Optional Termination Date 7.000%
or
(b) after the first possible Optional Termination Date, 7.500% and (ii) the
WAC
Cap.
With
respect to the Class B-2 Certificates, a rate per annum equal to the lesser
of
(i) (a) on or prior to the first possible Optional Termination Date 7.000%
or
(b) after the first possible Optional Termination Date, 7.500% and (ii) the
WAC
Cap.
With
respect to the Class X Certificates and any Distribution Date, a rate per annum
equal to the percentage equivalent of a fraction, the numerator of which is
the
sum of the amounts calculated pursuant to clauses (a) through (m) below, and
the
denominator of which is the aggregate Uncertificated Balances of REMIC I Regular
Interest I-LTAA, REMIC I Regular Interest I-LTA1, REMIC I Regular Interest
I-LTA2, REMIC I Regular Interest I-LTM1, REMIC I Regular Interest I-LTM2, REMIC
I Regular Interest I-LTM3, REMIC I Regular Interest I-LTM4, REMIC I Regular
Interest I-LTM5, REMIC I Regular Interest I-LTM6, REMIC I Regular Interest
I-LTM7, REMIC I Regular Interest I-LTB1, REMIC I Regular Interest I-LTB2 and
REMIC I Regular Interest I-LTZZ. For purposes of calculating the Pass-Through
Rate for the Class X Certificates, the numerator is equal to the sum of the
following components:
(a) the
REMIC
I Remittance Rate for REMIC I Regular Interest I-LTAA minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC I Regular
Interest I-LTAA;
(b) the
REMIC
I Remittance Rate for REMIC I Regular Interest I-LTA1 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC I Regular
Interest I-LTA1;
(c) the
REMIC
I Remittance Rate for REMIC I Regular Interest I-LTA2 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC I Regular
Interest I-LTA2;
(d) the
REMIC
I Remittance Rate for REMIC I Regular Interest I-LTM1 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC I Regular
Interest I-LTM1;
(e) the
REMIC
I Remittance Rate for REMIC I Regular Interest I-LTM2 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC I Regular
Interest I-LTM2;
(f) the
REMIC
I Remittance Rate for REMIC I Regular Interest I-LTM3 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC I Regular
Interest I-LTM3;
(g) the
REMIC
I Remittance Rate for REMIC I Regular Interest I-LTM4 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC I Regular
Interest I-LTM4;
(h) the
REMIC
I Remittance Rate for REMIC I Regular Interest I-LTM5 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC I Regular
Interest I-LTM5;
(i) the
REMIC
I Remittance Rate for REMIC I Regular Interest I-LTM6 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC I Regular
Interest I-LTM6;
(j) the
REMIC
I Remittance Rate for REMIC I Regular Interest I-LTM7 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC I Regular
Interest I-LTM7;
(k) the
REMIC
I Remittance Rate for REMIC I Regular Interest I-LTB1 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC I Regular
Interest I-LTB1;
(l) the
REMIC
I Remittance Rate for REMIC I Regular Interest I-LTB2 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC I Regular
Interest I-LTB2; and
(m) the
REMIC
I Remittance Rate for REMIC I Regular Interest I-LTZZ minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC I Regular
Interest I-LTZZ.
Percentage
Interest: As to any Certificate, the percentage interest evidenced thereby
in
distributions required to be made on the related Class, such percentage interest
being set forth on the face thereof or equal to the percentage obtained by
dividing the Denomination of such Certificate by the aggregate of the
Denominations of all Certificates of the same Class.
Permitted
Investments: Any one or more of the following obligations or securities acquired
at a purchase price of not greater than par, regardless of whether issued by
the
Servicer, the Trustee or any of their respective Affiliates:
(i) direct
obligations of, or obligations fully guaranteed as to timely payment of
principal and interest by, the United States or any agency or instrumentality
thereof, provided such obligations are backed by the full faith and credit
of
the United States;
(ii) demand
and time deposits in, certificates of deposit of, or bankers’ acceptances (which
shall each have an original maturity of not more than 90 days and, in the case
of bankers’ acceptances, shall in no event have an original maturity of more
than 365 days or a remaining maturity of more than 30 days) denominated in
United States dollars and issued by any Depository Institution and rated P-1
by
Moody’s, F-1 by Fitch and A-1+ by 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 not a U.S. Person or a U.S. Person with respect to whom income
from a Residual Certificate is attributable to a foreign permanent establishment
or fixed base (within the meaning of an applicable income tax treaty) of such
Person or any other U.S. Person, (vi) an “electing large partnership”
within the meaning of Section 775 of the Code and (vii) any other
Person so designated by the Depositor based upon an Opinion of Counsel that
the
Transfer of an Ownership Interest in a Residual Certificate to such Person
may
cause either Trust REMIC to fail to qualify as a REMIC at any time that the
Certificates are outstanding. The terms “United States,” “State” and
“international organization” shall have the meanings set forth in
Section 7701 of the Code or successor provisions. A corporation will not be
treated as an instrumentality of the United States or of any State or political
subdivision thereof for these purposes if all of its activities are subject
to
tax and, with the exception of the 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.
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 last day of the related
Prepayment Period.
Prepayment
Period: With respect to any Distribution Date and each Principal Prepayment
in
Full, the period beginning on the 16th
day of
the month preceding the month in which such Distribution Date occurs and ending
on 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 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 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 August 17, 2006, relating to the
Offered Certificates.
PTCE
95-60: As defined in Section 5.02(b).
PUD:
A
planned unit development.
Purchase
Agreements: The Fremont Purchase Agreement, the Impac Funding Purchase
Agreement, the NC Capital Purchase Agreement, the Meritage Purchage Agreement,
the Residential Funding Purchase Agreement or, with respect to any Conduit
Mortgage Loans, the purchase agreement by and between the related Original
Loan
Seller and the Purchaser, as applicable.
Purchaser:
Xxxxxxx Xxxxx Mortgage Company, a New York limited partnership, and its
successors in interest, as purchaser of the Mortgage Loans under the Purchase
Agreements.
Rating
Agency: Each of the Rating Agencies specified in the Preliminary Statement.
If
such organization or a successor is no longer in existence, “Rating Agency”
shall be such nationally recognized statistical rating organization, or other
comparable Person, as is designated by the Depositor, notice of which
designation shall be given to the Trustee. References herein to a given rating
or rating category of a Rating Agency shall mean such rating category without
giving effect to any modifiers. For purposes of Section 10.05(b), the
addresses for notices to each Rating Agency shall be the address specified
therefor in the definition corresponding to the name of such Rating Agency,
or
such other address as either such Rating Agency may hereafter furnish to the
Depositor, 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.
§§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 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
I:
As specified in the Preliminary Statement.
REMIC
I
Interest Loss Allocation Amount: With respect to any Distribution Date, an
amount equal to (a) the product of (i) the aggregate Stated Principal Balance
of
the Mortgage Loans and REO Properties then outstanding and (ii) the REMIC I
Remittance Rate for REMIC I Regular Interest I-LTAA minus the Marker Rate,
divided by (b) 12.
REMIC
I
Overcollateralization Amount: With respect to any date of determination, (i)
1.00% of the aggregate Uncertificated Balances of the REMIC I Regular Interests
minus (ii) the aggregate of the Uncertificated Balances of REMIC I Regular
Interest I-LTA1, REMIC I Regular Interest I-LTA2, REMIC I Regular Interest
I-LTM1, REMIC I Regular Interest I-LTM2, REMIC I Regular Interest I-LTM3, REMIC
I Regular Interest I-LTM4, REMIC I Regular Interest I-LTM5, REMIC I Regular
Interest I-LTM6, REMIC I Regular Interest I-LTM7, REMIC I Regular Interest
I-LTB1 and REMIC I Regular Interest I-LTB2, in each case as of such date of
determination.
REMIC
I
Principal Loss Allocation Amount: With respect to any Distribution Date, an
amount equal to (a) the product of (i) 1.00% of the aggregate Stated Principal
Balance of the Mortgage Loans and REO Properties then outstanding and (ii)
1
minus a fraction, the numerator of which is two times the aggregate of the
Uncertificated Balances of REMIC I Regular Interest I-LTA1, REMIC I Regular
Interest I-LTA2, REMIC I Regular Interest I-LTM1, REMIC I Regular Interest
I-LTM2, REMIC I Regular Interest I-LTM3, REMIC I Regular Interest I-LTM4, REMIC
I Regular Interest I-LTM5, REMIC I Regular Interest I-LTM6, REMIC I Regular
Interest I-LTM7, REMIC I Regular Interest I-LTB1 and REMIC I Regular Interest
I-LTB2 and the denominator of which is the aggregate of the Uncertificated
Balances of REMIC I Regular Interest I-LTA, REMIC I Regular Interest I-LTA1,
REMIC I Regular Interest I-LTA2, REMIC I Regular Interest I-LTM1, REMIC I
Regular Interest I-LTM2, REMIC I Regular Interest I-LTM3, REMIC I Regular
Interest I-LTM4, REMIC I Regular Interest I-LTM5, REMIC I Regular Interest
I-LTM6, REMIC I Regular Interest I-LTM7, REMIC I Regular Interest I-LTB1, REMIC
I Regular Interest I-LTB2 and REMIC I Regular Interest I-LTZZ.
REMIC
I
Regular Interest: Any of the separate non-certificated beneficial ownership
interests in REMIC I issued hereunder and designated as a “regular interest” in
REMIC I. Each REMIC I Regular Interest shall accrue interest at the related
REMIC I Remittance Rate in effect from time to time, and shall be entitled
to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Balance as set forth in
the
Preliminary Statement hereto. The designations for the respective REMIC I
Regular Interests are set forth in the Preliminary Statement
hereto.
REMIC
I
Regular Interest I-LTAA: One of the separate non-certificated beneficial
ownership interests in REMIC I issued hereunder and designated as a Regular
Interest in REMIC I. REMIC I Regular Interest I-LTAA shall accrue interest
at
the related REMIC I Remittance Rate in effect from time to time, and shall
be
entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Balance
as
set forth in the Preliminary Statement hereto.
REMIC
I
Regular Interest I-LTA1: One of the separate non-certificated beneficial
ownership interests in REMIC I issued hereunder and designated as a Regular
Interest in REMIC I. REMIC I Regular Interest I-LTA1 shall accrue interest
at
the related REMIC I Remittance Rate in effect from time to time, and shall
be
entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Balance
as
set forth in the Preliminary Statement hereto.
REMIC
I
Regular Interest I-LTA2: One of the separate non-certificated beneficial
ownership interests in REMIC I issued hereunder and designated as a Regular
Interest in REMIC I. REMIC I Regular Interest I-LTA2 shall accrue interest
at
the related REMIC I Remittance Rate in effect from time to time, and shall
be
entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Balance
as
set forth in the Preliminary Statement hereto.
REMIC
I
Regular Interest I-LTM1: One of the separate non-certificated beneficial
ownership interests in REMIC I issued hereunder and designated as a Regular
Interest in REMIC I. REMIC I Regular Interest I-LTM1 shall accrue interest
at
the related REMIC I Remittance Rate in effect from time to time, and shall
be
entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Balance
as
set forth in the Preliminary Statement hereto.
REMIC
I
Regular Interest I-LTM2: One of the separate non-certificated beneficial
ownership interests in REMIC I issued hereunder and designated as a Regular
Interest in REMIC I. REMIC I Regular Interest I-LTM2 shall accrue interest
at
the related REMIC I Remittance Rate in effect from time to time, and shall
be
entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Balance
as
set forth in the Preliminary Statement hereto.
REMIC
I
Regular Interest I-LTM3: One of the separate non-certificated beneficial
ownership interests in REMIC I issued hereunder and designated as a Regular
Interest in REMIC I. REMIC I Regular Interest I-LTM3 shall accrue interest
at
the related REMIC I Remittance Rate in effect from time to time, and shall
be
entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Balance
as
set forth in the Preliminary Statement hereto.
REMIC
I
Regular Interest I-LTM4: One of the separate non-certificated beneficial
ownership interests in REMIC I issued hereunder and designated as a Regular
Interest in REMIC I. REMIC I Regular Interest I-LTM4 shall accrue interest
at
the related REMIC I Remittance Rate in effect from time to time, and shall
be
entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Balance
as
set forth in the Preliminary Statement hereto.
REMIC
I
Regular Interest I-LTM5: One of the separate non-certificated beneficial
ownership interests in REMIC I issued hereunder and designated as a Regular
Interest in REMIC I. REMIC I Regular Interest I-LTM5 shall accrue interest
at
the related REMIC I Remittance Rate in effect from time to time, and shall
be
entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Balance
as
set forth in the Preliminary Statement hereto.
REMIC
I
Regular Interest I-LTM6: One of the separate non-certificated beneficial
ownership interests in REMIC I issued hereunder and designated as a Regular
Interest in REMIC I. REMIC I Regular Interest I-LTM6 shall accrue interest
at
the related REMIC I Remittance Rate in effect from time to time, and shall
be
entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Balance
as
set forth in the Preliminary Statement hereto.
REMIC
I
Regular Interest I-LTM7: One of the separate non-certificated beneficial
ownership interests in REMIC I issued hereunder and designated as a Regular
Interest in REMIC I. REMIC I Regular Interest I-LTM7 shall accrue interest
at
the related REMIC I Remittance Rate in effect from time to time, and shall
be
entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Balance
as
set forth in the Preliminary Statement hereto.
REMIC
I
Regular Interest I-LTB1: One of the separate non-certificated beneficial
ownership interests in REMIC I issued hereunder and designated as a Regular
Interest in REMIC I. REMIC I Regular Interest I-LTB1 shall accrue interest
at
the related REMIC I Remittance Rate in effect from time to time, and shall
be
entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Balance
as
set forth in the Preliminary Statement hereto.
REMIC
I
Regular Interest I-LTB2: One of the separate non-certificated beneficial
ownership interests in REMIC I issued hereunder and designated as a Regular
Interest in REMIC I. REMIC I Regular Interest I-LTB3 shall accrue interest
at
the related REMIC I Remittance Rate in effect from time to time, and shall
be
entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Balance
as
set forth in the Preliminary Statement hereto.
REMIC
I
Regular Interest I-LTZZ: One of the separate non-certificated beneficial
ownership interests in REMIC I issued hereunder and designated as a Regular
Interest in REMIC I. REMIC I Regular Interest I-LTZZ shall accrue interest
at
the related REMIC I Remittance Rate in effect from time to time, and shall
be
entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Balance
as
set forth in the Preliminary Statement hereto.
REMIC
I
Remittance Rate: With respect to each REMIC I Regular Interest, a per annum
rate
equal to (i) the weighted average of the Adjusted Net Mortgage Interest Rates
then in effect on the beginning of the related Due Period on the Mortgage
Loans.
REMIC
I
Required Overcollateralization Amount: 1% of the Specified Overcollateralized
Amount.
REMIC
II:
The segregated pool of assets consisting of all of the REMIC I Regular Interests
conveyed in trust to the Trustee, for the benefit of the REMIC II
Certificateholders pursuant to Section 2.07, and all amounts deposited therein,
with respect to which a separate REMIC election is to be made.
REMIC
II
Certificate: Any Regular Certificate.
REMIC
II
Certificateholder: The Holder of any REMIC II Certificate.
REMIC
Opinion: As defined in Section 9.03.
REMIC
Provisions: Provisions of the federal income tax law relating to real estate
mortgage investment conduits, which appear at Sections 860A through 860G of
Subchapter M of Chapter 1 of the Code, and related provisions, and regulations
promulgated thereunder, as the foregoing may be in effect from time to time
as
well as provisions of applicable state laws.
Remittance
Date: With respect to any Distribution Date, no later than 1:00 PM, Central
Time
on the Business Day immediately preceding such Distribution Date.
REO
Disposition: The final sale by the applicable Servicer of any REO
Property.
REO
Imputed Interest: As to any REO Property, for any period, an amount equivalent
to interest (at the Mortgage Interest Rate net of the Servicing Fee Rate that
would have been applicable to the related Mortgage Loan had it been outstanding)
on the unpaid principal balance of the Mortgage Loan as of the date of
acquisition thereof (as such balance is reduced pursuant to Section 3.15 by
any income from the REO Property treated as a recovery of
principal).
REO
Property: A Mortgaged Property acquired by the Trust Fund through foreclosure
or
deed-in-lieu of foreclosure in connection with a defaulted Mortgage
Loan.
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 August 18, 2006, by and between the Depositor and the Purchaser, a copy
of
which is attached hereto as Exhibit U.
Repurchase
Price: With respect to any Mortgage Loan repurchased by the Purchaser, an amount
equal to the sum of (i) the unpaid principal balance of such Mortgage Loan
as of the date of repurchase, (ii) interest on such unpaid principal
balance of such Mortgage Loan at the Mortgage Interest Rate from the last date
through which interest has been paid and distributed to the Trustee to the
date
of repurchase, (iii) all unreimbursed Servicing Advances, (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 Purchaser’s
repurchase obligations, to the extent not included in clause (iii).
With
respect to any Mortgage Loan repurchased by Fremont, Impac Funding, NC Capital,
Meritage and Residential Funding, 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 Custodian
or the Trustee, substantially in the form of Exhibit J.
Residential
Funding: Residential Funding corporation, a Delaware corporation, and its
successors in interest.
Residential
Funding Agreements: Collectively, the Residential Funding Purchase Agreement,
without the mortgage loan schedule exhibits, and the Residential Funding
Assignment Agreement, copies of which are attached hereto as Exhibit
Q-5.
Residential
Funding Assignment Agreement: The Assignment, Assumption and Recognition
Agreement, dated as of August 18, 2006, among the Purchaser, the Depositor
and
Residential Funding.
Residential
Funding Mortgage Loan: Each Mortgage Loan purchased by the Purchaser pursuant
to
the Residential Funding Purchase Agreement and identified as a “Residential
Funding Mortgage Loan” on the Mortgage Loan Schedule.
Residential
Funding Purchase Agreement: The Flow Mortgage Loan Purchase and Warranties
Agreements, dated as of May 1, 2006, by and between Residential Funding and
the
Purchaser, solely insofar as the Residential Funding Purchase Agreement relates
to the Residential Funding Mortgage Loans.
Residual
Certificates: As specified in the Preliminary Statement.
Residual
Interest: The sole class of “residual interests” in a REMIC within the meaning
of Section 860G(a)(2) of the Code.
Responsible
Officer: When used with respect to the Trustee, any vice president, any
assistant vice president, any assistant secretary, any assistant treasurer,
any
associate or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers who at such
time shall be officers to whom, with respect to a particular matter, such matter
is referred because of such officer’s knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration of this Agreement.
Rule 144A
Letter: As defined in Section 5.02(b).
Scheduled
Payment: The scheduled monthly payment on a Mortgage Loan due on any Due Date
allocable to principal and/or interest on such Mortgage Loan which, unless
otherwise specified herein, shall give effect to any related Debt Service
Reduction and any Deficient Valuation that affects the amount of the monthly
payment due on such Mortgage Loan.
Securities
Act: The Securities Act of 1933, as amended.
Senior
Enhancement Percentage: With respect to any Distribution Date, the percentage
obtained by dividing (x) the sum of (i) the aggregate Class
Certificate Balance of the Subordinated Certificates and (ii) the
Overcollateralized Amount (in each case after taking into account the
distributions of the Principal Distribution Amount for such Distribution Date)
by (y) the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date.
Senior
Specified Enhancement Percentage: As of any date of determination,
68.30%.
Servicer:
Ocwen.
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 15.00% of the Senior Enhancement Percentage as of the last
day
of the prior Due Period.
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
|
September
2008 - August 2009
|
3.05%
for the first month, plus an additional 1/12th
of
3.10% for each month thereafter
|
September
2009 - August 2010
|
6.15%
for the first month, plus an additional 1/12th
of
3.15% for each month thereafter
|
September
2010 - August 2011
|
9.30%
for the first month, plus an additional 1/12th
of
2.45% for each month thereafter
|
September
2011 - August 2012
|
11.75%
for the first month, plus an additional 1/12th
of
0.75% for each month thereafter
|
September
2012 and thereafter
|
12.50%
|
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 calendar month preceding the month in which such
Distribution Date occurs. Such fee shall be payable monthly, and shall be pro
rated for any portion of a month during which the Mortgage Loan is serviced
by
the Servicer under this Agreement. The Servicing Fee is payable solely from
the
interest portion (including recoveries with respect to interest from Liquidation
Proceeds, Insurance Proceeds, 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.
Similar
Law: As defined in Section 5.02(b).
60+
Day
Delinquent Mortgage Loan: Each Mortgage Loan with respect to which any portion
of a Scheduled Payment is, as of the last day of the prior Due Period, two
months or more past due (without giving effect to any grace period), each
Mortgage Loan in foreclosure, all REO Property and each Mortgage Loan for which
the Mortgagor has filed for bankruptcy.
Specified
Overcollateralized Amount: Prior to the Stepdown Date, an amount equal to 6.15%
of the Cut-off Date Pool Principal Balance. On and after the Stepdown Date,
an
amount equal to 12.30% of the aggregate Stated Principal Balance of the Mortgage
Loans for such Distribution Date, subject, until the Class Certificate Balance
of each Class of Offered Certificates and the Class B-1 Certificates and Class
B-2 Certificates has been reduced to zero, to a minimum amount equal to the
Overcollateralization Floor; provided, however, that if, on any Distribution
Date, a Trigger Event has occurred, the Specified Overcollateralized Amount
shall not be reduced to the applicable percentage of the then current aggregate
Stated Principal Balance of the Mortgage Loans until the Distribution Date
on
which a Trigger Event is no longer occurring.
Standard
& Poor’s: Standard & Poor’s, 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-S5, or such other
address as Standard & Poor’s may hereafter furnish to the Depositor, the
Servicer, the Custodian and the Trustee.
Standard
& Poor’s Glossary: Version 5.6 of the Standard & Poor’s LEVELS®
Glossary.
Start-up
Day: As defined in Section 2.06.
Stated
Principal Balance: As to each Mortgage Loan and as of any date of determination,
(i) the principal balance of the Mortgage Loan at the Cut-off Date after
giving effect to payments of principal due on or before such date, minus
(ii) all amounts previously remitted to the Trustee with respect to the
related Mortgage Loan representing payments or recoveries of principal including
advances in respect of scheduled payments of principal. For purposes of any
Distribution Date, the Stated Principal Balance of any Mortgage Loan will give
effect to any scheduled payments of principal received by the Servicer on or
prior to the related Determination Date or advanced by the Servicer for the
related Remittance Date and any unscheduled principal payments and other
unscheduled principal collections received during the related Prepayment Period,
and the Stated Principal Balance of any Mortgage Loan that has prepaid in full
or has become a Liquidated Mortgage Loan during the related Prepayment Period
shall be zero.
Stepdown
Date: The earlier to occur of (a) the date on which the aggregate Class
Certificate Balance of the Class A Certificates has been reduced to zero,
and (b) the later to occur of (i) the Distribution Date in September
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 Fremont, Impac Funding, NC Capital
or the Purchaser 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(g).
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) over
(ii) the sum of amounts payable to the Offered Certificates and the Class
B-1 Certificates and Class B-2 Certificates on such Distribution Date pursuant
to Section 4.02(a)(i).
Transfer:
Any direct or indirect transfer or sale of any Ownership Interest in a Residual
Certificate.
Transfer
Affidavit: As defined in Section 5.02(c).
Transferor
Certificate: As defined in Section 5.02(b).
Trigger
Event: With respect to any Distribution Date, a Trigger Event exists if
(i) the quotient (expressed as a percentage) of (1) the rolling three
month average of the aggregate unpaid principal balance of 60+ Day
Delinquent Mortgage Loans, divided by (2) the aggregate unpaid principal
balance of the Mortgage Loans as of the last day of the related Due Period,
equals or exceeds 11.71% 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
|
September
2008 - August 2009
|
2.65%
for the first month, plus an additional 1/12th of 3.30% for each
month
thereafter
|
September
2009 - August 2010
|
5.95%
for the first month, plus an additional 1/12th of 3.30% for each
month
thereafter
|
September
2010 - August 2011
|
9.25%
for the first month, plus an additional 1/12th of 2.00% for each
month
thereafter
|
September
2011 - August 2012
|
11.25%
for the first month, plus an additional 1/12th of 0.75% for each
month
thereafter
|
September
2012 and thereafter
|
12.00%
|
Trust:
The express trust created hereunder in Section 2.01(c).
Trust
Fund: The corpus of the trust created hereunder consisting of (i) the
Mortgage Loans and all interest and principal 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 Fremont
Agreements, the Impac Funding Agreements, the NC Capital Agreements, the
Meritage Agreements, the Residential Funding Agreements and the Representations
and Warranties Agreement and (vi) all proceeds of the conversion, voluntary
or involuntary, of any of the foregoing.
Trust
REMIC: Either REMIC I or REMIC II, as applicable.
Trustee:
Deutsche Bank National Trust Company, and its successors in interest and, if
a
successor trustee is appointed hereunder, such successor.
Trustee
Fee: As to each Mortgage Loan and any Distribution Date, an amount equal to
one
month’s interest at the related Trustee Fee Rate on the outstanding principal
balance of such Mortgage Loan as of the last day of the related Due Period
for
the preceding Distribution Date (or as of the Closing Date in the case of the
first Distribution Date).
Trustee
Fee Rate: With respect to each Mortgage Loan, 0.008% per annum.
Trustee
Float Period: With respect to any Distribution Date and the related amounts
in
the Distribution Account, the period commencing on the Business Day immediately
preceding such Distribution Date and ending on such Distribution
Date.
U.S.
Person: (i) A citizen or resident of the United States; (ii) a
corporation (or entity treated as a corporation for tax purposes) created or
organized in the United States or under the laws of the United States or of
any
State thereof, including, for this purpose, the District of Columbia;
(iii) a partnership (or entity treated as a partnership for tax purposes)
organized in the United States or under the laws of the United States or of
any
state thereof, including, for this purpose, the District of Columbia (unless
provided otherwise by future Treasury regulations); (iv) an estate whose
income is includible in gross income for United States income tax purposes
regardless of its source; or (v) a trust, if a court within the United
States is able to exercise primary supervision over the administration of the
trust and one or more U.S. Persons have authority to control all substantial
decisions of the trust. Notwithstanding the last clause of the preceding
sentence, to the extent provided in Treasury regulations, certain trusts in
existence on August 20, 1996, and treated as U.S. Persons prior to such
date, may elect to continue to be U.S. Persons.
Uncertificated
Balance: The amount of the REMIC I Regular Interests outstanding as of any
date
of determination. As of the Closing Date, the Uncertificated Balance of each
REMIC I Regular Interest shall equal the amount set forth in the Preliminary
Statement hereto as its initial uncertificated balance. On each Distribution
Date, the Uncertificated Balance of the REMIC I Regular Interest shall be
reduced by all distributions of principal made on such REMIC I Regular Interest
on such Distribution Date pursuant to Section 4.06 and, if and to the extent
necessary and appropriate, shall be further reduced on such Distribution Date
by
Realized Losses as provided in Section 4.05 and the Uncertificated Balance
of
REMIC I Regular Interest I-LTZZ shall be increased by interest deferrals as
provided in Section 4.06. The Uncertificated Balance of each REMIC I Regular
Interest shall never be less than zero.
Uncertificated
Interest: With respect to any REMIC I Regular Interest for any Distribution
Date, one month’s interest at the REMIC I Remittance Rate applicable to such
REMIC I Regular Interest for such Distribution Date, accrued on the
Uncertificated Balance thereof immediately prior to such Distribution Date.
Uncertificated Interest in respect of the REMIC I Regular Interests shall accrue
on the basis of a 360-day year consisting of twelve 30-day months.
Uncertificated Interest with respect to each Distribution Date, as to any REMIC
I Regular Interest, shall be reduced by an amount equal to the sum of (a) the
aggregate Prepayment Interest Shortfall, if any, for such Distribution Date
to
the extent not covered by payments pursuant to Section 3.25 of this Agreement
and (b) the aggregate amount of any Relief Act Interest Shortfall, if any
allocated, in each case, to such REMIC I Regular Interest pursuant to Section
4.02. In addition, Uncertificated Interest with respect to each Distribution
Date, as to any Uncertificated REMIC Regular Interest, shall be reduced by
Realized Losses, if any, allocated to such Uncertificated REMIC Regular Interest
pursuant to Section 4.05.
Underwriters’
Exemption: Any exemption listed in footnote 1 of, and amended by,
Prohibited Transaction Exemption 2002-41, 67 Fed. Reg. 54487 (2002), or any
successor exemption.
Underwriting
Guidelines: The underwriting guidelines attached to the applicable Purchase
Agreement.
Unpaid
Interest Amounts: As of any Distribution Date and any Class of Certificates,
the
sum of (a) the portion of the Accrued Certificate Interest Distribution
Amount from prior Distribution Dates remaining unpaid immediately prior to
the
current Distribution Date and (b) interest on such unpaid amount in clause
(a) at the applicable Pass-Through Rate (to the extent permitted by applicable
law).
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:
With respect to the Mortgage Loans as of any Distribution Date, a per annum
rate
equal to (i) the weighted average of the Adjusted Net Mortgage Interest
Rates then in effect on the beginning of the related Due Period on the Mortgage
Loans and (ii) with respect to each Class of LIBOR Certificates, multiplied
by a fraction, the numerator of which is 30 and the denominator of which is
the
actual number of days in the Interest Accrual Period related to such
Distribution Date (which, for purposes of the WAC Cap calculation, shall be
31
for the September 2006 Distribution Date). For federal income tax purposes,
the
equivalent of the foregoing shall be expressed as the weighted average of the
REMIC I Remittance Rates on each REMIC I Regular Interest, weighted on the
basis
of the Uncertificated Balance of each such REMIC I Regular
Interest.
Yield
Maintenance Agreement: The yield maintenance agreement dated August 18, 2006,
between the Purchaser 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) 6.10%, (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, 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;
Section
2.01 Conveyance
of Mortgage Loans. (a)
The
Depositor, concurrently with the execution and delivery hereof, hereby sells,
transfers, assigns, sets over and otherwise conveys to the Trustee for the
benefit of the Certificateholders, without recourse, all the right, title and
interest of the Depositor in and to the Trust Fund, and the Trustee, on behalf
of the Trust, hereby accepts the Trust Fund.
(b) In
connection with the transfer and assignment of each Mortgage Loan, the Depositor
has delivered or caused to be delivered to the Custodian or the Trustee, as
applicable, 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 0.06% 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 Fremont Mortgage Loan, NC Capital Mortgage Loan, Impac Funding
Mortgage Loan or Meritage Mortgage Loan, the original of any guarantee executed
in connection with the Mortgage Note;
(iii) with
respect to the Fremont Mortgage Loans, Impac Funding Mortgage Loans, NC Capital
Mortgage Loans, Meritage Mortgage Loans, Residential Funding 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, Fremont, Impac Funding, NC Capital, Meritage
or GSMC with respect to the Conduit Mortgage Loans, 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, Fremont, Impac Funding, NC Capital, Meritage or
GSMC
with respect to the Conduit Mortgage Loans, as applicable, shall deliver or
cause to be delivered to the Custodian or the Trustee, as applicable, 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 Fremont, Impac
Funding, NC Capital, Meritage, Residential Funding or GSMC 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 Fremont, Impac Funding,
NC
Captial, Meritage or GSMC, 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 or the Trustee, as applicable, upon receipt
thereof by Fremont, Impac Funding, NC Capital, Meritage or GSMC with respect
to
the Conduit Mortgage Loans, as applicable; and in the case of Residential
Funding, certified by the closing attorney or an officer of the title insurer
which issued the related title insurance policy certifying that the copy is
a
true copy of the original of the Mortgage which has been transmitted for
recording in the appropriate recording office of the jurisdiction in which
the
Mortgaged Property is located. (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, and except with respect to the
Residential Funding Mortgage Loans consolidation or extension agreements, (if
provided), with evidence of recording thereon or a certified true copy of such
agreement submitted for recording, unless, in the case of the Residential
Funding Mortgage Loans, such originals are unavailable (in which event
Residential Funding shall deliver to the Custodian or the Trustee, as
applicable, a photocopy of each such original, certified by Residential Funding
to be a true and complete copy of the original);
(v) except
with respect to each MERS Designated Mortgage Loan, the original Assignment
of
Mortgage for each Mortgage Loan endorsed in blank and in recordable
form;
(vi) (A)
except with respect to each Residential Funding Mortgage Loan, 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 Custodian or the
Trustee, as applicable, 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 Custodian or the Trustee, as
applicable, 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 and (B) with respect to each Residential Funding Mortgage Loan,
originals of all intervening assignments of Mortgage, with evidence of recording
thereon, showing a complete chain of title from the originator to Residential
Funding, and (y) if such public recording office retains the original recorded
intervening assignment of Mortgage, Residential Funding may deliver or cause
to
be delivered to the Custodian or the Trustee, as applicable, a certified
photocopy from the appropriate recording office of such intervening assignment
of Mortgage to be a true and complete copy of the original recorded intervening
assignment of Mortgage;
(vii) (A)
except with respect to the Residential Funding Mortgage Loans, 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 (B) with respect to the Residential Funding Mortgage
Loans, a policy of title insurance in the form and amount required by the
Program Guide was effective as of the closing of each Mortgage Loan, is valid
and binding and remains in full force and effect, unless the Mortgaged
Properties are located in the State of Iowa and an attorney’s certificate has
been provided as described in the Program Guide; and
(viii) except
with respect to the Residential Funding Mortgage Loans, a security agreement,
chattel mortgage or equivalent document executed in connection with the Mortgage
(if provided).
The
Depositor shall use reasonable efforts to assist the Custodian, the Trustee
and
the Servicer in enforcing the obligations of the Purchaser under the
Representations and Warranties Agreement, the obligations of Fremont and the
Purchaser under the Fremont Agreements, the obligations of Impac Funding and
the
Purchaser under the Impac Funding Agreements, the obligations of NC Capital
and
the Purchaser under the NC Capital Agreements, the obligations of Meritage
and
the Purchaser under the Meritage Agreements and the obligations of Residential
Funding Agreements and Purchaser under the Residential Funding Agreements
Each
Mortgage Loan for which a Mortgage Note is missing shall be evidenced by a
lost
note affidavit as of the Closing Date. In the event one or more lost note
affidavits are provided to cover multiple missing Mortgage Notes on the Closing
Date, the Depositor shall use reasonable efforts to cause the Purchaser to
deliver to the Custodian or the Trustee, as applicable, the applicable
individual lost note affidavits within ten (10) Business Days of the
Closing Date. If the Purchaser fails to deliver the required individual lost
note affidavits within the specified period of time, the Trustee shall notify
Fremont, Impac Funding, NC Capital, Meritage, Residential Funding or the
Purchaser, as applicable, to take such remedial actions, including, without
limitation, the repurchase by Fremont of any Fremont Mortgage Loan, Impac
Funding of any Impac Funding Mortgage Loan, NC Capital of any NC Capital
Mortgage Loan and Meritage of any Meritage Mortgage Loan within 30 days of
the
Closing Date, the repurchase by Residential Funding of any Residential Funding
Mortgage Loan with 45 days of the Closing Date, or the repurchase by the
Purchaser of any Conduit Mortgage Loan within 180 days of the Closing
Date.
The
Depositor shall use reasonable efforts to cause the Purchaser to deliver to
the
Custodian or the Trustee, as applicable, the applicable recorded document
promptly upon receipt from the respective recording office but in no event
later
than 180 days from the Closing Date.
If
any
Mortgage has been recorded in the name of Mortgage Electronic Registration
System, Inc. (“MERS”) or its designee, no Assignment of Mortgage in favor of the
Trustee will be required to be prepared or delivered and instead, the applicable
Servicer shall take all reasonable actions as are necessary at the expense
of
the Depositor to cause the Trust to be shown as the owner of the related
Mortgage Loan on the records of MERS for the purpose of the system of recording
transfers of beneficial ownership of mortgages maintained by MERS.
The
Depositor shall use reasonable efforts to cause the Purchaser to forward to
the
Custodian or the Trustee, as applicable, additional documents evidencing an
assumption, modification, (except in the case of Residential Funding Mortgage
Loans, consolidation or extension of a Mortgage Loan approved by the applicable
Original Loan Seller in accordance with the terms of the applicable Purchase
Agreement. All such mortgage documents held by the Custodian or the Trustee,
as
applicable, as to each Mortgage Loan shall constitute the “Custodial
File.”
On
or
prior to the Closing Date, the Depositor shall use reasonable efforts to cause
the Purchaser to deliver to the 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 Purchaser 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 Purchaser, at no expense to
the
Trust Fund, the Depositor, the Custodian 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 Purchaser 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 Purchaser. Notwithstanding the foregoing,
if
the Purchaser 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 Purchaser to assign the Mortgage, at the Purchaser’s
expense, to “Deutsche Bank National Trust Company, as trustee under the Pooling
and Servicing Agreement dated as of August 1, 2006, GSAMP Trust 2006-S5.” 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
Purchaser 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
Purchaser.
On
or
prior to the Closing Date, the Depositor shall deliver to the Custodian, 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, the Custodian and the Trustee. Within ten (10) Business Days of the
Closing Date, the Depositor shall deliver a copy of the complete Mortgage Loan
Schedule to the Custodian, the Trustee and the Servicer, and the Custodian
and
the Trustee shall promptly, upon receipt of the Mortgage Loan Schedule (or
any
other mortgage loan schedules received by the Custodian or the Trustee from
the
Depositor), inform the Depositor of receipt thereof.
In
the
event that such original or copy of any document submitted for recordation
to
the appropriate public recording office is not so delivered to the Custodian
or
the Trustee, as applicable, within 90 days following the Closing Date, and
in
the event that the Purchaser does not cause such failure to be cured within
60
days of discovery of receipt of written notification of such failure from the
Depositor, the related Mortgage Loan shall, upon the request of the Depositor,
be repurchased by the Purchaser pursuant to the Representations and Warranties
Agreement at the price and in the manner specified in Section 2.03. The
foregoing repurchase obligation shall not apply in the event that the Purchaser
cannot deliver such original or copy of any document submitted for recordation
to the appropriate public recording office within the specified period due
to a
delay caused by the recording office in the applicable jurisdiction; provided,
that the Purchaser shall instead deliver a recording receipt of such recording
office or, if such recording receipt is not available, an officer’s certificate
of an officer of the Purchaser confirming that such document has been accepted
for recording.
Notwithstanding
anything to the contrary contained in this Section 2.01, in those instances
where the public recording office retains or loses the original Mortgage or
assignment after it has been recorded, the obligations of the Purchaser shall
be
deemed to have been satisfied upon delivery by the Purchaser to the Custodian
or
the Trustee, as applicable, prior to the Closing Date of a copy of such Mortgage
or assignment, as the case may be, certified (such certification to be an
original thereof) by the public recording office to be a true and complete
copy
of the recorded original thereof.
(c) The
Depositor does hereby establish, pursuant to the further provisions of this
Agreement and the laws of the State of New York, an express trust (the “Trust”)
to be known, for convenience, as “GSAMP Trust 2006-S5” 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 Fremont Assignment Agreement, the Impac
Funding Assignment Agreement, the NC Capital Assignment Agreement, the Meritage
Assignment Agreement, the Residential Funding Assignment Agreement and the
Representations and Warranties Agreement) pursuant to Section
2.01(a).
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 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 Impac
Funding Agreements from and after the Closing Date solely insofar as they relate
to the Impac Funding Mortgage Loans, (iv) the obligations of the Depositor
under
the NC Capital Agreements from and after the Closing Date solely insofar as
they
relate to the NC Capital Mortgage Loans, (v) the obligations of the Depositor
under the Meritage Agreements from and after the Closing Date solely insofar
as
they relate to Meritage Mortgage Loans and (vi) the obligations of the Depositor
under the Residential Funding Agreements from and after the Closing Date solely
insofar as they relate to the Residential 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
Custodian and the Trustee, as applicable, acknowledge receipt of the documents
identified in the Initial Certification in the form annexed hereto as
Exhibit E, and the Trustee declares that the Custodian, on the Trustee’s
behalf, holds and will hold such documents and the other documents delivered
to
the Custodian pursuant to Section 2.01, and that the Trustee holds or will
hold such other assets as are included in the Trust Fund, in trust for the
exclusive use and benefit of all present and future Certificateholders. The
Custodian acknowledges that it will maintain possession of the related Mortgage
Notes in the State of Minnesota unless otherwise permitted by the Rating
Agencies.
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 and the Custodian 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 and the Custodian shall not be responsible to verify the validity,
sufficiency or genuineness of any document in any Custodial File.
On
the
Closing Date, the Custodian and the Trustee each shall ascertain that all
documents required to be reviewed by it are in its possession, and shall
deliver
to the Depositor and the Servicer (and in the case of the Custodian, to the
Trustee) 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 Custodian or the Trustee, as applicable, within 30 days
after
the receipt of the Mortgage File by the Trustee and the Custodian) 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 Custodian and the Trustee shall not be responsible to verify
the
validity, sufficiency or genuineness of any document in any Custodial
File.
The
Custodian and the Trustee, as applicable, shall retain possession and custody
of
each Custodial File in accordance with and subject to the terms and conditions
set forth herein. The Servicer shall promptly deliver to the Custodian or the
Trustee, as applicable, upon the execution or receipt thereof, the originals
of
such other documents or instruments constituting the Custodial File as come
into
the possession of the Servicer from time to time.
The
Depositor shall use reasonable efforts to cause the Purchaser 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 Custodian or the Trustee, as applicable, including but not
limited to such documents as the title insurance policy and any other Mortgage
Loan Documents upon return from the public recording office. The Depositor
shall
use reasonable efforts to cause the Purchaser to deliver such documents, at
the
Purchaser’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 and the Custodian. (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) The
Custodian hereby make the representations and warranties set forth in Schedule
III hereto to the Depositor, the Servicer and the Trustee.
(c) It
is
understood and agreed by the Servicer, the Custodian 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, the Custodian 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.
(d) Within
30
days of the earlier of either discovery by or notice to the Purchaser and the
Depositor that any Mortgage Loan does not conform to the requirements as
determined in the Custodian’s or the Trustee’s review of the related Custodial
File, the Depositor and the Purchaser 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 30 days (in the case of
a
Fremont, Impac Funding, NC Capital and Meritage Mortgage Loan), 45 days (in
the
case of a Residential Funding Mortgage Loan) or 180 days (in the case of a
Conduit Mortgage Loan), (i) (A) in the case of the Fremont Mortgage Loans,
Impac Funding Mortgage Loans and NC Capital 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,
Fremont, Impac Funding, NC Capital or the Purchaser, 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) Fremont, Impac Funding, NC Capital, Meritage, Residential Funding or
the Purchaser, pursuant to the Fremont Agreements, Impac Funding Agreements,
NC
Capital Agreements, Meritage Agreements, Residential Funding Agreements 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 of the Opinion of Counsel required by
Section 2.04, if any, and to the Custodian or the Trustee, as applicable, a
Request for Release substantially in the form of Exhibit J, and the
Mortgage File for any such Substitute Mortgage Loan. Notwithstanding the
foregoing, as set forth in the Representations and Warranties Agreement, within
60 days of the earlier of either discovery by, or notice to, the Purchaser
of
any breach of the representations or warranties set forth in clauses (t), (x),
(bb), (cc), (dd) or (ff) of Exhibit I thereto, the Purchaser shall repurchase
such affected Mortgage Loan at the Repurchase Price.
(e) With
respect to any Substitute Mortgage Loan or Loans, the Depositor shall deliver
or
caused to be delivered to the Custodian or the Trustee, as applicable, 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.
(f) The
Depositor shall, based on information provided by the Fremont, Impac Funding,
NC
Capital, Meritage, Residential Funding or the Purchaser, amend the Mortgage
Loan
Schedule for the benefit of the Certificateholders to reflect the removal of
such Deleted Mortgage Loan and the substitution of the Substitute Mortgage
Loan
or Loans and the Depositor shall deliver the amended Mortgage Loan Schedule
to
the Servicer, the Custodian and the Trustee. The Depositor shall have no
liability with respect to the information provided by Fremont, Impac Funding,
NC
Capital or the Purchaser 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 Custodian or the Trustee, as applicable, shall release the Mortgage File
held for the benefit of the Certificateholders relating to such Deleted Mortgage
Loan to the Purchaser or the applicable Original Loan Seller, as applicable,
and
the Trustee shall execute and deliver at the direction of the Purchaser or
the
applicable Original Loan Seller, as applicable, such instruments of transfer
or
assignment prepared by the Purchaser or the applicable Original Loan Seller,
as
applicable, in each case without recourse, as shall be necessary to vest title
in the Purchaser 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.
(g) For
any
month in which Fremont, Impac Funding, NC Capital or the Purchaser, 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 Fremont
or the Purchaser, as applicable, to the Servicer for deposit into the Collection
Account on or before the next Remittance Date.
(h) In
the
event that a Mortgage Loan shall have been repurchased pursuant to this
Agreement, the Fremont Agreements, the Impac Funding Agreements, the NC Capital
Agreements, the Meritage Agreements, the Residential Funding Agreements 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 Custodian or the Trustee, as applicable, shall
release the related Custodial File held for the benefit of the
Certificateholders to such Person as directed by the 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 Custodian and 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 interests created hereby. The “Start-up Day” for purposes of the
REMIC Provisions shall be the Closing Date. The “latest possible maturity date”
is the Distribution Date in September 2036, which is the Distribution Date
following the latest Mortgage Loan maturity date.
Section
2.07 Representations
and Warranties of the Depositor.
The
Depositor hereby represents, warrants and covenants to the Trustee and the
Servicer that as of the date of this Agreement or as of such date specifically
provided herein:
(a) The
Depositor is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware;
(b) The
Depositor has the corporate power and authority to convey the Mortgage Loans
and
to execute, deliver and perform, and to enter into and consummate the
transactions contemplated by, this Agreement;
(c) This
Agreement has been duly and validly authorized, executed and delivered by the
Depositor, all requisite corporate action having been taken, and, assuming
the
due authorization, execution and delivery hereof by the Servicer, 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, and
It
is
understood and agreed that the representations, warranties and covenants set
forth in this Section 2.07 shall survive delivery of the respective
Custodial Files to the Custodian and 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 Fremont pursuant to the Fremont Agreements, Impac Funding
pursuant to the Impac Funding Agreements, NC Capital pursuant to the NC Capital
Agreements, Meritage pursuant to the Meritage Agreements, Residential Funding
pursuant to the Residential Funding Agreements, or the Purchaser pursuant to
the
Representations and Warranties Agreement, the party discovering such breach
shall give prompt written notice thereof to the other parties to this Agreement
and to the Purchaser. The Trustee shall take such action, as directed by the
Depositor, with respect to such breach under the Fremont Agreements, Impac
Funding Agreements, NC Capital Agreements, Meritage Agreements, Residential
Funding Agreements 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
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 either Trust REMIC to fail to qualify as a REMIC under the
Code or the imposition of any tax on “prohibited transactions” or “contributions
after the start-up day” under the REMIC Provisions, or (iii) except as
provided in Section 3.07(a), waive any Prepayment Premiums.
(d) The
Servicer may delegate its responsibilities under this Agreement; provided,
however,
that no
such delegation shall release the Servicer from the responsibilities or
liabilities arising under this Agreement.
(e) If
the
Mortgage relating to a Mortgage Loan had a related First Lien Mortgage Loan
on
the related Mortgaged Property as of the Cut-off Date, then the Servicer, in
such capacity, may consent to the refinancing of the related First Lien Mortgage
Loan, provided that the following requirements are met:
(i) the
resulting Combined Loan-to-Value Ratio of such Mortgage Loan is no higher than
the Combined Loan-to-Value Ratio prior to such refinancing;
(ii) the
interest rate, or, in the case of an adjustable rate related First Lien Mortgage
Loan, the maximum interest rate, for the loan evidencing the refinanced senior
lien is no more than 2.0% higher than the interest rate or the maximum interest
rate, as the case may be, on the existing First Lien Mortgage Loan immediately
prior to the date of such refinancing; and
(iii) the
loan
evidencing the refinanced senior lien is not subject to negative
amortization.
Section
3.02 Subservicing
Agreements between the Servicer and Subservicers. (a)
The
Servicer may enter into subservicing agreements with subservicers (each, a
“Subservicer”), for the servicing and administration of the Mortgage Loans
(“Subservicing Agreements”).
(b) Each
Subservicer shall be (i) authorized to transact business in the state or
states in which the related Mortgaged Properties it is to service are situated,
if and to the extent required by applicable law to enable the Subservicer to
perform its obligations hereunder and under the Subservicing Agreement,
(ii) an institution approved as a mortgage loan originator by the Federal
Housing Administration or an institution that has deposit accounts insured
by
the FDIC and (iii) a 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 applicable 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
(including the Custodian Fees) 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 Purchaser, 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 Custodian
and the Trustee that any such substitution, modification or assumption agreement
has been completed by forwarding to the Custodian or the Trustee, as applicable,
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) Notwithstanding
anything to the contrary contained in this Agreement, 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 will be released from
the Trust Fund, will no longer be an asset of any REMIC, and will be transferred
to the Class X-1 Certificateholders, without recourse, and thereafter (i) the
Class X-1 Certificateholder will be entitled to any amounts subsequently
received in respect of any such Released Loans, (ii) the Class X-1
Certificateholder may designate any servicer to service any such Released Loan
and (iii) the Class X-1 Certificateholder may sell any such Released Loan to
a
third party. Once a Mortgage Loan is charged off pursuant to this Section
3.15(b), the Servicer shall not be obligated to service such Mortgage Loan.
The
Servicer may cease any collection efforts with respect to such Mortgage Loan,
and statements of account may no longer be sent to such Mortgagor. The Servicer
shall write off each charged off Mortgage Loan as bad debt.
(c) Notwithstanding
anything to the contrary contained herein, in connection with a foreclosure
or
acceptance of a deed in lieu of foreclosure, in the event the Servicer has
received actual notice of, or has actual knowledge of the presence of, hazardous
or toxic substances or wastes on the related Mortgaged Property, or if the
Depositor or the Trustee otherwise requests, the Servicer shall cause an
environmental inspection or review of such Mortgaged Property to be conducted
by
a qualified inspector. Upon completion of the inspection, the Servicer shall
promptly provide the Trustee and the Depositor, with a written report of the
environmental inspection.
After
reviewing the environmental inspection report, the Servicer shall determine
consistent with Accepted Servicing Practices, 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 Custodian and 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 Custodian or
the
Trustee, as applicable. Upon receipt of such certification and Request for
Release, the Custodian or the Trustee, as applicable, shall promptly release
the
related Custodial File to 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 Custodian
or the Trustee, as applicable, shall,
upon request of the Servicer and delivery to the Custodian or the Trustee,
as
applicable, 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 Custodian or the Trustee, as applicable, 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 Custodian or the Trustee, as applicable,
a
certificate of a Servicing Officer certifying as to the name and address of
the
Person to which such Mortgage File or such document was delivered and the
purpose or purposes of such delivery. Upon receipt of a certificate of a
Servicing Officer stating that such Mortgage Loan was liquidated and that all
amounts received or to be received in connection with such liquidation that
are
required to be deposited into the Collection Account have been so deposited,
or
that such Mortgage Loan has become an REO Property, a copy of the Request for
Release shall be released by the Custodian or the Trustee, as applicable, to
the
Servicer or its designee. Upon receipt of a Request for Release under this
Section 3.16, the Custodian or the Trustee, as applicable, shall deliver
the related Custodial File to the 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 Lower-Tier REMIC of such
REO
Property subsequent to such period will not result in the imposition of taxes
on
“prohibited transactions” as defined in Section 860F of the Code or cause
either Trust REMIC to fail to qualify as a REMIC under the REMIC Provisions
or
comparable provisions of relevant state laws at any time. The Servicer shall
manage, conserve, protect and operate each REO Property serviced by the Servicer
for the Trustee solely for the purpose of its prompt disposition and sale in
a
manner which does not cause such REO Property to fail to qualify as “foreclosure
property” within the meaning of Section 860G(a)(8) or result in the receipt
by the Lower-Tier REMIC of any “income from non-permitted assets” within the
meaning of Section 860F(a)(2)(B) of the Code or any “net income from
foreclosure property” which is subject to taxation under Section 860G(a)(1)
of the Code. Pursuant to its efforts to sell such REO Property, the Servicer
shall either itself or through an agent selected by the Servicer protect and
conserve such REO Property in the same manner and to such extent as is
customary in the locality where such REO Property is located and may,
incident to its conservation and protection of the interests of the Trustee
on
behalf of the Certificateholders, rent the same, or any part thereof, as the
Servicer deems to be in the best interest of the Trustee on behalf of the
Certificateholders for the period prior to the sale of such REO Property;
provided, however, that any rent received or accrued with respect to such REO
Property qualifies as “rents from real property” as defined in
Section 856(d) of the Code.
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.
Section
3.22 Annual
Statement as to Compliance.
The
Servicer will deliver 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.
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 and the Custodian 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” or “custodian,” as applicable.
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
(including any Yield Maintenance Payments) and to pay to the LIBOR
Certificateholders and the Class M-5, Class M-6, Class M-7, Class B-1 and Class
B-2 Certificates any Basis Risk Carry Forward Amounts.
On
each
Distribution Date on which there exists a Basis Risk Carry Forward Amount on
any
Class of LIBOR Certificates or Class M-5, Class M-6, Class B-1 or Class B-2
Certificates after application of any payments from the Yield Maintenance
Agreement, the Trustee shall (1) withdraw from the Distribution Account and
deposit in the Excess Reserve Fund Account, as set forth in
Section 4.02(a)(iii)(J), the lesser of the Class X Distributable
Amount (to the extent remaining after the distributions specified in
Sections 4.02(a)(iii)(A)-(I)) and the aggregate Basis Risk Carry Forward
Amount and (2) withdraw from the Excess Reserve Fund Account amounts
necessary to pay to such Class or Classes of LIBOR Certificates and the Class
M-5, Class M-6, Class B-1 and Class B-2 Certificates the applicable Basis Risk
Carry Forward Amounts. Such payments shall be allocated to those Classes based
upon the amount of Basis Risk Carry Forward Amount owed to each such Class
and
shall be paid in the priority set forth in Sections 4.02(a)(iii)(K). In the
event that the Class Certificate Balance of any Class of Certificates is reduced
because of Applied Realized Loss Amounts, the applicable Certificateholders
will
not be entitled to receive Basis Risk Carry Forward Amounts on the written
down
amounts on such Distribution Date or any future Distribution Dates (except
to
the extent such Class Certificate Balance is increased as a result of any
Subsequent Recoveries), even if funds are otherwise available for
distribution.
The
Trustee shall account for the Excess Reserve Fund Account as an outside reserve
fund within the meaning of Treasury Regulations Section 1.860G-2(h) and not
as an asset of either Trust REMIC created pursuant to this Agreement. The
beneficial owners of the Excess Reserve Fund Account are the Class X
Certificateholders. For all federal income tax purposes, amounts transferred
by
REMIC II to the Excess Reserve Fund Account shall be treated as first
distributed by the Trustee to the Class X Certificateholders in respect of
the Class X Interest, and then contributed by the Class X
Certificateholders to the Excess Reserve Fund Account. For
federal income tax purposes, the value of the right of the LIBOR
Certificateholders and the Class M-5, Class M-6, Class B-1 and Class B-2
Certificateholders to receive payments from the Excess Reserve Fund Account
shall be $432,000.00.
Any
Basis
Risk Carry Forward Amounts paid by the Trustee to the LIBOR Certificateholders
and the Class M-5, Class M-6, Class B-1 and Class B-2 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, Class B-1 and Class B-2 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, Class B-1 and Class B-2
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.
On
each
Distribution Date, payments from the Yield Maintenance Agreement will be
distributed will be applied as follows:
(i) to
the
LIBOR Certificates, to pay Accrued Certificate Interest and, if applicable,
any
Unpaid Interest Amounts as described in Section 4.02(a)(i)(A), to the extent
unpaid from other Available Funds;
(ii) to
the
Offered Certificates and the Class B-1 Certificates and Class B-2 Certificates,
as part of the Extra Principal Distribution Amount, to pay principal as
described in Section 4.02(a)(ii)(A) and (B), but only to the extent necessary
to
maintain or restore the Overcollateralized Amount by covering current period
or
prior period Realized Losses (prior to distribution of any amounts
due);
(iii) to
the
LIBOR Certificates, to pay any Basis Risk Carry Forward Amounts, in the priority
described in Section 4.02(a)(iii)(K); and
(iv) to
the
Class X Certificates, any remaining amounts.
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, 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
holders of each Class of Offered Certificates and the Class B-1 Certificates
and
Class B-2 Certificates in the following order of priority:
(A) from
the
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;
(B) from
any
remaining Interest Remittance Amounts, to the Class M-1 Certificates, the
Accrued Certificate Interest Distribution Amount for such Class;
(C) from
any
remaining Interest Remittance Amounts, to the Class M-2 Certificates, the
Accrued Certificate Interest Distribution Amount for such Class;
(D) from
any
remaining Interest Remittance Amounts, to the Class M-3 Certificates, the
Accrued Certificate Interest Distribution Amount for such Class;
(E) from
any
remaining Interest Remittance Amounts, to the Class M-4 Certificates, the
Accrued Certificate Interest Distribution Amount for such Class;
(F) from
any
remaining Interest Remittance Amounts, to the Class M-5 Certificates, the
Accrued Certificate Interest Distribution Amount for such Class;
(G) from
any
remaining Interest Remittance Amounts, to the Class M-6 Certificates, the
Accrued Certificate Interest Distribution Amount for such Class;
(H) from
any
remaining Interest Remittance Amounts, to the Class M-7 Certificates, the
Accrued Certificate Interest Distribution Amount for such Class;
(I) from
any
remaining Interest Remittance Amounts, to the Class B-1 Certificates, the
Accrued Certificate Interest Distribution Amount for such Class;
and
(J) from
any
remaining Interest Remittance Amounts, to the Class B-2 Certificates, the
Accrued Certificate Interest Distribution Amount for such Class;
(ii) (A)on
each
Distribution Date (a) 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 and the Class B-1 Certificates and Class B-2
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 sequentially, to
the
Class X-0, Xxxxx X-0, Class M-1, Class M-2, Class M-3, Class M-4, Class M-5,
Class M-6, Class M-7, Class B-1 and Class B-2 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 and the Class B-1 Certificates and Class B-2
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:
(a) to
the
Class A Certificates, the lesser of (x) the Principal Distribution Amount and
(y) the Class A Principal Distribution Amount, allocated sequentially to the
Class A-1 Certificates and Class A-2 Certificates, in that order, until the
respective Class Certificate Balances are reduced to zero;
(b) 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;
(c) 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;
(d) 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;
(e) 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;
(f) 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;
(g) 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;
(h) 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;
(i) to
the
Class B-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, to the Class M-1 Certificates in clause (ii)(B)(b)
above, to the Class M-2 Certificates in clause (ii)(B)(c) above, to the Class
M-3 Certificates in clause (ii)(B)(d) above, to the Class M-4 Certificates
in
clause (ii)(B)(e) above, to the Class M-5 Certificates in clause (ii)(B)(f)
above, to the Class M-6 Certificates in clause (ii)(B)(g) above and to the
Class
M-7 Certificates in clause (ii)(B)(h) above and (y) the Class B-1 Principal
Distribution Amount, until the Class Certificate Balance thereof has been
reduced to zero; and
(j) to
the
Class B-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,
to
the Class M-1 Certificates in clause (ii)(B)(b) above, to the Class M-2
Certificates in clause (ii)(B)(c) above, to the Class M-3 Certificates in clause
(ii)(B)(d) above, to the Class M-4 Certificates in clause (ii)(B)(e) above,
to
the Class M-5 Certificates in clause (ii)(B)(f) above, to the Class M-6
Certificates in clause (ii)(B)(g) above, to the Class M-7 Certificates in clause
(ii)(B)(h) above and to the Class B-1 Certificates in clause (ii)(B)(i)
above
and (y)
the Class B-2 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
holders of the Class B-1 Certificates, any Unpaid Interest Amount for such
Class;
(I) to
the
holders of the Class B-2 Certificates, any Unpaid Interest Amount for such
Class;
(J) 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 Yield Maintenance Agreement Payments;
(K) from
funds on deposit in the Excess Reserve Fund Account (not including any Yield
Maintenance Agreement Payments included in that account), an amount equal to
any
Basis Risk Carry Forward Amount with respect to the LIBOR Certificates and
the
Class M-5, Class M-6, Class B-1 and Class B-2 Certificates for that Distribution
Date, first, to the Class A-1 Certificates, second, to the Class M-1
Certificates, third, to the Class M-2 Certificates, fourth, to the Class M-3
Certificates, fifth, to the Class M-4 Certificates, sixth, to the Class M-5
Certificates, seventh, to the Class M-6 Certificates, eighth, to the Class
M-7
Certificates, ninth, to the Class B-1 Certificates and tenth, to the Class
B-2
Certificates, in each case up to their respective unpaid remaining Basis Risk
Carry Forward Amounts, in each case to the extent not covered by the Yield
Maintenance Agreement Payments;
(L) to
the
Offered Certificates and the Class B-1 Certificates and Class B-2 Certificates,
any Relief Act Interest Shortfalls, on a pro rata basis;
(M) 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)-(L);
and
(N) to
the
holders of the Class R Certificates (in respect of the Class R-II Interest),
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. Notwithstanding the reduction of the aggregate Class Certificate
Balance of the Class M, Class B and Class X Certificates to zero, any principal
distributions allocated to the Class A Certificates will be allocated
concurrently on a pro rata basis by aggregate Class Certificate Balance to
the
Class A-1 Certificates and Class A-2 Certificates.
If
on any
Distribution Date, as a result of the foregoing allocation rules, 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 and the Class B-1 Certificates and Class B-2 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 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(d); 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 and the Class B-1 Certificates and Class B-2
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).
All
Realized Losses on the Mortgage Loans shall be allocated by the Trustee on
each
Distribution Date to the following REMIC I Regular Interests in the specified
percentages, as follows: first, to Uncertificated Interest payable to the REMIC
I Regular Interest I-LTAA and REMIC I Regular Interest I-LTZZ up to an aggregate
amount equal to the REMIC I Interest Loss Allocation Amount, 98.00% and 2.00%,
respectively; second, to the Uncertificated Balances of the REMIC I Regular
Interest I-LTAA and REMIC I Regular Interest I-LTZZ up to an aggregate amount
equal to the REMIC I Principal Loss Allocation Amount, 98.00% and 2.00%,
respectively; third, to the Uncertificated Balances of REMIC I Regular Interest
I-LTAA, REMIC I Regular Interest I-LTB2 and REMIC I Regular Interest I-LTZZ,
98.00%, 1.00% and 1.00%, respectively, until the Uncertificated Balance of
REMIC
I Regular Interest I-LTB2 has been reduced to zero; fourth, to the
Uncertificated Balances of REMIC I Regular Interest I-LTAA, REMIC I Regular
Interest I-LTB1 and REMIC I Regular Interest I-LTZZ, 98.00%, 1.00% and 1.00%,
respectively, until the Uncertificated Balance of REMIC I Regular Interest
I-LTB1 has been reduced to zero; fifth, to the Uncertificated Balances of REMIC
I Regular Interest I-LTAA, REMIC I Regular Interest I-LTM7 and REMIC I Regular
Interest I-LTZZ, 98.00%, 1.00% and 1.00%, respectively, until the Uncertificated
Balance of REMIC I Regular Interest I-LTM7 has been reduced to zero; sixth,
to
the Uncertificated Balances of REMIC I Regular Interest I-LTAA, REMIC I Regular
Interest I-LTM6 and REMIC I Regular Interest I-LTZZ, 98.00%, 1.00% and 1.00%,
respectively, until the Uncertificated Balance of REMIC I Regular Interest
I-LTM6 has been reduced to zero; seventh, to the Uncertificated Balances of
REMIC I Regular Interest I-LTAA, REMIC I Regular Interest I-LTM5 and REMIC
I
Regular Interest I-LTZZ, 98.00%, 1.00% and 1.00%, respectively, until the
Uncertificated Balance of REMIC I Regular Interest I-LTM5 has been reduced
to
zero; eighth, to the Uncertificated Balances of REMIC I Regular Interest I-LTAA,
REMIC I Regular Interest I-LTM4 and REMIC I Regular Interest I-LTZZ, 98.00%,
1.00% and 1.00%, respectively, until the Uncertificated Balance of REMIC I
Regular Interest I-LTM4 has been reduced to zero; ninth, to the Uncertificated
Balances of REMIC I Regular Interest I-LTAA, REMIC I Regular Interest I-LTM3
and
REMIC I Regular Interest I-LTZZ, 98.00%, 1.00% and 1.00%, respectively, until
the Uncertificated Balance of REMIC I Regular Interest I-LTM3 has been reduced
to zero; tenth, to the Uncertificated Balances of REMIC I Regular Interest
I-LTAA, REMIC I Regular Interest I-LTM2 and REMIC I Regular Interest I-LTZZ,
98.00%, 1.00% and 1.00%, respectively, until the Uncertificated Balance of
REMIC
I Regular Interest I-LTM2 has been reduced to zero; and eleventh, to the
Uncertificated Balances of REMIC I Regular Interest I-LTAA, REMIC I Regular
Interest I-LTM1 and REMIC I Regular Interest I-LTZZ, 98.00%, 1.00% and 1.00%,
respectively, until the Uncertificated Balance of REMIC I Regular Interest
I-LTM1 has been reduced to zero.
Section
4.06 Distributions
on the REMIC I Regular Interests.
(a) (1)On
each
Distribution Date, the following amounts, in the following order of priority,
shall be distributed by REMIC I to REMIC II on account of the REMIC I Regular
Interests or withdrawn from the Distribution Account and distributed to the
holders of the Class R-I Interest, as the case may be:
(i) to
Holders of REMIC I Regular Interest I-LTAA, REMIC I Regular Interest I-LTA1,
REMIC I Regular Interest I-LTA2, REMIC I Regular Interest I-LTM1, REMIC I
Regular Interest I-LTM2, REMIC I Regular Interest I-LTM3, REMIC I Regular
Interest I-LTM4, REMIC I Regular Interest I-LTM5, REMIC I Regular Interest
I-LTM6, REMIC I Regular Interest I-LTM7, REMIC I Regular Interest I-LTB1, REMIC
I Regular Interest I-LTB2 and REMIC I Regular Interest I-LTZZ, pro
rata,
in an
amount equal to (A) the Uncertificated Interest for such Distribution Date,
plus
(B) any amounts in respect thereof remaining unpaid from previous Distribution
Dates. Amounts payable as Uncertificated Interest in respect of REMIC I Regular
Interest I-LTZZ shall be reduced when the REMIC I Overcollateralization Amount
is less than the REMIC I Required Overcollateralization Amount, by the lesser
of
(x) the amount of such difference and (y) the Maximum I-LTZZ Uncertificated
Interest Deferral Amount and such amount will be payable to REMIC I Regular
Interest I-LTA1, REMIC I Regular Interest I-LTA2, REMIC I Regular Interest
I-LTM1, REMIC I Regular Interest I-LTM2, REMIC I Regular Interest I-LTM3, REMIC
I Regular Interest I-LTM4, REMIC I Regular Interest I-LTM5, REMIC I Regular
Interest I-LTM6, REMIC I Regular Interest I-LTM7, REMIC I Regular Interest
I-LTB1 and REMIC I Regular Interest I-LTB2 in the same proportion as the
Overcollateralization Deficiency is allocated to the Corresponding Certificates
and the Uncertificated Balance of REMIC I Regular Interest I-LTZZ shall be
increased by such amount;
to
the
Holders of REMIC I Regular Interests, in an amount equal to the remainder of
the
Available Distribution Amount funds for such Distribution Date after the
distributions made pursuant to clause (i) above, allocated as
follows:
(A) 98.00%
of
such remainder to the Holders of REMIC I Regular Interest I-LTAA, until the
Uncertificated Balance of such Uncertificated REMIC I Regular Interest is
reduced to zero;
(B) 2.00%
of
such remainder, first, to the Holders of REMIC I Regular Interest I-LTA1, REMIC
I Regular Interest I-LTA2, REMIC I Regular Interest I-LTM1, REMIC I Regular
Interest I-LTM2, REMIC I Regular Interest I-LTM3, REMIC I Regular Interest
I-LTM4, REMIC I Regular Interest I-LTM5, REMIC I Regular Interest I-LTM6, REMIC
I Regular Interest I-LTM7, REMIC I Regular Interest I-LTB1 and REMIC I Regular
Interest I-LTB2, 1% of and in the same proportion as principal payments are
allocated to the Corresponding Certificates, until the Uncertificated Balances
of such REMIC I Regular Interests are reduced to zero and second to the Holders
of REMIC I Regular Interest I-LTZZ, until the Uncertificated Balance of such
REMIC I Regular Interest is reduced to zero; then
(C) any
remaining amount to the Holders of the Class R-I Interest;
provided,
however, that 98.00% and 2.00% of any principal payments that are attributable
to an Overcollateralization Reduction Amount shall be allocated to Holders
of
REMIC I Regular Interest I-LTAA and REMIC I Regular Interest I-LTZZ,
respectively.
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 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 the NIM Trustee, or such other name or names as the Depositor shall request,
and to deliver such Class X Certificates and Class P Certificates to Deutsche
Bank National Trust Company, as NIM Trustee, or to such other 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
(i) the transfer of the Class X, Class X-1, Class P or
Class R Certificates, to the Depositor or an Affiliate of the
Depositor, (ii) the transfer of the Class X or Class P
Certificates to the NIM Issuer or the NIM Trustee, or (iii) a transfer of
the Class X or Class P Certificates from the NIM Issuer or the NIM
Trustee to the Depositor or an Affiliate of the Depositor, 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 (1) the transfer of the Class R, Class X, Class
X-1 or Class P Certificates to the Depositor or an affiliate of the
Depositor, (2) the transfer of the Class X or Class P
Certificates to the NIM Issuer or the NIM Trustee, or (3) a transfer of the
Class X or Class P Certificates from the NIM Issuer or the NIM Trustee
to the Depositor or an Affiliate of the Depositor, 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, 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 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, other than a Class B 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.
The
Class R 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.
(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
either 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 and the Class B-1 Certificates and Class
B-2
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. 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.
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 (k) 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 Custodian and the Trustee.
Except
as otherwise provided in Section 8.01:
(a) the
Custodian and the Trustee may request and rely upon and shall be protected
in
acting or refraining from acting upon any resolution, Officer’s Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper
or document believed by it to be genuine and to have been signed or presented
by
the proper party or parties and neither the Trustee nor the Custodian shall
have
any responsibility to ascertain or confirm the genuineness of any signature
of
any such party or parties;
(b) the
Custodian and the Trustee may consult with counsel, financial advisers or
accountants and the advice of any such counsel, financial advisers or
accountants and any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such Opinion of
Counsel;
(c) neither
the Trustee nor the Custodian shall be liable for any action taken, suffered
or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement, nor shall
either the Trustee or the Custodian be liable for acts or omissions of the
other;
(d) the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or document,
unless requested in writing to do so by Holders of Certificates evidencing
not
less than 25% of the Voting Rights allocated to each Class of
Certificates;
(e) the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, accountants or attorneys
and
the Trustee shall not be responsible for any misconduct or negligence on the
part of any agents, accountants or attorneys appointed with due care by it
hereunder; provided that the Trustee shall not be responsible for any act or
omission of the Custodian;
(f) neither
the Trustee nor the Custodian shall be required to risk or expend its own funds
or otherwise incur any financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers hereunder if it shall
have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not assured to it;
(g) the
Trustee shall not be liable for any loss on any investment of funds pursuant
to
this Agreement (other than as issuer of the investment security 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;
(j) the
Trustee shall remit the Custodian Fee to the Custodian pursuant to a separate
agreement; and
(k) 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, the Custodian and any director, officer, employee, or agent of the
Trustee or the Custodian 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 or the Custodian’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
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 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 either Trust REMIC created
hereunder;
(h) pay,
from
the sources specified in the second to last paragraph of this Section 8.11,
the amount of any federal or state tax, including prohibited transaction taxes
as described below, imposed on either 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;
(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;
and
(k) as
and
when necessary and appropriate, represent either 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 either Trust REMIC, enter into settlement agreements with
any governmental taxing agency, extend any statute of limitations relating
to
any tax item of either 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 (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, Class B-1 and Class B-2
Certificates to receive Basis Risk Carry Forward Amounts as the beneficial
ownership of interests in a grantor trust and not as obligations of either
Trust
REMIC created hereunder, for federal income tax purposes.
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, Class B-1 and Class B-2 Certificates
of the right to receive Basis Risk Carry Forward Amounts from the Excess Reserve
Fund 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 a Class M-5, Class M-6,
Class B-1 or Class B-2 Certificates to receive the related Basis Risk Carry
Forward Amount for purposes of allocating the purchase price of a LIBOR
Certificate and a Class M-5, Class M-6, Class B-1 and Class B-2 Certificates
acquired by an initial Holder thereof between such right and the related REMIC
II Regular Certificate. 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.
If
any
tax is imposed on “prohibited transactions” of either Trust REMIC as defined in
Section 860F(a)(2) of the Code, on the “net income from foreclosure
property” of REMIC I as defined in Section 860G(c) of the Code, on any
contribution to either 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, 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 Purchaser if such tax arises out of or results from the
Purchaser’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).
For
as
long as each Trust REMIC shall exist, the Trustee shall act in accordance with
this Agreement and shall comply with any directions of the Depositor or the
Servicer as provided herein so as to assure such continuing treatment. The
Trustee shall not (a) sell or permit the sale of all or any portion of the
Mortgage Loans unless pursuant to a repurchase in accordance with this
Agreement, or of any investment of deposits in an Account, and (b) accept
any contribution to either Trust REMIC after the Startup Day without receipt
of
a REMIC Opinion.
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 V, 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 Custodian, 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 V, 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.
(b) 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(b), 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(b), 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.
(c) 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
Classification of the Excess Reserve Fund Account.
For
federal income tax purposes, the Trustee shall treat the Excess Reserve Fund
Account and the Yield Maintenance Agreement as beneficially owned by the holders
of the Class X Certificates. The Trustee shall treat the rights that each
Class of LIBOR Certificates and the Class M-5, Class M-6, Class B-1 and Class
B-2 Certificates has to receive payments of Basis Risk Carry Forward Amounts
from the Excess Reserve Fund Account as rights to receive payments under an
interest rate cap contract written by the Class X Certificateholders in
favor of each Class. Accordingly, each Class of LIBOR Certificates and the
Class
M-5, Class M-6, Class B-1 and Class B-2 Certificates will be comprised of two
components - a REMIC II Regular Certificate and an interest in an interest
rate
cap contract, and the Class X Certificateholders will be comprised of two
components - a REMIC II Regular Certificate and ownership of the Excess Reserve
Fund Account, subject to an obligation to pay Basis Risk Carry Forward Amounts.
The Trustee shall allocate the issue price for a Class of Certificates among
the
respective components for purposes of determining the issue price of the
applicable REMIC II Regular Certificates 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 and a Class M-5, Class M-6,
Class B-1 and Class B-2 Certificate to receive the related Basis Risk Carry
Forward Amount for purposes of allocating the purchase price of an initial
LIBOR
Certificateholder and Class M-5, Class M-6, Class B-1 and Class B-2
Certificateholder between such right and the related REMIC II Regular
Certificate.
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 Purchaser and the
Depositor with the provisions of Regulation AB promulgated by the SEC under
the
1934 Act (17 C.F.R. §§ 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 Purchaser or the Depositor
for
delivery of additional or different information as the Purchaser 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.
Section
8.15 Custodian
Responsibilities.
(a) The
Custodian shall provide access to the Mortgage Loan Documents in possession
of
the Custodian regarding the related Mortgage Loans and REO Property and the
servicing thereof to the Trustee, the Certificateholders, the FDIC, and the
supervisory agents and examiners of the FDIC, such access being afforded only
upon reasonable prior written request and during normal business hours at the
office of the Custodian. The Custodian shall allow representatives of the above
entities to photocopy any of the records and documentation and shall provide
equipment for that purpose at the expense of the person requesting such
access.
(b) The
Custodian may resign from its obligations hereunder upon 60 days’ prior written
notice to the Trustee, the Depositor and the Servicer. Such resignation shall
take effect upon (i) the appointment of a successor Custodian reasonably
acceptable to the Depositor within such 60 day period; and (ii) delivery of
all
Mortgage Loan Files to the successor Custodian. The Trustee shall have the
right, but not the obligation, to become the successor Custodian. If no
successor Custodian is appointed within 60 days after written notice of such
Custodian’s resignation is received by the Trustee, the Custodian may petition a
court of competent jurisdiction to appoint a successor Custodian.
(c) Upon
such
resignation and appointment of successor Custodian, the Custodian shall, at
the
Custodian’s expense, promptly transfer to the successor Custodian, as directed
in writing by the Trustee, all applicable Mortgage Files being administered
under this Agreement. Notwithstanding the foregoing, the Trust Fund, not the
Custodian, shall bear the costs relating to the transfer of Mortgage Files
if
the Custodian shall resign with cause (including the Custodian’s resignation due
to the failure of the Custodian to be paid all fees due to the Custodian
hereunder).
(d) For
so
long as reports are required to be filed with the Commission under the Exchange
Act with respect to the Trust, the Custodian shall not utilize any Subcontractor
for the performance of its duties hereunder if such Subcontractor would be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB without the prior written consent of the Depositor, in its sole
discretion.
(e) The
Custodian shall indemnify the Depositor, the Trustee, and their respective
officers and directors against any and all claims, losses, damages, penalties,
fines, forfeitures, reasonable and necessary legal fees and related costs,
judgments, and any other costs, fees and expenses that any of them may sustain
in any way related to (i) the failure of the Custodian to deliver when required
any assessment of compliance required to be delivered by the Custodian or (ii)
any material misstatement or omission contained in any assessment of compliance
provided to be delivered by the Custodian. This indemnity shall survive the
termination of this Agreement or the earlier resignation or removal of the
Custodian.
(f) Notwithstanding
anything in this Agreement to the contrary, the Custodian shall not be required
to deliver, or to cause to be delivered, an assessment of compliance or
accountant’s attestation report pursuant to Section 3.23 for any fiscal year of
the Trust in which the Custodian’s Weighted Average Percentage is 5% or less.
The “Custodian’s Weighted Average Percentage” means, for each fiscal year of the
Trust and the Custodian, the quotient, expressed as a percentage, of (A) the
aggregate of the Stated Principal Balance for each Distribution Date in such
fiscal year of the Mortgage Loans for which the Custodian acted as Custodian
divided by (B) the aggregate of the Pool Stated Principal Balance for each
Distribution Date in such fiscal year.
Section
8.16 Limitations
on Custodial Responsibilities.
(a) The
Custodian shall be under no duty or obligation to inspect, review or examine
the
Mortgage Files to determine that the contents thereof are appropriate for the
represented purpose or that they have been actually recorded or that they are
other than what they purport to be on their face.
(b) The
Custodian shall not be responsible for preparing or filing any reports or
returns relating to federal, state or local income taxes with respect to this
Agreement, other than for the Custodian's compensation or for reimbursement
of
expenses.
(c) The
Custodian shall not be responsible or liable for, and makes no representation
or
warranty with respect to, the validity, adequacy or perfection or any lien
upon
or security interest in any Mortgage File.
(d) The
duties and obligations of the Custodian shall only be such as are expressly
set
forth in this Agreement or as set forth in a written amendment to this Agreement
executed by the parties hereto or their successors and assigns. In the event
that any provision of this Agreement implies or requires that action or
forbearance be taken by a party, but is silent as to which party has the duty
to
act or refrain from acting, the parties agree that the Custodian shall not
be
the party required to take the action or refrain from acting. In no event shall
the Custodian have any responsibility to ascertain or take action except as
expressly provided herein.
(e) The
Custodian makes no representations and shall have no responsibilities (except
as
expressly set forth herein) as to the validity, sufficiency, value, genuineness,
ownership or transferability of any of the Mortgage Loans, and shall not be
required to and shall not make any representations as to the validity, value
or
genuineness of the Mortgage Loans.
(f) The
Custodian shall not be liable for any error of judgment, or for any act done
or
step taken or omitted by it, in good faith, or for any mistake of fact or law,
or for anything that it may do or refrain from doing in connection therewith,
except in the case of its negligent performance or omission or its bad faith
or
willful misfeasance.
(g) The
Custodian shall not be responsible to verify (i) the validity, legality,
enforceability, sufficiency, due authorization or genuineness of any document
in
the Mortgage File or of any Mortgage Loans or (ii) the collectibility,
insurability, effectiveness including the authority or capacity of any Person
to
execute or issue any document in the Mortgage File, or suitability of any
Mortgage Loans unless specified otherwise in this Agreement.
(h) The
Custodian shall have no obligation to verify the receipt of any such documents
the existence of which was not made known to the Custodian by receipt of the
Mortgage File.
(i) The
Custodian shall have no obligation to determine whether the recordation of
any
document is necessary.
(j) In
no
event shall the Custodian or its directors, affiliates, officers, agents, and
employees be held liable for any special, indirect or consequential damages
resulting from any action taken or omitted to be taken by it or them hereunder
or in connection herewith even if advised of the possibility of such
damages.
(k) Any
Person into which the Custodian may be merged or consolidated, or any Person
resulting from any merger or consolidation to which the Custodian shall be
a
party, or any person succeeding to the business of the Custodian, shall be
the
successor of the Custodian hereunder without the execution or filing of any
paper or any further act on the part of any of the parties hereto anything
herein to the contrary notwithstanding.
ARTICLE
IX
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, and (ii) the lesser of (x) the
appraised value of any REO Property as determined by the higher of two
appraisals completed by two independent appraisers selected by (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 (“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. 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 Custodian or the Trustee,
as applicable, of a Request for Release therefor, the Custodian or the Trustee,
as applicable, 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
Section
10.01 Amendment.
This
Agreement may be amended from time to time by the Depositor, the Servicer,
the
Custodian and the Trustee without the consent of any of the Certificateholders
(i) to cure any ambiguity or mistake, (ii) to correct any defective
provision herein or to supplement any provision herein which may be inconsistent
with any other provision herein, (iii) to add to the duties of the
Depositor, the Custodian 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 Custodian, 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; 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 Custodian and the Trustee with the consent of the Holders of Certificates
evidencing Percentage Interests aggregating not less than 662/3%
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 662/3%,
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 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.
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, the Custodian and the Servicer by the Depositor in writing; (b) in
the case of Ocwen, 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, the Custodian
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, the Custodian 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; (d) in the case of X.X. Xxxxxx Trust
Company, to X.X. Xxxxxx Trust Company, National Association, 0000 Xxxxxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, Attention D’Xxx Xxxxxxxx, or such
other address as may be hereafter furnished to the Depositor, the Servicer
and
the Trustee in writing, (e) in the case of U.S. Bank National Association,
to
U.S. Bank National Association, 0000
Xxxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000,
Attention: Xxxx Xxxx, or such other address as may be hereafter furnished to
the
Depositor, the Servicer and the Trustee in writing and (f) 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.
* * * * * * *
GS
MORTGAGE SECURITIES CORP.,
as
Depositor
By:
/s/
Xxxxxxxx Xxxx
Name:
Xxxxxxxx Xxxx
Title:
Vice President
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
solely
as
Trustee and as a custodian
By:
/s/
Xxxxxxx Xxxxx
Name:
Xxxxxxx Xxxxx
Title:
Vice President
By:
/s/
Xxxxxxxx Hernansader
Name:
Xxxxxxxx Hernansader
Title:
Associate
OCWEN
LOAN SERVICING, LLC,
as
Servicer
By:
/s/
Xxxxxx X. Xxxxx
Name:
Xxxxxx X. Xxxxx
Title:
President
U.S.
BANK
NATIONAL ASSOCIATION,
as
Custodian
By:
/s/
Xxxx X. Xxxx
Name:
Xxxx X. Xxxx
Title:
Assistant Vice President
SCHEDULE I
Mortgage
Loan Schedule