EXHIBIT 99.1
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GSAA HOME EQUITY TRUST 2006-6
ASSET-BACKED CERTIFICATES
SERIES 2006-6
MASTER SERVICING
and
TRUST AGREEMENT
among
GS MORTGAGE SECURITIES CORP.,
Depositor,
U.S. BANK NATIONAL ASSOCIATION,
Trustee
DEUTSCHE BANK NATIONAL TRUST COMPANY
and
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
and
U.S. BANK NATIONAL ASSOCIATION
and
XXXXX FARGO BANK, N.A.,
Custodians
and
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
Master Servicer and Securities Administrator
Dated April 1, 2006
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TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
Section 1.01. Definitions.................................................................................10
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
Section 2.01. Conveyance of Mortgage Loans................................................................41
Section 2.02. Acceptance by the Custodians of the Mortgage Loans..........................................43
Section 2.03. Execution and Delivery of Certificates......................................................45
Section 2.04. REMIC Matters...............................................................................45
Section 2.05. Representations and Warranties of the Depositor.............................................45
Section 2.06. Representations and Warranties of JPMorgan..................................................46
Section 2.07. Representations and Warranties of Deutsche Bank.............................................47
Section 2.08. Representations and Warranties of U.S. Bank.................................................48
Section 2.09. Representations and Warranties of Xxxxx Fargo...............................................48
ARTICLE III
TRUST ACCOUNTS
Section 3.01. Excess Reserve Fund Account; Distribution Account...........................................49
Section 3.02. Investment of Funds in the Distribution Account.............................................50
ARTICLE IV
DISTRIBUTIONS
Section 4.01. Priorities of Distribution..................................................................52
Section 4.02. Monthly Statements to Certificateholders....................................................58
Section 4.03. Allocation of Applied Realized Loss Amounts.................................................61
Section 4.04. Certain Matters Relating to the Determination of LIBOR......................................61
ARTICLE V
THE CERTIFICATES
Section 5.01. The Certificates............................................................................62
Section 5.02. Certificate Register; Registration of Transfer and Exchange of Certificates.................63
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Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates...........................................68
Section 5.04. Persons Deemed Owners.......................................................................68
Section 5.05. Access to List of Certificateholders' Names and Addresses...................................69
Section 5.06. Maintenance of Office or Agency.............................................................69
ARTICLE VI
THE DEPOSITOR
Section 6.01. Liabilities of the Depositor................................................................69
Section 6.02. Merger or Consolidation of the Depositor....................................................69
Section 6.03. Limitation on Liability of the Depositor and Others.........................................69
Section 6.04. Servicing Compliance Review.................................................................70
Section 6.05. Option to Purchase Defaulted Mortgage Loans.................................................70
ARTICLE VII
SERVICER DEFAULT
Section 7.01. Events of Default...........................................................................70
Section 7.02. Master Servicer to Act; Appointment of Successor............................................71
Section 7.03. Master Servicer to Act as Servicer..........................................................72
Section 7.04. Notification to Certificateholders..........................................................72
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE CUSTODIANS
Section 8.01. Duties of the Trustee and the Custodians....................................................73
Section 8.02. [Reserved]..................................................................................74
Section 8.03. Certain Matters Affecting the Trustee and the Custodians....................................74
Section 8.04. Trustee and Custodians Not Liable for Certificates or Mortgage Loans........................75
Section 8.05. Trustee May Own Certificates................................................................76
Section 8.06. Trustee's Fees and Expenses.................................................................76
Section 8.07. Eligibility Requirements for the Trustee....................................................77
Section 8.08. Resignation and Removal of the Trustee......................................................77
Section 8.09. Successor Trustee...........................................................................78
Section 8.10. Merger or Consolidation of the Trustee or the Custodians....................................78
Section 8.11. Appointment of Co-Trustee or Separate Trustee...............................................79
Section 8.12. Tax Matters.................................................................................80
Section 8.13. [Reserved]..................................................................................83
Section 8.14. Tax Classification of the Excess Reserve Fund Account.......................................83
Section 8.15. Custodial Responsibilities; Compensation....................................................83
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ARTICLE IX
ADMINISTRATION OF THE MORTGAGE LOANS BY THE MASTER SERVICER
Section 9.01. Duties of the Master Servicer; Enforcement of Servicer's Obligations........................85
Section 9.02. Maintenance of Fidelity Bond and Errors and Omissions Insurance.............................87
Section 9.03. Representations and Warranties of the Master Servicer.......................................87
Section 9.04. Master Servicer Events of Default...........................................................89
Section 9.05. Waiver of Default...........................................................................91
Section 9.06. Successor to the Master Servicer............................................................91
Section 9.07. Compensation of the Master Servicer.........................................................92
Section 9.08. Merger or Consolidation.....................................................................92
Section 9.09. Resignation of the Master Servicer..........................................................93
Section 9.10. Assignment or Delegation of Duties by the Master Servicer...................................93
Section 9.11. Limitation on Liability of the Master Servicer..............................................93
Section 9.12. Indemnification; Third Party Claims.........................................................94
ARTICLE X
CONCERNING THE SECURITIES ADMINISTRATOR
Section 10.01. Duties of the Securities Administrator......................................................95
Section 10.02. Certain Matters Affecting the Securities Administrator......................................96
Section 10.03. Securities Administrator Not Liable for Certificates or Mortgage Loans......................98
Section 10.04. Securities Administrator May Own Certificates...............................................98
Section 10.05. Securities Administrator's Fees and Expenses................................................98
Section 10.06. Eligibility Requirements for the Securities Administrator...................................99
Section 10.07. Resignation and Removal of the Securities Administrator.....................................99
Section 10.08. Successor Securities Administrator.........................................................100
Section 10.09. Merger or Consolidation of the Securities Administrator....................................101
Section 10.10. Assignment or Delegation of Duties by the Securities Administrator.........................101
ARTICLE XI
TERMINATION
Section 11.01. Termination upon Liquidation or Purchase of the Mortgage Loans.............................102
Section 11.02. Final Distribution on the Certificates.....................................................103
Section 11.03. Additional Termination Requirements........................................................104
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01. Amendment..................................................................................105
Section 12.02. Recordation of Agreement; Counterparts.....................................................107
Section 12.03. Governing Law..............................................................................107
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Section 12.04. Intention of Parties.......................................................................107
Section 12.05. Notices....................................................................................108
Section 12.06. Severability of Provisions.................................................................109
Section 12.07. Limitation on Rights of Certificateholders.................................................109
Section 12.08. Certificates Nonassessable and Fully Paid..................................................110
Section 12.09. Waiver of Jury Trial.......................................................................110
ARTICLE XIII
EXCHANGE ACT REPORTING
Section 13.01. Filing Obligations.........................................................................110
Section 13.02. Form 10-D Filings..........................................................................111
Section 13.03. Form 8-K Filings...........................................................................112
Section 13.04. Form 10-K Filings..........................................................................112
Section 13.05. Xxxxxxxx-Xxxxx Certification...............................................................113
Section 13.06. Form 15 Filing.............................................................................114
Section 13.07. Report on Assessment of Compliance and Attestation.........................................114
Section 13.08. Use of Subservicers and Subcontractors.....................................................115
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SCHEDULES
Schedule X.Xxxxxxxx Loan Schedule
EXHIBITS
Exhibit A. Form of Class A, Class M and Class B Certificates
Exhibit B. Form of Class P Certificates
Exhibit C Form of Class R, Class RC and Class RX Certificates
Exhibit D Form of Class X Certificate
Exhibit E Form of Initial Certification of Trustee
Exhibit F Form of Document Certification and Exception Report of Custodian
Exhibit G Form of Residual Transfer Affidavit
Exhibit H Form of Transferor Certificate
Exhibit I Form of Rule 144A Letter
Exhibit J-1 Form of Performance Certification (Master Servicer)
Exhibit J-2 Form of Performance Certification (Securities Administrator)
Exhibit K Form of Servicing Criteria to be addressed in assessment of
compliance statement
Exhibit L Form of Request for Release of Documents (U.S. Bank)
Exhibit L-1 Form of Request for Release of Documents (Deutsche Bank)
Exhibit L-2 Form of Request for Release of Documents (JPMorgan Chase Bank)
Exhibit L-2 Form of Request for Release of Documents (Xxxxx Fargo Bank)
Exhibit M Master Mortgage Loan Purchase Agreement, dated as of July 1,
2004, between Countrywide Home Loans, Inc. and Xxxxxxx Sachs
Mortgage Company
Exhibit N Mortgage Loan Sale and Servicing Agreement, among American
Home Mortgage Corp., American Home Mortgage Servicing, Inc.
and Xxxxxxx Xxxxx Mortgage Company, dated as of December 1,
2005
Exhibit O Comprehensive Amended and Restated Servicing Agreement, dated
as of September 1, 2005 by and among Xxxxxxx Sachs Mortgage
Company and JPMorgan Chase Bank, National Association
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Exhibit P Form of Master Loan Purchase Agreement, between various
sellers and Xxxxxxx Xxxxx Mortgage Company
Exhibit Q Flow Servicing Agreement, dated as of May 1, 2005, between
Countrywide Home Loans Servicing LP and Xxxxxxx Sachs Mortgage
Company
Exhibit R Flow Servicing Agreement, dated as of January 1, 2006, between
Avelo Mortgage, L.L.C. and Xxxxxxx Xxxxx Mortgage Company
Exhibit S Master Seller's Warranties and Servicing Agreement, between
Xxxxxxx Sachs Mortgage Company and Xxxxx Fargo Bank, N.A.,
dated as of August 1, 2004, as amended by Amendment No. 1,
dated as of April 26, 2005
vi
THIS MASTER SERVICING AND TRUST AGREEMENT, dated as of April 1, 2006
(this "Agreement"), is hereby executed by and among GS MORTGAGE SECURITIES
CORP., a Delaware corporation (the "Depositor"), U.S. BANK NATIONAL
ASSOCIATION ("U.S. Bank"), as trustee (in such capacity, the "Trustee") and as
a custodian, XXXXX FARGO BANK, N.A. ("Xxxxx Fargo"), as a custodian, DEUTSCHE
BANK NATIONAL TRUST COMPANY ("Deutsche Bank"), as a custodian, JPMORGAN CHASE
BANK, NATIONAL ASSOCIATION ("JPMorgan"), as a custodian, (Xxxxx Fargo,
Deutsche Bank, JPMorgan and U.S. Bank, each a "Custodian" and together the
"Custodians"), as master servicer (in such capacity, the "Master Servicer")
and as securities administrator (in such capacity, the "Securities
Administrator").
W I T N E S S E T H:
- - - - - - - - - -
In consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
[PRELIMINARY STATEMENT]
The Securities Administrator on behalf of the Trust shall elect that
three segregated asset pools within the Trust Fund be treated for federal
income tax purposes as comprising three REMICs (each, a "Trust REMIC" or, in
the alternative, the "Lower-Tier REMIC", the "Upper-Tier REMIC" and the "Class
X REMIC", respectively). The Class X Interest and each Class of Principal
Certificates (other than the right of each Class of Principal Certificates to
receive Basis Risk Carry Forward Amounts), represents ownership of a regular
interest in the Upper-Tier REMIC for purposes of the REMIC Provisions. The
Class R Certificates represent ownership of the sole class of residual
interest in the Upper-Tier REMIC, the Class RC Certificates represent
ownership of the sole class of residual interest in the Lower-Tier REMIC and
the Class RX Certificates represent ownership of the sole class of residual
interest in the Class X REMIC for purposes of the REMIC Provisions. The
Startup Day for each REMIC described herein is the Closing Date. The latest
possible maturity date for each Certificate is the latest date referenced in
Section 2.04. The Class X REMIC shall hold as assets the Class X Interest as
set out below. The Upper-Tier REMIC shall hold as assets the several classes
of uncertificated Lower-Tier Regular Interests, set out below. The Lower-Tier
REMIC shall hold as assets the assets described in the definition of "Trust
Fund" herein (other than the Prepayment Premiums and the Excess Reserve Fund
Account). Each Lower-Tier Regular Interest is hereby designated as a regular
interest in the Lower-Tier REMIC. The Class LT-AV-1, Class LT-AF-2, Class
LT-AF-3, Class LT-AF-4, Class LT-AF-5, Class LT-AF-6, Class LT-AF-7, Class
LT-M-1, Class LT-M-2, Class LT-M-3, Class LT-M-4, Class LT-M-5, Class LT-M-6,
Class LT-B-1, Class LT-B-2, Class LT-B-3 and Class LT-B-4 Interests are hereby
designated the LT-Accretion Directed Classes (the "LT Accretion Directed
Classes"). The Class P Certificates represent beneficial ownership of the
Prepayment Premiums, each Class of Certificates (other that the Class P, Class
X and Residual Certificates) represents beneficial ownership of a regular
interest in the Upper-Tier REMIC and the right to receive Basis Risk Carry
Forward Amounts and the Class X Certificates represent beneficial ownership of
a regular interest in the Class X REMIC and the Excess Reserve Fund Account,
which portions of the Trust Fund shall be treated as a grantor trust.
The Lower-Tier REMIC
Corresponding
Lower-Tier Lower-Tier Upper-Tier
Interest Designation Interest Rate Initial Lower-Tier Principal Amount REMIC Class
--------------------------------------------------------------------------------------------------------------------
Class LT-AV-1 (1) 1/2 initial Class Certificate Balance of AV-1
Corresponding Upper-Tier REMIC Regular Interest
Class LT-AF-2 (1) 1/2 initial Class Certificate Balance of AF-2
Corresponding Upper-Tier REMIC Regular Interest
Class LT-AF-3 (1) 1/2 initial Class Certificate Balance of AF-3
Corresponding Upper-Tier REMIC Regular Interest
Class LT-AF-4 (1) 1/2 initial Class Certificate Balance of AF-4
Corresponding Upper-Tier REMIC Regular Interest
Class LT-AF-5 (1) 1/2 initial Class Certificate Balance of AF-5
Corresponding Upper-Tier REMIC Regular Interest
Class LT-AF-6 (1) 1/2 initial Class Certificate Balance of AF-6
Corresponding Upper-Tier REMIC Regular Interest
Class LT-AF-7 (1) 1/2 initial Class Certificate Balance of AF-7
Corresponding Upper-Tier REMIC Regular Interest
Class LT-M-1 (1) 1/2 initial Class Certificate Balance of M-1
Corresponding Upper-Tier REMIC Regular Interest
Class LT-M-2 (1) 1/2 initial Class Certificate Balance of M-2
Corresponding Upper-Tier REMIC Regular Interest
Class LT-M-3 (1) 1/2 initial Class Certificate Balance of M-3
Corresponding Upper-Tier REMIC Regular Interest
Class LT-M-4 (1) 1/2 initial Class Certificate Balance of M-4
Corresponding Upper-Tier REMIC Regular Interest
Class LT-M-5 (1) 1/2 initial Class Certificate Balance of M-5
Corresponding Upper-Tier REMIC Regular Interest
Class LT-M-6 (1) 1/2 initial Class Certificate Balance of M-6
Corresponding Upper-Tier REMIC Regular Interest
Class LT-B-1 (1) 1/2 initial Class Certificate Balance of B-1
Corresponding Upper-Tier REMIC
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Corresponding
Lower-Tier Lower-Tier Upper-Tier
Interest Designation Interest Rate Initial Lower-Tier Principal Amount REMIC Class
--------------------------------------------------------------------------------------------------------------------
Regular Interest
Class LT-B-2 (1) 1/2 initial Class Certificate Balance of B-2
Corresponding Upper-Tier REMIC Regular Interest
Class LT-B-3 (1) 1/2 initial Class Certificate Balance of B-3
Corresponding Upper-Tier REMIC Regular Interest
Class LT-B-4 (1) 1/2 initial Class Certificate Balance of B-4
Corresponding Upper-Tier REMIC Regular Interest
Class LT-Accrual (1) 1/2 Pool Stated Principal Balance plus 1/2
Overcollateralized Amount
-------------------
(1) The interest rate with respect to any Distribution Date for these
interests is a per annum variable rate equal to the WAC Cap.
(2) For all Distribution Dates, the Lower Tier Principal Amount of these
Lower Tier Regular Interests shall be rounded to eight decimal
places.
The Lower-Tier REMIC shall hold as assets all of the Lower-Tier
REMIC Regular Interests.
On each Distribution Date, 50% of the increase in the
Overcollateralized Amount will be payable as a reduction of the Lower-Tier
Principal Amount of the LT-Accretion Directed Classes (each such Class will be
reduced by an amount equal to 50% of any increase in the Overcollateralized
Amount that is attributable to a reduction in the Class Certificate Balance of
its Corresponding Class) and will be accrued and added to the Lower-Tier
Principal Amount of the Class LT-Accrual Interest. On each Distribution Date,
the increase in the Lower-Tier Principal Amount of the Class LT-Accrual
Interest may not exceed interest accruals for such Distribution Date for the
Class LT-Accrual Interest. In the event that: (i) 50% of the increase in the
Overcollateralized Amount exceeds (ii) interest accruals on the Class
LT-Accrual Interest for such Distribution Date, the excess for such
Distribution Date (accumulated with all such excesses for all prior
Distribution Dates) will be added to any increase in the Overcollateralized
Amount for purposes of determining the amount of interest accrual on the Class
LT-Accrual Interest payable as principal on the LT-Accretion Directed Classes
on the next Distribution Date pursuant to the first sentence of this
paragraph. All payments of scheduled principal and prepayments of principal
generated by the Mortgage Loans shall be allocated (i) 50% to the Class
LT-Accrual Interest and (ii) 50% to the LT-Accretion Directed Classes
(principal payments shall be allocated among such LT-Accretion Directed
Classes in an amount equal to 50% of the principal amounts allocated to their
respective Corresponding Classes), until paid in full. Notwithstanding the
above, principal payments allocated to the Class X Interest that result in the
reduction in the Overcollateralized Amount shall be allocated to the Class
LT-Accrual Interest (until paid in full). Realized Losses shall be applied so
that after all distributions have been made on each Distribution Date (i) the
Lower-Tier Principal Amount of each of the LT-Accretion Directed Classes is
equal to 50% of the Class Certificate Balance of its Corresponding
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Class, and (ii) the Class LT-Accrual Interest, is equal to 50% of the
aggregate Stated Principal Balance of the Mortgage Loans plus 50% of the
Overcollateralized Amount.
In addition to issuing the Lower-Tier Regular Interests, the
Lower-Tier REMIC shall issue the Class LT-R Interest which shall be the sole
class of residual interests in the Lower-Tier REMIC. The Class RC Certificates
will represent ownership of the Class LT-R Interest and will be issued as a
single certificate in a principal amount of $100 and shall have no interest
rate. Amounts received by the Class LT-R Interest shall be deemed paid from
the Lower-Tier REMIC.
The Upper-Tier REMIC
The Upper-Tier REMIC shall issue the following classes of Upper-Tier
Regular Interests, and each such interest, other than the Class UT-R Interest,
is hereby designated as a regular interest in the Upper-Tier REMIC.
Upper-Tier Interest Initial Upper-Tier
Rate and Principal Amount and
Upper-Tier Corresponding Corresponding Class Corresponding Class
Class Designation Class Pass-Through Rate Certificate Balance of Certificates
-----------------------------------------------------------------------------------------------------
Class AV-1 (1) $ Class AV-1(19)
Class AF-2 (2) $ Class AF-2(19)
Class AF-3 (3) $ Class AF-3(19)
Class AF-4 (4) $ Class AF-4(19)
Class AF-5 (5) $ Class AF-5(19)
Class AF-6 (6) $ Class AF-6(19)
Class AF-7 (7) $ Class AF-7(19)
Class M-1 (8) $ Class M-1(19)
Class M-2 (9) $ Class M-2(19)
Class M-3 (10) $ Class M-3(19)
Class M-4 (11) $ Class M-4(19)
Class M-5 (12) $ Class M-5(19)
Class M-6 (13) $ Class M-6(19)
Class B-1 (14) $ Class B-1
Class B-2 (15) $ Class B-2
Class B-3 (16) $ Class B-3
Class B-4 (17) $ Class B-4
Class X (18) (19) Class X(19)
(1) The Class AV-1 Interest will bear interest during each Interest
Accrual Period at a per annum rate equal to (a) on or prior to the
first possible Optional Termination Date, the lesser of (i) LIBOR
plus .07000% and (ii) the WAC Cap.
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(2) The Class AF-2 Interest will bear interest during each Interest
Accrual Period at a per annum rate equal to (a) on or prior to the
first possible Optional Termination Date, the lesser of (i) 5.68695%
and (ii) the WAC Cap.
(3) The Class AF-3 Interest will bear interest during each Interest
Accrual Period at a per annum rate equal to (a) on or prior to the
first possible Optional Termination Date, the lesser of (i) 5.73434%
and (ii) the WAC Cap.
(4) The Class AF-4 Interest will bear interest during each Interest
Accrual Period at a per annum rate equal to (a) on or prior to the
first possible Optional Termination Date, the lesser of (i) 6.12140%
(plus 0.50% after the first Distribution Date on which the Optional
Clean-up Call is exercisable) and (ii) the WAC Cap.
(5) The Class AF-5 Interest will bear interest during each Interest
Accrual Period at a per annum rate equal to (a) on or prior to the
first possible Optional Termination Date, the lesser of (i) 6.24081%
(plus 0.50% after the first Distribution Date on which the Optional
Clean-up Call is exercisable) and (ii) the WAC Cap.
(6) The Class AF-6 Interest will bear interest during each Interest
Accrual Period at a per annum rate equal to (a) on or prior to the
first possible Optional Termination Date, the lesser of (i) 6.00366%
(plus 0.50% after the first Distribution Date on which the Optional
Clean-up Call is exercisable) and (ii) the WAC Cap.
(7) The Class AF-7 Interest will bear interest during each Interest
Accrual Period at a per annum rate equal to (a) on or prior to the
first possible Optional Termination Date, the lesser of (i) 6.06309%
(plus 0.50% after the first Distribution Date on which the Optional
Clean-up Call is exercisable) and (ii) the WAC Cap.
(8) The Class M-1 Interest will bear interest during each Interest
Accrual Period at a per annum rate equal to (a) on or prior to the
first possible Optional Termination Date, the lesser of (i) 6.12395%
(plus 0.50% after the first Distribution Date on which the Optional
Clean-up Call is exercisable) and (ii) the WAC Cap.
(9) The Class M-2 Interest will bear interest during each Interest
Accrual Period at a per annum rate equal to (a) on or prior to the
first possible Optional Termination Date, the lesser of (i) 6.19341%
(plus 0.50% after the first Distribution Date on which the Optional
Clean-up Call is exercisable) and (ii) the WAC Cap.
(10) The Class M-3 Interest will bear interest during each Interest
Accrual Period at a per annum rate equal to (a) on or prior to the
first possible Optional Termination Date, the lesser of (i) 6.24300%
(plus 0.50% after the first Distribution Date on which the Optional
Clean-up Call is exercisable) and (ii) the WAC Cap.
(11) The Class M-4 Interest will bear interest during each Interest
Accrual Period at a per annum rate equal to (a) on or prior to the
first possible Optional Termination Date, the lesser of (i) 6.32237%
(plus 0.50% after the first Distribution Date on which the Optional
Clean-up Call is exercisable) and (ii) the WAC Cap.
5
(12) The Class M-5 Interest will bear interest during each Interest
Accrual Period at a per annum rate equal to (a) on or prior to the
first possible Optional Termination Date, the lesser of (i) 6.42156%
(plus 0.50% after the first Distribution Date on which the Optional
Clean-up Call is exercisable) and (ii) the WAC Cap.
(13) The Class M-6 Interest will bear interest during each Interest
Accrual Period at a per annum rate equal to (a) on or prior to the
first possible Optional Termination Date, the lesser of (i) 6.52071%
(plus 0.50% after the first Distribution Date on which the Optional
Clean-up Call is exercisable) and (ii) the WAC Cap.
(14) The Class B-1 Interest will bear interest during each Interest
Accrual Period at a per annum rate equal to (a) on or prior to the
first possible Optional Termination Date, the lesser of (i) 6.77000%
(plus 0.50% after the first Distribution Date on which the Optional
Clean-up Call is exercisable) and (ii) the WAC Cap.
(15) The Class B-2 Interest will bear interest during each Interest
Accrual Period at a per annum rate equal to (a) on or prior to the
first possible Optional Termination Date, the lesser of (i) 6.77000%
(plus 0.50% after the first Distribution Date on which the Optional
Clean-up Call is exercisable) and (ii) the WAC Cap.
(16) The Class B-3 Interest will bear interest during each Interest
Accrual Period at a per annum rate equal to (a) on or prior to the
first possible Optional Termination Date, the lesser of (i) 6.77000%
(plus 0.50% after the first Distribution Date on which the Optional
Clean-up Call is exercisable) and (ii) the WAC Cap.
(17) The Class B-4 Interest will bear interest during each Interest
Accrual Period at a per annum rate equal to (a) on or prior to the
first possible Optional Termination Date, the lesser of (i) 6.77000%
(plus 0.50% after the first Distribution Date on which the Optional
Clean-up Call is exercisable) and (ii) the WAC Cap.
(18) The Class X Interest will have a principal balance to the extent of
any Overcollateralized Amount. The Class X Interest will not accrue
interest on such balance but will accrue interest on a notional
principal balance. As of any Distribution Date, the Class X Interest
shall have a notional principal balance equal to the aggregate of
the principal balances of the Lower-Tier Regular Interests as of the
first day of the related Interest Accrual Period. With respect to
any Interest Accrual Period, the Class X Interest shall bear
interest at a rate equal to the excess, if any, of the WAC Cap over
the product of (i) 2 and (ii) the weighted average Lower-Tier
Interest Rate of the Lower-Tier Regular Interests, where the
Lower-Tier Interest Rates on the Class LT-Accrual Interests are
subject to a cap equal to zero and each LT-Accretion Directed Class
is subject to a cap equal to the Pass-Through Rate on its
Corresponding Class. With respect to any Distribution Date, interest
that so accrues on the notional principal balance of the Class X
Interest shall be deferred in an amount equal to any increase in the
Overcollateralized Amount on such Distribution Date. Such deferred
interest shall not itself bear interest. The Class X Certificates
will represent beneficial ownership of a regular interest issued by
the Class X REMIC and amounts in the Excess Reserve Fund Account,
subject to the obligation to make payments from the Excess Reserve
Fund Account in respect of Basis Risk Carry Forward Amounts.
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For federal income tax purposes, the Securities Administrator will
treat the Class X Certificateholders' obligation to make payments
from the Excess Reserve Fund Account as payments made pursuant to an
interest rate cap contract written by the Class X Certificateholders
in favor of each Class of Principal Certificates. Such rights of the
Class X Certificateholders and Principal Certificateholders shall be
treated as held in a portion of the Trust Fund that is treated as a
grantor trust under subpart E, Part I of subchapter J of the Code.
(19) Each of these Certificates will represent not only the ownership of
the Corresponding Class of Upper-Tier Regular Interest but also the
right to receive payments from the Excess Reserve Fund Account in
respect of any Basis Risk Carry Forward Amounts. For federal income
tax purposes, the Securities Administrator will treat a
Certificateholder's right to receive payments from the Excess
Reserve Fund Account as payments made pursuant to an interest rate
cap contract written by the Class X Certificateholders.
For federal income tax purposes, any amount distributed on the
Principal Certificates on any such Distribution Date in excess of their Pass
Through Rate shall be treated as having been paid from the Excess Reserve Fund
Account. The Securities Administrator will treat a Principal
Certificateholder's right to receive payments from the Excess Reserve Fund
Account as payments made pursuant to an interest rate cap contract written by
the Class X Certificateholders.
In addition to issuing the Upper-Tier Regular Interests, the
Upper-Tier REMIC shall issue the Class R Certificates, which shall be the sole
class of residual interests in the Upper-Tier REMIC. The Class R Certificates
will be issued as a single certificate in book-entry form in a principal
amount of $100 and shall have no interest rate. Amounts received by the Class
R Certificates shall be deemed paid from the Upper-Tier REMIC.
Class X REMIC
The Class X REMIC shall issue the following classes of interests.
The Class X Certificates shall represent a regular interest in the Class X
REMIC and the Class RX Certificates shall represent the sole class of residual
interest in the Class X REMIC.
Class X REMIC
Class X REMIC Designation Interest Rate Principal Amount
---------------------------------------------------------------------
Class X Certificates (1) (1)
Class RX Certificates (2) (2)
---------------
(1) The Class X Certificates are entitled to 100% of the interest and
principal on the Class X Interest on each Distribution Date.
(2) The Class RX Certificates do not have an interest rate or principal
amount.
The foregoing REMIC structure is intended to cause all of the cash
from the Mortgage Loans to flow through to the Upper-Tier REMIC and the Class
X REMIC as cash flow
7
on a REMIC regular interest, without creating any actual or potential
shortfall (other than for credit losses) to any Trust REMIC regular interest.
It is not intended that the Class R, Class RC or Class RX Certificates be
entitled to any cash flow pursuant to this Agreement except as provided in
Section 4.01(c)(1)(i) hereunder.
For any purpose for which the Pass-Through Rates are calculated, the
interest rate on the Mortgage Loans shall be appropriately adjusted to account
for the difference between the monthly day count convention of the Mortgage
Loans and the monthly day count convention of the regular interests issued by
each of the REMICs. For purposes of calculating the Pass-Through Rates for
each of the interests issued by the Lower-Tier REMIC such rates shall be
adjusted to equal a monthly day count convention based on a 30 day month for
each Due Period and a 360-day year so that the Mortgage Loans and all regular
interests will be using the same monthly day count convention.
The minimum denomination for each Class of the Offered Certificates
will be $50,000 initial Certificate Balance, with integral multiples of $1 in
excess thereof except that one Certificate in each Class may be issued in a
different amount. The minimum denomination for (a) the Class R and Class RC
Certificates will each be $100 and each will be a 100% Percentage Interest in
such Class, (b) the Class RX Certificates will be a 100% Percentage Interest
in such Class and (c) the Class P and Class X Certificates will be a 1%
Percentage Interest in each such Class.
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................... The Class AV-1, Class AF-2, Class AF-3, Class AF-4, Class AF-5, Class AF-6 and
Class AF-7 Certificates, collectively.
Class B Certificates................... The Class B-1, Class B-2, Class B-3 and Class B-4 Certificates, collectively.
Class M Certificates................... The Class M-1, Class M-2, Class M-3, Class M-4, Class M-5 and Class M-6
Certificates, collectively.
Residual Certificates.................. The Class R, Class RC and Class RX Certificates.
ERISA Restricted The Private Certificates and any Certificate with a rating below the lowest
Certificates........................... applicable permitted rating under the Underwriters' Exemption.
LIBOR Certificates..................... The Class AV-1 Certificates.
Principal Certificates................. The Offered Certificates.
8
Fixed Rate Certificates................ The Offered Certificates, other than the Class AV-1 Certificates.
Offered Certificates................... All Classes of Certificates other than the Private Certificates.
Physical Certificates.................. The Class P and Class X Certificates.
Private Certificates................... The Class B-4, Class P and Class X Certificates.
Rating Agencies........................ Xxxxx'x and S&P.
Regular Certificates................... All Classes of Certificates other than the Residual Certificates.
Subordinated Certificates.............. The Class M and Class B Certificates.
9
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Capitalized terms used herein but not
defined herein shall have the meanings given them in the applicable Servicing
Agreement or Sale Agreement. Whenever used in this Agreement, the following
words and phrases, unless the context otherwise requires, shall have the
following meanings:
60+ Day Delinquent Mortgage Loan: Each Mortgage Loan with respect to
which any portion of a Monthly 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.
Account: Any of the Distribution Account, the Master Servicer
Account or the Excess Reserve Fund Account. Each such Account shall be a
separate Eligible Account.
Accrued Certificate Interest Distribution Amount: With respect to
any Distribution Date for each Class of Principal Certificates, the amount of
interest accrued during the related Interest Accrual Period at the applicable
Pass-Through Rate on the related Class Certificate Balance immediately prior
to such Distribution Date, as reduced by such Class's share of Net Prepayment
Interest Shortfalls and Relief Act Interest Shortfalls for the related Due
Period allocated to such Class pursuant to Section 4.02.
Additional Designated Information: As defined in Section 13.02.
Adjusted Net Mortgage Interest Rate: As to each Mortgage Loan and at
any time, the per annum rate equal to the Mortgage Interest Rate less the
Expense Fee Rate.
Administrative Fee Rate: With respect to any Mortgage Loan, the
investment income earned on amounts in the Distribution Account during the
Master Servicer Float Period and paid to the Master Servicer as compensation
for its activities under this Agreement.
Administrative Fees: As to each Mortgage Loan, the fees calculated
by reference to the Administrative Fee Rate.
Advance: Any Monthly Advance or Servicing Advance.
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 Master Servicing and Trust Agreement and all
amendments or supplements hereto.
10
American Home: American Home Mortgage Corp., a New York corporation,
and its successors in interest.
American Home Mortgage Loans: The mortgage loans acquired by the
Purchaser from American Home pursuant to the American Home Sale Agreement.
American Home Servicing: American Home Mortgage Servicing, Inc., a
Maryland corporation, and its successors in interest.
American Home Sale and Servicing Agreement: The Mortgage Loan Sale
and Servicing Agreement, dated as of December 1, 2005, among American Home
Mortgage Corp., American Home Mortgage Servicing, Inc. and Xxxxxxx Xxxxx
Mortgage Company.
Applied Realized Loss Amount: With respect to any Distribution Date,
the amount, if any, by which the aggregate Class Certificate Balance of the
Principal Certificates after distributions of principal on such Distribution
Date exceeds the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date.
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 Trustee.
Assignment Agreement: A Step 1 Assignment Agreement or a Step 2
Assignment Agreement.
Auction Call: As defined in Section 11.01.
Available Funds: With respect to any Distribution Date and the
Mortgage Loans to the extent received by the Master Servicer (x) the sum of
(without duplication): (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 Monthly Advances in respect thereof;
(ii) all Condemnation Proceeds, Insurance Proceeds and Liquidation Proceeds
received during the related Principal 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
(excluding Prepayment Premiums) on the Mortgage Loans received during the
related Principal Prepayment Period together with all Compensating Interest
paid in connection therewith; (iv) all amounts received with respect to such
Distribution Date in connection with a purchase or repurchase of a Deleted
Mortgage Loan; (v) all amounts received with respect to such Distribution Date
as a Substitution Adjustment Amount received in connection with the
substitution of a Mortgage Loan; and (vi) all proceeds received with respect
to the termination of the Trust Fund pursuant to clause (a) of Section 11.01;
reduced by (y) all amounts in reimbursement for Monthly Advances and Servicing
Advances previously made with respect to the Mortgage Loans, and other amounts
as to which the Servicers, the Depositor, the Master Servicer, the Securities
Administrator, the Trustee (or co-trustee) or the Custodians are entitled to
be paid or reimbursed pursuant to this Agreement.
11
Avelo: Avelo Mortgage, L.L.C., a Delaware limited liability company,
and its successors in interest.
Avelo Servicing Agreement: The Flow Servicing Agreement, dated as of
January 1, 2006, between Avelo and Xxxxxxx Sachs Mortgage Company.
Basic Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the aggregate Principal Remittance Amount
for such Distribution Date over (ii) the Excess Overcollateralized Amount, if
any, for such Distribution Date.
Basis Risk Carry Forward Amount: With respect to each Class of
Principal Certificates, as of any Distribution Date, the sum of (A) if on such
Distribution Date the Pass-Through Rate for any Class of Principal
Certificates is based upon the WAC Cap, the excess, if any, of (i) the amount
of interest such Class of Certificates would otherwise be entitled to receive
on such Distribution Date had such Pass-Through Rate not been subject to the
WAC Cap, over (ii) the amount of interest that Class of Certificates received
on such Distribution Date taking into account 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 of the Basis Risk Carry Forward Amounts for
such Distribution Date or (ii) the Class X Distributable Amount (prior to any
reduction for Basis Risk Payments).
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 or California, (b) with respect to a Servicer, the State in which
such 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 Securities
Administrator in substantially the forms attached hereto as exhibits.
Certificate Balance: With respect to any Class of Principal
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, reduced by
any Applied Realized Loss Amounts applicable 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 X and Class P Certificates have no
Certificate Balance.
12
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Book-Entry Certificate.
Certificate Register: The register maintained pursuant to Section
5.02.
Certificateholder or Holder: The person in whose name a Certificate
is registered in the Certificate Register, except that, solely for the purpose
of giving any consent pursuant to this Agreement, any Certificate registered
in the name of the Depositor or any affiliate of the Depositor shall be deemed
not to be Outstanding and the Percentage Interest evidenced thereby shall not
be taken into account in determining whether the requisite amount of
Percentage Interests necessary to effect such consent has been obtained;
provided, however, that if any such Person (including the Depositor) owns 100%
of the Percentage Interests evidenced by a Class of Certificates, such
Certificates shall be deemed to be Outstanding for purposes of any provision
hereof that requires the consent of the Holders of Certificates of a
particular Class as a condition to the taking of any action hereunder. The
Securities Administrator is entitled to rely conclusively on a certification
of the Depositor or any affiliate of the Depositor in determining which
Certificates are registered in the name of an affiliate of the Depositor.
Certification Party: As defined in Section 13.05.
Certifying Person: As defined in Section 13.05.
Class: All Certificates bearing the same class designation as set
forth in this Agreement.
Class 2A Certificates: The Class AF-2, Class AF-3, Class AF-4, Class
AF-5, Class AF-6, Class AF-7 Certificates, collectively.
Class A Certificate Group: Either the Class AV-1 Certificates or
Class 2A Certificates.
Class A Certificates: As specified in the Preliminary Statement.
Class A Principal Allocation Percentage: For any Distribution Date,
the percentage equivalent of a fraction, determined as follows: a fraction,
the numerator of which is the portion of the Principal Remittance Amount for
such Distribution Date that is attributable to the principal received or
advanced on the Mortgage Loans and the denominator of which is the Principal
Remittance Amount for such Distribution Date.
Class A Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the aggregate Class Certificate Balance
of the Class A Certificates immediately prior to such Distribution Date over
(ii) the lesser of (A) 82.50% of the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class AV-1 Certificates: All Certificates bearing the class
designation of "Class AV-1."
13
Class AF-2 Certificates: All Certificates bearing the class
designation of "Class AF-2."
Class AF-3 Certificates: All Certificates bearing the class
designation of "Class AF-3."
Class AF-4 Certificates: All Certificates bearing the class
designation of "Class AF-4."
Class AF-5 Certificates: All Certificates bearing the class
designation of "Class AF-5."
Class AF-6 Certificates: All Certificates bearing the class
designation of "Class AF-6."
Class AF-6 and Class AF-7 Lockout Distribution Amount: With respect
to any Distribution Date, an amount equal to the product of (i) the applicable
Class AF-6 and Class AF-7 Calculation Percentage for that Distribution Date,
(ii) the Class AF-6 and Class AF-7 Lockout Percentage for that Distribution
Date and (iii) the principal allocable to the Class A certificates for that
Distribution Date. In no event shall the Class AF-6 and Class AF-7 Lockout
Distribution Amount exceed the lesser of the aggregate outstanding Class
Certificate Balance for the Class AF-6 and Class AF-7 Certificates or the
Class A Principal Distribution Amount for the applicable Distribution Date.
Class AF-6 and Class AF-7 Lockout Percentage: For any Distribution
Date, the following:
Class AF-6 and Class AF-7 Lockout
Distribution Date (Months) Percentage
-------------------------- ---------------------------------
1 to 36 0%
37 to 60 45%
61 to 72 80%
73 to 84 100%
85 and thereafter 300%
Class AF-7 Certificates: All Certificates bearing the class
designation of "Class AF-7.
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
14
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-5 Principal Distribution Amount on such
Distribution Date) and (H) 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) 94.10% and (y) the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date, and (B) the excess,
if any, of the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date over the Overcollateralization Floor.
Class 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 B-1 Certificates (after taking into account
the distribution of the Class B-1 Principal Distribution Amount on such
Distribution Date) and (I) the Class Certificate Balance of the Class B-2
Certificates immediately prior to that Distribution Date over (ii) the lesser
of (A) the product of (x) 95.10% and (y) the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date and (B) the excess,
if any, of the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date over the Overcollateralization Floor.
Class B-3 Certificates: All Certificates bearing the class
designation of "Class B-3."
15
Class B-3 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the
Class M-2 Principal Distribution Amount on such Distribution Date), (D) the
Class Certificate Balance of the Class M-3 Certificates (after taking into
account the distribution of the Class M-3 Principal Distribution Amount on
such Distribution Date), (E) the Class Certificate Balance of the Class M-4
Certificates (after taking into account the distribution of the Class M-4
Principal Distribution Amount on such Distribution Date), (F) the Class
Certificate Balance of the Class 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 B-1 Certificates (after taking into account
the distribution of the Class B-1 Principal Distribution Amount on such
Distribution Date), (I) the Class Certificate Balance of the Class B-2
Certificates (after taking into account the distribution of the Class B-2
Principal Distribution Amount on such Distribution Date) and (J) the Class
Certificate Balance of the Class B-3 Certificates immediately prior to that
Distribution Date over (ii) the lesser of (A) the product of 96.10% and (y)
the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date and (B) the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class B-4 Certificates: All Certificates bearing the class
designation of "Class B-4."
Class B-4 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the
Class M-2 Principal Distribution Amount on such Distribution Date), (D) the
Class Certificate Balance of the Class M-3 Certificates (after taking into
account the distribution of the Class M-3 Principal Distribution Amount on
such Distribution Date), (E) the Class Certificate Balance of the Class M-4
Certificates (after taking into account the distribution of the Class M-4
Principal Distribution Amount on such Distribution Date), (F) the Class
Certificate Balance of the Class 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 B-1 Certificates (after taking into account
the distribution of the Class B-1 Principal Distribution Amount on such
Distribution Date), (I) the Class Certificate Balance of the Class B-2
Certificates (after taking into account the distribution of the Class B-2
Principal Distribution
16
Amount on such Distribution Date), (J) the Class Certificate Balance of the
Class B-3 Certificates (after taking into account the distribution of the
Class B-2 Principal Distribution Amount on such Distribution Date) and (K) the
Class Certificate Balance of the Class B-4 Certificates immediately prior to
that Distribution Date over (ii) the lesser of (A) the product of 97.40% 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 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: As specified in the Preliminary Statement.
Class M-1 Certificates: All Certificates bearing the class
designation of "Class M-1."
Class M-1 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate 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) 85.20% and (y) the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class M-2 Certificates: All Certificates bearing the class
designation of "Class M-2."
Class M-2 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate 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) 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 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
17
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) 89.30%
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) 90.80% and (y) the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date and (B) the excess,
if any, of the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date over the Overcollateralization Floor.
Class M-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) 92.00% and
(y) the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date and (B) the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
18
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-4 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) 94.10% and (y) the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date and (B) the excess,
if any, of the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date over the Overcollateralization Floor.
Class P Certificates: All Certificates bearing the class designation
of "Class P."
Class R Certificates: All Certificates bearing the class designation
of "Class R."
Class RC Certificates: All Certificates bearing the class
designation of "Class RC."
Class RX Certificates: All Certificates bearing the class
designation of "Class RX."
Class X Certificates: All Certificates bearing the class designation
of "Class X."
Class X Distributable Amount: On any Distribution Date, (i) as a
distribution in respect of interest, the amount of interest that has accrued
on the Class X Interest and not applied as an Extra Principal Distribution
Amount on such Distribution Date, plus any such accrued interest remaining
undistributed from prior Distribution Dates, plus, without duplication, (ii)
as a distribution in respect of principal, any portion of the principal
balance of the Class X Interest which is distributable as an
Overcollateralization Reduction Amount, minus (iii) any amounts paid as a
Basis Risk Payment.
Class X Interest: The Upper-Tier Regular Interest as specified and
described in the Preliminary Statement and the related footnote thereto.
Class X REMIC: As defined in the Preliminary Statement.
Closing Date: April 28, 2006.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
19
Collection Account: The "Custodial Account" as defined in the
applicable Servicing Agreement.
Commission: The U.S. Securities and Exchange Commission.
Compensating Interest: For any Distribution Date and Servicer the
lesser of (a) the Prepayment Interest Shortfall, if any, for the Distribution
Date, with respect to voluntary Principal Prepayments in full or in part by
the Mortgagor (excluding any payments made upon liquidation of the Mortgage
Loan), and (b) its aggregate Servicing Fee received for the related
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.
Corporate Trust Office: With respect to the Securities
Administrator, to the principal office of the Securities Administrator at 4
New York Plaza, 6th Floor, New York, New York 10004, Attention: Worldwide
Securities Servicers Global Debt - GSAA Home Equity Trust 2006-6, or at such
other address as the Securities Administrator may designate from time to time
by notice to the Certificateholders. With respect to the Trustee, to the
principal office of the Trustee at 000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx XX0000,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, Attention: Structured Finance Trust
Services or at such other address as the Trustee may designate from time to
time by notice to the Certificateholders.
Corresponding Class: The Class of interests in one Trust REMIC
created under this Agreement that corresponds to the Class of interests in the
other Trust REMIC or to a Class of Certificates in the manner set out below:
Lower-Tier Upper-Tier Corresponding
Regular Interest Regular Interest Class of Certificates
--------------------------------------------------------------------------------
Class LT-AV-1 Class AV-1 Class AV-1
Class LT-AF-2 Class AF-2 Class AF-2
Class LT-AF-3 Class AF-3 Class AF-3
Class LT-AF-4 Class AF-4 Class AF-4
Class LT-AF-5 Class AF-5 Class AF-5
Class LT-AF-6 Class AF-6 Class AF-6
Class LT-AF-7 Class AF-7 Class AF-7
Class LT-M-1 Class M-1 Class M-1
Class LT-M-2 Class M-2 Class M-2
Class LT-M-3 Class M-3 Class M-3
Class LT-M-4 Class M-4 Class M-4
Class LT-M-5 Class M-5 Class M-5
Class LT-M-6 Class M-6 Class M-6
Class LT-B-1 Class B-1 Class B-1
Class LT-B-2 Class B-2 Class B-2
Class LT-B-3 Class B-3 Class B-3
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Lower-Tier Upper-Tier Corresponding
Regular Interest Regular Interest Class of Certificates
--------------------------------------------------------------------------------
Class LT-B-4 Class B-4 Class B-4
Custodial File: With respect to each Mortgage Loan, any Mortgage
Loan Document which is delivered to the applicable Custodian or which at any
time comes into the possession of that Custodian.
Custodians: JPMorgan, Deutsche Bank, U.S. Bank and Xxxxx Fargo.
Cut-off Date: April 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).
Definitive Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(e).
Deleted Mortgage Loan: A Mortgage Loan which is purchased or
repurchased by any Responsible Party, the Purchaser or the Depositor in
accordance with the terms of any Sale Agreement, any Assignment Agreement or
this Agreement, as applicable, or which is, in the case of a substitution
pursuant to any related Assignment Agreement, replaced or to be replaced with
a substitute mortgage loan.
Denomination: With respect to each Certificate, the amount set forth
on the face thereof as the "Initial Certificate Balance of this Certificate"
or the Percentage Interest appearing on the face thereof.
Depositor: GS Mortgage Securities Corp., a Delaware corporation, and
its successors in interest.
Depository: The initial Depository shall be The Depository Trust
Company, the nominee of which is CEDE & Co., as the registered Holder of the
Book-Entry Certificates. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(a)(5) of the Uniform Commercial Code
of the State of New York.
Depository Institution: Any depository institution or trust company,
including the Trustee and the Securities Administrator, that (a) is
incorporated under the laws of the United States of America or any State
thereof, (b) is subject to supervision and examination by federal or state
banking authorities and (c) has outstanding unsecured commercial paper or
other short-term unsecured debt obligations that are rated "P-1" by Moody's
and "A-1" by Standard & Poor's.
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Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: With respect to each Distribution Date, the
Business Day immediately preceding the Remittance Date, or, with respect to
the Goldman Conduit Mortgage Loans, the 15th calendar day (or if such 15th day
is not a Business Day, the Business Day immediately following such 15th day)
of the month of the related Remittance Date, or, with respect to the PHH
Mortgage Loans, the 16th calendar day (or if such 16th day is not a Business
Day, the immediately preceding Business Day) and with respect to the FNBN
Mortgage Loans serviced by JPMorgan, the close of business on the last day of
the month preceding the month in which such Remittance Date occurs.
Deutsche Bank: Deutsche Bank National Trust Company, a national
banking association, and its successors in interest.
Distribution Account: The separate Eligible Account created by the
Securities Administrator pursuant to Section 3.01(b) in the name of the
Securities Administrator as paying agent for the benefit of the Trustee and
the Certificateholders and designated "JPMorgan Chase Bank, National
Association, as paying agent, in trust for registered holders of GSAA Home
Equity Trust 2006-6, Asset-Backed Certificates, Series 2006-6." Funds in the
Distribution Account shall be held in trust for the Certificateholders for the
uses and purposes set forth in this Agreement.
Distribution Date: The 25th day of each month or, if such day is not
a Business Day, the immediately succeeding Business Day, commencing in April
2006.
Document Certification and Exception Report: The report attached to
Exhibit F hereto.
Due Date: The day of the month on which the Monthly 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 that Distribution Date occurs and ending on the first day of the
calendar month in which that Distribution Date occurs, except, in the case of
the Goldman Conduit Mortgage Loans, the period commencing on the first day of
the month and ending on the last day of the month preceding the month of the
Remittance Date.
XXXXX: The Commission's Electronic Data Gathering, Analysis and
Retrieval system.
Eligible Account: Either (i) an account maintained with a federal or
state chartered depository institution or trust company the short-term
unsecured debt obligations of which (or, in the case of a depository
institution or trust company that is a subsidiary of a holding company, the
short-term unsecured debt obligations of such holding company) are rated
"A-1+" by Standard & Poor's, "F1" by Fitch and "P-1" by Moody's (or a
comparable rating if another Rating Agency is specified by the Depositor by
written notice to the Servicer) at the time any
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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
Securities Administrator or the Trustee.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of Prohibited
Transaction Exemption ("PTE") 2002-41, 67 Fed. Reg. 54487 (2002) (or any
successor thereto), or any substantially similar administrative exemption
granted by the U.S. Department of Labor.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Event of Default: As defined in the applicable Servicing Agreement.
Excess Overcollateralized Amount: With respect to any Distribution
Date, the excess, if any, of (a) the Overcollateralized Amount on such
Distribution Date over (b) the Specified Overcollateralized Amount for such
Distribution Date.
Excess Reserve Fund Account: The separate Eligible Account created
and maintained by the Securities Administrator pursuant to Sections 3.01(a) in
the name of the Securities Administrator as paying agent for the benefit of
the Regular Certificateholders and designated "JPMorgan Chase Bank, National
Association, as paying agent, in trust for registered holders of GSAA Home
Equity Trust 2006-6, Asset-Backed Certificates, Series 2006-6." 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, and
the rules and regulations promulgated thereunder.
Exchange Act Filing Obligation: The obligations of the Master
Servicer under Sections 9.08 and 9.09 with respect to notice and information
to be provided to the Depositor or Article XIII (except Section 13.07).
Exchange Act Reports: Any reports on Form 10-D, Form 8-K and Form
10-K required to be filed by the Depositor with respect to the Trust Fund
under the Exchange Act.
Expense Fee Rate: As to each Mortgage Loan, a per annum rate equal
to the sum of the Servicing Fee Rate, the Administrative Fee Rate and, if set
forth on the Mortgage Loan Schedule, the applicable Primary Mortgage Insurance
Policy premium rate.
Expense Fees: As to each Mortgage Loan, the fees calculated by
reference to the Expense Fee Rate.
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Extra Principal Distribution Amount: As of any Distribution Date,
the lesser of (x) the related Total Monthly Excess Spread for that
Distribution Date and (y) the related Overcollateralization Deficiency for
such Distribution Date.
Fair Market Value Excess: As defined in Section 11.01.
Xxxxxx Xxx: The Federal National Mortgage Association, and its
successors in interest.
Final Scheduled Distribution Date: The Final Scheduled Distribution
Date for each Class of Certificates is the Distribution Date occurring in
March 2036.
Fitch: Fitch, Inc.
Fixed Rate Certificates: As specified in the Preliminary Statement.
Form 10-D Disclosure Item: With respect to any Person, any pending
material litigation or contemplated governmental proceedings against such
Person that would have a material adverse impact on the Certificateholders.
Form 10-K Disclosure Item: With respect to any Person, (a) any
pending material litigation or contemplated governmental proceedings against
such Person that would have a material adverse impact on the
Certificateholders and (b) any affiliations or relationships between such
Person and any Item 1119 Party that would be material to a Certificateholder.
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.
Goldman Conduit: Xxxxxxx Xxxxx Mortgage Conduit Program.
Goldman Conduit Mortgage Loans: The Mortgage Loans acquired by the
Purchaser pursuant to the applicable Goldman Conduit Sale Agreements.
Goldman Conduit Sale Agreements: The Master Loan Purchase
Agreements, between various mortgage loan sellers and Xxxxxxx Xxxxx Mortgage
Company, dated as of their respective dates.
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 any Distribution Date, (i)
with respect to the LIBOR Certificates, the period commencing on the
immediately preceding Distribution Date (or commencing on the Closing Date in
the case of the first Distribution Date) and ending on the day immediately
preceding the current Distribution Date and (ii) with respect to the Fixed
Rate Certificates, the calendar month immediately preceding the month in which
such Distribution Date occurs.
24
Interest Remittance Amount: With respect to any Distribution Date,
that portion of Available Funds attributable to interest relating to the
Mortgage Loans for such Distribution Date.
Investment Account: As defined in Section 3.02(a).
Item 1119 Party: The Depositor, the Master Servicer, the Trustee,
any Servicer, any subservicer, any originator identified in the Prospectus
Supplement.
JPMorgan: JPMorgan Chase Bank, National Association, a national
banking corporation, and its successors in interest.
JPMorgan Servicing Agreement: The Comprehensive Amended and Restated
Servicing Agreement, dated as of September 1, 2005 between Xxxxxxx Xxxxx
Mortgage Company and JPMorgan Chase Bank, National Association.
LIBOR: With respect to any Interest Accrual Period for the LIBOR
Certificates, the rate determined by the Securities Administrator on the
related LIBOR Determination Date on the basis of the offered rate for one
month U.S. dollar deposits as such rate appears on Telerate Page 3750 as of
11:00 a.m. (London time) on such date; provided, that if such rate does not
appear on Telerate Page 3750, the rate for such date will be determined on the
basis of the rates at which one-month U.S. dollar deposits are offered by the
Reference Banks at approximately 11:00 a.m. (London time) on such date to
prime banks in the London interbank market. In such event, the Securities
Administrator shall request the principal London office of each of the
Reference Banks to provide a quotation of its rate. If at least two (2) 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 (2) quotations are provided as requested, the rate
for that date will be the arithmetic mean of the rates quoted by major banks
in New York City, selected by the Securities Administrator (after consultation
with the Depositor), at approximately 11:00 a.m. (New York City time) on such
date for one-month U.S. dollar deposits of leading European banks. The
establishment of LIBOR by the Securities Administrator and the Securities
Administrator's subsequent calculations based thereon, in the absence of
manifest error, shall be final and binding. Except as otherwise set forth
herein, absent manifest error, the Securities Administrator may conclusively
rely on quotations of LIBOR as such quotations appear on Telerate Screen Page
3750.
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, a
defaulted Mortgage Loan (including any REO Property) which was liquidated in
the Principal Prepayment Period preceding the month of such Distribution Date
and as to which the applicable Servicer has certified that it has received all
amounts it expects to receive in connection with the liquidation of such
Mortgage Loan including the final disposition of an REO Property.
25
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or
assignment of such Mortgage Loan, trustee's sale, foreclosure sale or
otherwise, or the sale of the related Mortgaged Property if the Mortgaged
Property is acquired in satisfaction of the Mortgage Loan, including any
Subsequent Recoveries.
London Business Day: Any day on which dealings in deposits of United
States dollars are transacted in the London interbank market.
Lower-Tier Principal Amount: As described in the Preliminary
Statement.
Lower-Tier Regular Interest: As described in the Preliminary
Statement.
Lower-Tier REMIC: As described in the Preliminary Statement.
Majority Class X Certificateholder: The Holder or Holders of a
majority of the Percentage Interests in the Class X Certificates.
Master Servicer: JPMorgan, and if a successor master servicer is
appointed hereunder, such successor.
Master Servicer Event of Default: As defined in Section 9.04.
Master Servicer Remittance Date: With respect to each Distribution
Date, the 25th day of each month or, if such day is not a Business Day, the
immediately succeeding Business Day.
Master Servicing Float Period: As to any Distribution Date and each
Mortgage Loan, the period commencing on the 18th Business Day immediately
preceding such Distribution Date and ending two (2) Business Days prior to
such Distribution Date.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any
successor thereto.
MERS Loan: Any Mortgage Loan registered with MERS on the MERS
System.
MERS System: The system of recording transfers of mortgages
electronically maintained by MERS.
Monthly Advance: As defined in the applicable Servicing Agreement.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Monthly Statement: The statement made available to the
Certificateholders pursuant to Section 4.02.
Moody's: Xxxxx'x Investors Service, Inc. If Xxxxx'x is designated as
a Rating Agency in the Preliminary Statement, for purposes of Section 12.05(b)
the address for notices to
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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 and the
Servicer.
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 a
Sale Agreement and a Servicing Agreement, each Mortgage Loan originally sold
and subject to any Sale Agreement being identified on the Mortgage Loan
Schedule, which Mortgage Loan includes without limitation the Mortgage File,
the Servicing File, the Monthly Payments, Principal Prepayments, Prepayment
Premiums, Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds, REO
Disposition proceeds and all other rights, benefits, proceeds and obligations
arising from or in connection with such Mortgage Loan.
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 (which shall be delivered to the Custodians in an electronic
format acceptable to the Custodians), such schedule setting forth the
following information with respect to each Mortgage Loan: (1) Responsible
Party's Mortgage Loan number; (2) the address, city, state and zip code of the
Mortgaged Property; (3) a code indicating whether the Mortgagor is
self-employed; (4) a code indicating whether the Mortgaged Property is
owner-occupied, investment property or a second home; (5) a code indicating
whether the Mortgaged Property is a single family residence, two family
residence, three-family residence, four family residence, condominium,
manufactured housing or planned unit development; (6) the purpose of the
Mortgage Loan; (7) the type of Mortgage Loan; (8) the Mortgage Interest Rate
at origination; (9) the current Mortgage Interest Rate; (10) the name of the
applicable Servicer; (11) the applicable Servicing Fee Rate; (12) the current
Monthly Payment; (13) the original term to maturity; (14) the remaining term
to maturity; (15) the principal balance of the Mortgage Loan as of the Cut-off
Date after deduction of payments of principal due on or before the Cut-off
Date whether or not collected; (16) the LTV at origination and if the Mortgage
Loan has a second lien, combined LTV at origination; (17) the actual principal
balance of the Mortgage Loan as of the Cut-off Date; (18) social security
number of the Mortgagor; (19) a code indicating whether the Mortgage Loan had
a second lien at origination; (20) if the Mortgage Loan has a second lien,
combined loan balance as of the Cut-off Date; (21) a code indicating whether
the Mortgaged Property is a leasehold estate; (22) the due date of the
Mortgage Loan; (23) whether the Mortgage Loan is insured by a Primary Mortgage
Insurance Policy and the name of the insurer; (24) the certificate number of
the Primary Mortgage Insurance Policy; (25) the amount of coverage of the
Primary Mortgage Insurance Policy, and if it is a lender-paid Primary Mortgage
Insurance Policy, the premium rate;
27
(26) the type of appraisal; (27) a code indicating whether the Mortgage Loan
is a MERS Loan; (28) documentation type (including asset and income type);
(29) first payment date; (30) the schedule of the payment delinquencies in the
prior 12 months; (31) FICO score; (32) the Mortgagor's name; (33) the stated
maturity date; and (34) the original principal amount of the Mortgage Loa;
(35) the name of the applicable Custodian. 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..
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 on a Mortgage Note.
Net Monthly Excess Cash Flow: For any Distribution Date the amount
remaining for distribution pursuant to subsection 4.01(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 on such Distribution Date.
NIM Issuer: The entity established as the issuer of the NIM
Securities.
NIM Securities: Any debt securities secured or otherwise backed by
some or all of the Class P and Class X Certificates.
NIM Trustee: The trustee for the NIM Securities.
Non Permitted Transferee: As defined in Section 8.12(e).
Nonrecoverable Monthly Advance: Any Monthly 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 (in accordance with the
related Servicing Standard set forth in the related Servicing Agreement), the
Master Servicer or any successor Master Servicer including the Trustee, as
applicable, will not or, in the case of a proposed Monthly 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 Advance 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 (in accordance with
the related Servicing Standard set forth in the related Servicing Agreement),
the Master Servicer or any successor Master Servicer including the Trustee, as
applicable, 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.
28
Notice of Final Distribution: The notice to be provided pursuant to
Section 11.02 to the effect that final distribution on any of the Certificates
shall be made only upon presentation and surrender thereof.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate signed by the Chairman of the
Board or the Vice Chairman of the Board or the President or a Vice President
or an Assistant Vice President and by the Treasurer or the Secretary or one of
the Assistant Treasurers or Assistant Secretaries of any Servicer or any
Responsible Party, and delivered to the Trustee and the Securities
Administrator, as required by any Servicing Agreement or Sale Agreement or, in
the case of any other Person, signed by an authorized officer of such Person.
Opinion of Counsel: A written opinion of counsel, who may be in
house counsel for applicable Servicer, reasonably acceptable to the Trustee
and/or the Securities Administrator, as applicable (and/or such other Persons
as may be set forth herein); provided, that any Opinion of Counsel relating to
(a) qualification of any Trust REMIC or (b) compliance with the REMIC
Provisions, must be (unless otherwise stated in such Opinion of Counsel) an
opinion of counsel who (i) is in fact independent of the applicable Servicer
or the Master Servicer of the Mortgage Loans, (ii) does not have any material
direct or indirect financial interest in the applicable Servicer or the Master
Servicer of the Mortgage Loans or in an affiliate of either and (iii) is not
connected with the applicable Servicer or the Master Servicer of the Mortgage
Loans as an officer, employee, director or person performing similar
functions.
Optional Termination Date: The Distribution Date on which the
aggregate Stated Principal Balance of the Mortgage Loans, as of the last day
of the related Due Period, is equal to 10.00% or less of the Cut-off Date Pool
Principal Balance.
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 canceled by the Securities
Administrator or delivered to the Securities Administrator for
cancellation; and
(ii) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Securities
Administrator pursuant to this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with
a Stated Principal Balance greater than zero which was not the subject of a
Principal Prepayment in Full prior to such Due Date and which did not become a
Liquidated Mortgage Loan prior to such Due Date.
Overcollateralized Amount: As of any Distribution Date, the excess,
if any, of (a) the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over (b) the aggregate of the Class Certificate
Balances of the Principal Certificates as of such Distribution Date (after
giving effect to the payment of the Principal Remittance Amount on such
Certificates on such Distribution Date).
29
Overcollateralization Deficiency: With respect to any Distribution
Date, the excess, if any, of (a) the Specified Overcollateralized Amount
applicable to such Distribution Date over (b) the Overcollateralized Amount
applicable to such Distribution Date.
Overcollateralization Floor: With respect to any Distribution Date,
0.50% of the aggregate Stated Principal Balance of the Mortgage Loans as of
the Cut-off Date.
Overcollateralization Reduction Amount: With respect to any
Distribution Date, an amount equal to the lesser of (a) the Excess
Overcollateralized Amount and (b) the Net Monthly Excess Cash Flow.
Ownership Interest: As to any Residual Certificate, any ownership
interest in such Certificate including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect,
legal or beneficial.
Par Value: means an amount equal to the greater of (a) the sum of
(1) 100% of the unpaid principal balance of the Mortgage Loans (other than
Mortgage Loans related to REO Properties), (2) interest accrued and unpaid on
the Mortgage Loans, (3) any xxxxxxxxxxxx X&X Advances, fees and expenses of
the Master Servicer, the Securities Administrator and the Trustee and (4) with
respect to any REO Property, the lesser of (x) the appraised value of each REO
Property, as determined by the higher of two appraisals completed by two
independent appraisers selected by the Master Servicer or its designee, and
(y) the unpaid principal balance of each Mortgage Loan related to any REO
Property, and (b) the sum of (1) the aggregate unpaid Class Certificate
Balance of each class of certificates then outstanding, (2) interest accrued
and unpaid on the certificates and (3) any xxxxxxxxxxxx X&X Advances, fees and
expenses of the Master Servicer, the Securities Administrator and the Trustee.
Pass-Through Rate: For each Class of Certificates and each
Lower-Tier Regular Interest, the per annum rate set forth or calculated in the
manner described in the Preliminary Statement.
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
such percentage interest being set forth on the face thereof or equal to the
percentage obtained by dividing the Denomination of such Certificate by the
aggregate of the Denominations of all Certificates of the same Class.
Performance Certification: As defined in Section 13.05.
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 ninety (90) days
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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 thirty (30) days) denominated in United States dollars and issued by
any Depository Institution and rated F1+ by Fitch, P-1 by Moody's and
A-1+ by S&P;
(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 thirty (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, the Securities Administrator or the Trustee or
an Affiliate thereof, that have been rated "Aaa" by Moody's, "AAAm" or
"AAAm-G" by Standard & Poor's and, if rated by Fitch, at least "AA" by
Fitch; and
(vii) if previously confirmed in writing to the Securities
Administrator, any other demand, money market or time deposit, or any
other obligation, security or investment, as may be acceptable to the
Rating Agencies as a permitted investment of funds backing "Aaa" or "AAA"
rated securities;
provided, however, that no instrument described hereunder shall
evidence either the right to receive (a) only interest with respect to the
obligations underlying such instrument or (b) both principal and interest
payments derived from obligations underlying such instrument and the interest
and principal payments with respect to such instrument provide a yield to
maturity at par greater than 120% of the yield to maturity at par of the
underlying obligations.
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,
31
(vi) an "electing large partnership" within the meaning of Section 775 of the
Code and (vii) any other Person so designated by the Depositor based upon an
Opinion of Counsel that the Transfer of an Ownership Interest in a Residual
Certificate to such Person may cause any Trust REMIC to fail to qualify as a
REMIC at any time that the Certificates are outstanding. The terms "United
States," "State" and "international organization" shall have the meanings set
forth in Section 7701 of the Code or successor provisions. A corporation will
not be treated as an instrumentality of the United States or of any State or
political subdivision thereof for these purposes if all of its activities are
subject to tax and, with the exception of 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 Shortfall: With respect to any Remittance Date,
the sum of, for each Mortgage Loan that was during the related Principal
Prepayment Period the subject of a Principal Prepayment that was applied by
the Servicer to reduce the outstanding principal balance of such Mortgage Loan
on a date preceding the Due Date in the succeeding Principal Prepayment
Period, an amount equal to the product of (a) the Mortgage Interest Rate net
of the applicable Servicing Fee Rate for such Mortgage Loan, (b) the amount of
the Principal Prepayment for such Mortgage Loan, (c) 1/360 and (d) the number
of days commencing on the date on which such Principal Prepayment was applied
and ending on the last day of the related Principal Prepayment Period.
Prepayment Premium: Any prepayment premium, penalty or charge, if
any, required under the terms of the related Mortgage Note to be paid in
connection with a Principal Prepayment, to the extent permitted by law.
Principal Certificates: As specified in the Preliminary Statement.
Principal Distribution Amount: For any Distribution Date, the sum of
(i) the Basic Principal Distribution Amount for such Distribution Date and
(ii) the Extra Principal Distribution Amount for such Distribution Date.
Principal Prepayment: Any full or partial payment or other recovery
of principal on a Mortgage Loan (including upon liquidation of a Mortgage
Loan) which is received in advance of its scheduled Due Date, including any
Prepayment Premium, and which is not accompanied by an amount of interest
representing scheduled interest due on any date or dates in any month or
months subsequent to the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
32
Principal Prepayment Period: With respect to any Distribution Date,
the calendar month preceding the month in which that Distribution Date occurs.
Principal Remittance Amount: With respect to any Distribution Date
and the Mortgage Loans, the amount equal to the sum of the following amounts
(without duplication): (i) all scheduled payments of 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 Monthly Advances in
respect thereof; (ii) all Condemnation Proceeds, Insurance Proceeds and
Liquidation Proceeds allocable to principal and received during the related
Principal Prepayment Period; (iii) all Principal Prepayments allocable to
principal and received during the related Principal Prepayment Period; (iv)
all amounts received with respect to such Distribution Date representing the
portion of the purchase price allocable to principal in connection with a
purchase or repurchase of a Deleted Mortgage Loan; (v) principal portion of
all amounts received with respect to such Distribution Date as a Substitution
Adjustment Amount and received in connection with the substitution of a
Mortgage Loan and (vi) the allocable portion of the proceeds received with
respect to the termination of the Trust Fund pursuant to clause (a) of Section
11.01 (to the extent such proceeds relate to principal).
Private Certificates: As specified in the Preliminary Statement.
Prospectus Supplement: The Prospectus Supplement, dated April 26,
2006, relating to the Offered Certificates.
PTCE: Prohibited Transaction Class Exemption, issued by the U.S.
Department of Labor.
PUD: A planned unit development.
Purchaser: Xxxxxxx Sachs Mortgage Company, a New York limited
partnership, and its successors in interest.
Rating Agency: Each of the Rating Agencies specified in the
Preliminary Statement. If such organization or a successor is no longer in
existence, "Rating Agency" shall be such nationally recognized statistical
rating organization, or other comparable Person, as is designated by the
Depositor, notice of which designation shall be given to the Trustee and the
Securities Administrator. References herein to a given rating or rating
category of a Rating Agency shall mean such rating category without giving
effect to any modifiers. For purposes of Section 12.05(b), the addresses for
notices to each Rating Agency shall be the address specified therefor in the
definition corresponding to the name of such Rating Agency, or such other
address as either such Rating Agency may hereafter furnish to the Depositor
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 any amount of
unreimbursed Servicing Advances with respect to such Liquidated Mortgage Loan.
33
Record Date: With respect to any Distribution Date, the close of
business on the last Business Day of the related Interest Accrual Period;
provided, however, that for any Definitive Certificate issued pursuant to
Section 5.02(e), the Record Date shall be the close of business on the last
Business Day of the month immediately preceding the month in which the related
Distribution Date occurs.
Reference Bank: As defined in Section 4.04.
Regular Certificates: As specified in the Preliminary Statement.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended
from time to time, and subject to such clarification and interpretation as
have been provided by the Commission in the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531
(Jan. 7, 2005)) or by the staff of the Commission, or as may be provided by
the Commission or its staff from time to time.
Relief Act Interest Shortfall: With respect to any Distribution Date
and any Mortgage Loan, any reduction in the amount of interest collectible on
such Mortgage Loan for the most recently ended Due Period as a result of the
application of the Servicemembers' Civil Relief Act of 1940 or any similar
state statutes.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time as well as provisions of applicable state laws.
Remittance Date: With respect to any Distribution Date, the 18th day
(or if such 18th day is not a Business Day, the first Business Day immediately
preceding such 18th day) of the month in which such Distribution Date occurs.
REO Disposition: The final sale by the Servicer of any REO Property.
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: Any event required to be reported on Form 8-K, but
at a minimum will include:
(a) entry into a definitive material agreement related to the Trust
Fund, the Certificates or the Mortgage Loans, or an amendment to a Transaction
Document, only if the Depositor is not a party to such agreement (e.g., a
servicing agreement with a servicer contemplated by Item 1108(a)(3) of
Regulation AB);
34
(b) termination of a Transaction Document (other than by expiration
of the agreement on its stated termination date or as a result of all parties
completing their obligations under such agreement), only if the Depositor is
not a party to such agreement (e.g., a servicing agreement with a servicer
contemplated by Item 1108(a)(3) of Regulation AB);
(c) with respect to any material party related to the Trust Fund,
the commencement of any bankruptcy or receivership with respect to such party;
(d) with respect to the Master Servicer and any Servicer only, the
occurrence of a Trigger Event or an Event of Default under this Agreement;
(e) the resignation, removal, replacement, substitution of the
Trustee, the Securities Administrator, the Master Servicer, any Servicer, any
subservicer or any Custodian;
(f) with respect to the Depositor only, if the Depositor becomes
aware that (i) any material enhancement or support specified in Item
1114(a)(1) through (3) of Regulation AB or Item 1115 of Regulation AB that was
previously applicable regarding one or more classes of the Certificates has
terminated other than by expiration of the contract on its stated termination
date or as a result of all parties completing their obligations under such
agreement; (ii) any material enhancement specified in Item 1114(a)(1) through
(3) of Regulation AB or Item 1115 of Regulation AB has been added with respect
to one or more classes of the Certificates; or (iii) any existing material
enhancement or support specified in Item 1114(a)(1) through (3) of Regulation
AB or Item 1115 of Regulation AB with respect to one or more classes of the
Certificates has been materially amended or modified; and
(g) a required distribution to holders of the Certificates is not
made as of the required distribution date under this Agreement.
Reporting Subcontractor: With respect to the Master Servicer or the
Securities Administrator, any Subcontractor determined by such Person pursuant
to Section 13.08(b) to be "participating in the servicing function" within the
meaning of Item 1122 of Regulation AB. References to a Reporting Subcontractor
shall refer only to the Subcontractor of such Person and shall not refer to
Subcontractors generally.
Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee, the
Securities Administrator or the Master Servicer, any vice president, any
assistant vice president, any assistant secretary, any assistant treasurer,
any associate or any other officer of the Trustee, the Securities
Administrator or the Master Servicer, customarily performing functions similar
to those performed by any of the above designated officers who at such time
shall be officers to whom, with respect to a particular matter, such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration of this Agreement.
Responsible Party: Each of American Home and Xxxxx Fargo, as the
context may require, in its capacity as seller under the related Sale
Agreement. With respect to the Goldman Conduit Mortgage Loans, the Purchaser.
35
Rule 144A: Rule 144A under the Securities Act.
Rule 144A Letter: As defined in Section 5.02(b).
Sale Agreement: Each of the American Home Sale and Servicing
Agreement, the Xxxxx Fargo Sale and Servicing Agreement and the Goldman
Conduit Sale Agreement.
Xxxxxxxx-Xxxxx Certification: As defined in Section 13.05.
Securities Act: The Securities Act of 1933, as amended.
Securities Administrator: JPMorgan, and if a successor securities
administrator is appointed hereunder, such successor.
Securities Administrator Float Period: With respect to the
Distribution Date and the related amounts in the Distribution Account, the
period commencing on the second Business Day immediately preceding such
Distribution Date and ending on such Distribution Date.
Senior Enhancement Percentage: With respect to any Distribution
Date, the percentage obtained by dividing (x) the sum of (i) the aggregate
Class Certificate Balance of the Subordinated Certificates and (ii) the
Overcollateralized Amount (in each case after taking into account the
distributions of the Principal Distribution Amount for such Distribution Date)
by (y) the aggregate Stated Principal Balance of the Mortgage Loans as of the
first day of the month in which such Distribution Date occurs.
Senior Specified Enhancement Percentage: As of any date of
determination, 17.50%.
Servicer: Each of Avelo, JPMorgan, Countrywide Servicing and Xxxxx
Fargo, in its capacity as servicer under the related Servicing Agreement, or
any successor servicer appointed pursuant to such Servicing Agreement.
Servicing Advances: As defined in the related Servicing Agreement.
Servicing Agreement: Each of the American Home Sale and Servicing
Agreement, Avelo Servicing Agreement, the JPMorgan Servicing Agreement, the
Countrywide Servicing Agreement and the Xxxxx Fargo Sale and Servicing
Agreement.
Servicing Criteria: The "servicing criteria" set forth in Item
1122(d) of Regulation AB.
Servicing Fee: As defined in the related Servicing Agreement.
Servicing Fee Rate: As of the statistical calculation date of March
1, 2006, a per annum rate equal to 0.250% with respect to approximately 99.64%
of the mortgage loans and 0.250% per annum (increasing to 0.375% after the
initial interest rate adjustment date) with respect to approximately 0.36% of
the mortgage loans.
36
Servicing File: As defined in the applicable Servicing Agreement.
Similar Law: As defined in Section 5.02(b).
Specified Overcollateralized Amount: Prior to the Stepdown Date, an
amount equal to 1.30% of the Cut-off Date Pool Principal Balance. On and after
the Stepdown Date, an amount equal to 2.60% of the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date, subject, until the
Class Certificate Balance of each Class of Principal 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 but instead will remain the same as the prior period's
Specified Overcollateralized Amount until the Distribution Date on which a
Trigger Event is no longer occurring. When the Class Certificate Balance of
each Class of Principal Certificates has been reduced to zero, the Specified
Overcollateralized Amount will thereafter be zero.
Standard & Poor's or S&P: Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc. If Standard & Poor's is designated
as a Rating Agency in the Preliminary Statement, for purposes of Section
12.05(b) the address for notices to Standard & Poor's shall be Standard &
Poor's, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Residential
Mortgage Surveillance Group - GSAA Home Equity Trust 2006-6, or such other
address as Standard & Poor's may hereafter furnish to the Depositor and the
Servicer.
Startup Day: The Closing Date.
Stated Principal Balance: As to each Mortgage Loan and as of any
Determination Date, (i) the principal balance of the Mortgage Loan at the
Cut-off Date after giving effect to payments of principal due on or before
such date (whether or not received), minus (ii) all amounts previously
remitted to the Securities Administrator with respect to the related Mortgage
Loan representing payments or recoveries of principal including advances in
respect of scheduled payments of principal. For purposes of any Distribution
Date, the Stated Principal Balance of any Mortgage Loan will give effect to
any scheduled payments of principal received or advanced prior to the related
Remittance Date and any unscheduled principal payments and other unscheduled
principal collections received during the related Principal 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 Principal
Prepayment Period shall be zero.
Step 1 Assignment Agreement: Each of the (i) Assignment, Assumption
and Recognition Agreement, dated as of April 28, 2006, between the Purchaser,
American Home, American Home Servicing and the Depositor, (ii) Assignment,
Assumption and Recognition Agreement, dated as of April 28, 2006, between the
Purchaser, Xxxxx Fargo and the Depositor, (iii) Assignment, Assumption and
Recognition Agreement, dated as of April 28, 2006, between the Purchaser,
Countrywide Servicing and the Depositor, and (iv) Assignment, Assumption and
Recognition Agreement, dated as of April 28, 2006, between the Purchaser,
Avelo and the Depositor.
37
Step 2 Assignment Agreement: Each of the (i) Assignment, Assumption
and Recognition Agreement, dated as of April 28, 2006, among the Depositor,
the Master Servicer, the Trustee, American Home and American Home Servicing,
(ii) Assignment, Assumption and Recognition Agreement, dated as of April 28,
2006, among the Depositor, the Master Servicer, the Trustee and Countrywide
Servicing, (iii) Assignment, Assumption and Recognition Agreement, dated as of
April 28, 2006, among the Depositor, the Master Servicer, the Trustee and
Xxxxx Fargo, and (iv) Assignment, Assumption and Recognition Agreement, dated
as of April 28, 2006, among the Depositor, the Master Servicer, the Trustee
and Avelo,.
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 May
2009 and (ii) the first Distribution Date on which the Senior Enhancement
Percentage is greater than or equal to the Senior Specified Enhancement
Percentage.
Subcontractor: Any vendor, subcontractor or other Person that is not
responsible for the overall servicing (as "servicing" is commonly understood
by participants in the mortgage-backed securities market) of Mortgage Loans
but performs one or more discrete functions identified in Item 1122(d) of
Regulation AB with respect to Mortgage Loans under the direction or authority
of the Master Servicer, any Servicer, any subservicer or the Securities
Administrator, as the case may be.
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.
Substitution Adjustment Amount: With respect to any Sale Agreement,
or with respect to a Mortgage Loan substituted by the Purchaser, an amount of
cash received from the applicable Responsible Party in connection with a
substitution for a Deleted Mortgage Loan.
Tax Matters Person: The Holder of the Class R, Class RC and Class RX
Certificates is designated as "tax matters person" of the Lower-Tier REMIC,
Middle-Tier REMIC and the Upper-Tier REMIC, respectively, in the manner
provided under Treasury Regulations Section 1.806F-4(d) and Treasury
Regulations Section 301.6234(a)(7)-1.
Telerate Page 3750: The display page currently so designated on the
Bridge Telerate Service (or such other page as may replace that page on that
service for displaying comparable rates or prices).
Termination Price: As defined in Section 11.01.
Total Monthly Excess Spread: As to any Distribution Date, an amount
equal to the excess if any, of (i) the interest collected (prior to the
related Remittance Date) or advanced on the Mortgage Loans for Due Dates
during the related Due Period (net of Expense Fees) over (ii) the sum of the
interest payable to the Principal Certificates on such Distribution Date
pursuant to Section 4.01(a)(i).
38
Transaction Documents: This Agreement and any other document or
agreement entered into in connection with the Trust Fund, the Certificates or
the Mortgage Loans.
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)(ii).
Transferor Certificate: As defined in Section 5.02(b).
Trigger Event: With respect to any Distribution Date, a Trigger
Event exists if (i) on such Distribution Date the quotient (expressed as a
percentage) of (x) the rolling three month average of the aggregate unpaid
principal balance of 60+ Day Delinquent Mortgage Loans, and (y) the aggregate
unpaid principal balance of the Mortgage Loans as of the last day of the
related Due Period equals or exceeds 35.00% 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 Principal
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
----------------------------------------------------------------------------------------------------------
May 2008 - April 2009 0.250% for the first month, plus an additional 1/12th of 0.200%
for each month thereafter (e.g., approximately 0.267% in May 2008)
May 2009 - April 2010 0.450% for the first month, plus an additional 1/12th of 0.350%
for each month thereafter (e.g., approximately 0.476% in May 2009)
May 2010 - April 2011 0.800% for the first month, plus an additional 1/12th of 0.250%
for each month thereafter (e.g., approximately 0.821% in May 2010)
May 2011 - April 2012 1.050% for the first month, plus an additional 1/12th of 0.200%
for each month thereafter (e.g., approximately 1.067% in May 2011)
May 2012 and thereafter 1.250%
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
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 rights of the
Trust under the Step 2 Assignment Agreements; and (v) all
39
proceeds of the conversion, voluntary or involuntary, of any of the foregoing.
The Trust Fund created hereunder is referred to as the GSAA Home Equity Trust
2006-6.
Trust REMIC: As specified in the Preliminary Statement.
Trustee: U.S. Bank, and its successors in interest, and, if a
successor trustee is appointed hereunder, such successor.
Underwriters' Exemption: Any exemption listed in footnote 1 of, and
amended by, Prohibited Transaction Exemption 2002-41, 67 Fed. Reg. 54487
(2002), or amended by Prohibited Transaction Exemption 2002-19, 67 Fed. Reg.
14979, or any successor exemption.
Unpaid Interest Amount: As of any Distribution Date and any Class of
Certificates, the sum of (a) the portion of the Accrued Certificate Interest
Distribution Amount from Distribution Dates remaining unpaid prior to the
current Distribution Date and (b) interest on the amount in clause (a) at the
applicable Pass-Through Rate (to the extent permitted by applicable law).
U.S. Bank: U.S. Bank National Association, a national banking
association, and its successors in interest.
U.S. Person: (i) A citizen or resident of the United States; (ii) a
corporation (or entity treated as a corporation for tax purposes) created or
organized in the United States or under the laws of the United States or of
any State thereof, including, for this purpose, the District of Columbia;
(iii) a partnership (or entity treated as a partnership for tax purposes)
organized in the United States or under the laws of the United States or of
any State thereof, including, for this purpose, the District of Columbia
(unless provided otherwise by future Treasury regulations); (iv) an estate
whose income is includible in gross income for United States income tax
purposes regardless of its source; or (v) a trust, if a court within the
United States is able to exercise primary supervision over the administration
of the trust and one or more U.S. Persons have authority to control all
substantial decisions of the trust. Notwithstanding the last clause of the
preceding sentence, to the extent provided in Treasury regulations, certain
trusts in existence on August 20, 1996, and treated as U.S. Persons prior to
such date, may elect to continue to be U.S. Persons.
Upper-Tier Regular Interest: As described in the Preliminary
Statement.
Upper-Tier REMIC: As described in the Preliminary Statement.
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 (such Voting Rights to be allocated among the holders of
Certificates of each such Class in accordance with their respective Percentage
Interests), and (c) the remaining Voting Rights shall be allocated among
Holders of the remaining Classes of Certificates in proportion to the
Certificate Balances of their respective Certificates on such date.
40
WAC Cap: With respect to the Mortgage Loans as of any Distribution
Date, a per annum rate equal to the product of (i) the sum of 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) 30 divided
by the actual number of days in the related Interest Accrual Period, in the
case of the Principal Certificates.
Xxxxx Fargo: Xxxxx Fargo Bank, N.A., a national baking association,
and its successors in interest.
Xxxxx Fargo Mortgage Loans: The mortgage loans acquired by the
Purchaser from Xxxxx Fargo pursuant to the Xxxxx Fargo Sale and Servicing
Agreement.
Xxxxx Fargo Sale and Servicing Agreement: The Master Seller's
Warranties and Servicing Agreement, between GSMC and Xxxxx Fargo, dated as of
August 1, 2004, as amended by Amendment No. 1, dated as of April 26, 2005
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01. Conveyance of Mortgage Loans. (a) The Depositor,
concurrently with the execution and delivery hereof, hereby sells, transfers,
assigns, sets over and otherwise conveys to the Trustee for the benefit of the
Certificateholders, without recourse, all the right, title and interest of the
Depositor in and to the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage
Loan, the Depositor has delivered or caused to be delivered to the applicable
Custodian on behalf of the Trustee for the benefit of the Certificateholders
the following documents or instruments with respect to each applicable
Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed without recourse in blank
by the last endorsee, including all intervening endorsements showing a
complete chain of endorsement from the originator to the last endorsee;
(ii) The original Assignment of Mortgage in blank, unless the
Mortgage Loan is a MERS Loan;
(iii) personal endorsement, surety and/or guaranty agreements
executed in connection with all non individual Mortgage Loans
(corporations, partnerships, trusts, estates, etc. (if any);
(iv) the related original Mortgage and evidence of its recording or
a certified copy of the Mortgage with evidence of recording;
(v) originals of any intervening Mortgage assignment or certified
copies in either case necessary to show a complete chain of title from
the original mortgagee to the seller and evidencing recording; provided,
that, except in the case of the Xxxxxxx
41
Conduit Mortgage Loans, the assignment may be in the form of a blanket
assignment or assignments, a copy of which with evidence of recording
shall be acceptable;
(vi) originals of all assumption, modification, consolidation or
extension agreements or certified copies thereof, in either case with
evidence of recording if required to maintain the lien of the mortgage or
if otherwise required, or, if recordation is not required, an original or
copy of the agreement; provided, that, in the case of the Xxxxxxx Conduit
Mortgage Loans, an original with evidence of recording thereon is always
required;
(vii) an original or copy of a title insurance policy or evidence of
title;
(viii) to the extent applicable, an original power of attorney;
(ix) a security agreement, chattel mortgage or equivalent document
executed in connection with the Mortgage, if any; and
(x) with respect to each Mortgage Loan, the complete Custodial File
(as defined below) including all items as set forth in the applicable
Servicing Agreement to the extent in the possession of the Depositor or
the Depositor's Agents.
The Depositor shall deliver to each Custodian the applicable
recorded document promptly upon receipt from the respective recording office
but in no event later than 120 days from the Closing Date.
From time to time, pursuant to the applicable Sale Agreement, the
Responsible Party may forward to the applicable Custodian additional original
documents, additional documents evidencing an assumption, modification,
consolidation or extension of a Mortgage Loan, in accordance with the terms of
the applicable Sale Agreement. All such mortgage documents held by the
Custodians as to each Mortgage Loan shall constitute the "Custodial File."
On or prior to the Closing Date, the Depositor shall deliver to the
Custodians Assignments of Mortgages (except in the case of MERS Loans), in
blank, for each applicable Mortgage Loan. On the Closing Date, the Trustee
shall provide a written request to each Responsible Party to submit the
Assignments of Mortgage for recordation, at the Responsible Party's expense,
pursuant to the applicable Sale Agreement. Each Custodian shall deliver the
Assignment of Mortgages to be submitted for recordation to the applicable
Responsible Party upon receipt of a written request for release in standard
and customary form as set forth in Exhibit L, X-0, X-0 xx X-0, as applicable.
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 within the time period and in the manner specified in the
applicable Sale Agreement, the Trustee shall take or cause to be taken such
remedial actions under the Sale Agreement against the applicable Responsible
Party as may be permitted to be taken thereunder, including without
limitation, if applicable, the repurchase by the applicable Responsible Party
of such Mortgage Loan. The foregoing repurchase remedy shall not apply in the
event that the Responsible Party cannot
42
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 applicable Responsible Party shall instead deliver a recording receipt of
such recording office or, if such recording receipt is not available, an
officer's certificate of an officer of the applicable Responsible Party,
confirming that such document has been accepted for recording.
Notwithstanding anything to the contrary contained in this Section
2.01, in those instances where the public recording office retains or loses
the original Mortgage or assignment after it has been recorded, the
obligations of the Responsible Party shall be deemed to have been satisfied
upon delivery by the Responsible Party to the applicable Custodian prior to
the Closing Date of a copy of such Mortgage or assignment, as the case may be,
certified (such certification to be an original thereof) by the public
recording office to be a true and complete copy of the recorded original
thereof.
(c) The Depositor does hereby establish, pursuant to the further
provisions of this Agreement and the laws of the State of New York, an express
trust (the "Trust") to be known, for convenience, as "GSAA Home Equity Trust
2006-6" and U.S. Bank National Association is hereby appointed as Trustee in
accordance with the provisions of this Agreement.
(d) It is the policy and intention of the Trust that none of the
Mortgage Loans included in the Trust is (a) covered by the Home Ownership and
Equity Protection Act of 1994, or (b) considered a "high cost home,"
"threshold," "predatory" or "covered" loan (excluding "covered home loans" as
defined under clause (1) of the definition of "covered home loans" in the New
Jersey Home Ownership Security Act of 2002) under applicable state, federal or
local laws.
Section 2.02. Acceptance by the Custodians of the Mortgage Loans.
Each Custodian acknowledges receipt of the documents identified in the Initial
Certification, subject to any exceptions listed on the exception report
attached thereto, in the form annexed hereto as Exhibit E, and declares that
it holds and will hold such documents and the other documents delivered to it
pursuant to Section 2.01, and that it holds or will hold such other assets as
are included in the Trust Fund, in trust for the exclusive use and benefit of
all present and future Certificateholders. Deutsche Bank, as Custodian,
acknowledges that it will maintain possession of the related Mortgage Notes in
the State of California, JPMorgan, as Custodian, acknowledges that it will
maintain possession of the related Mortgage Notes in the State of Texas, U.S.
Bank, as Custodian, acknowledges that it will maintain possession of the
related Mortgage Notes in the State of Minnesota and Xxxxx Fargo, as
Custodian, acknowledges that it will maintain possession of the related
Mortgage Notes in the State of Minnesota, unless otherwise permitted by the
Rating Agencies.
Prior to and as a condition to the Closing, each Custodian shall
deliver via facsimile (with original to follow the next Business Day) to the
Depositor 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, subject to any exceptions listed on the
exception report attached thereto, for each Mortgage Loan. None of the
Custodians shall be responsible for verifying the validity, sufficiency or
genuineness of any document in any Custodial File.
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On the Closing Date, each Custodian shall ascertain that all
documents required to be delivered to it are in its possession, subject to any
exceptions listed on the exception report attached thereto, and shall deliver
to the Depositor and the Trustee an Initial Certification, in the form annexed
hereto as Exhibit E, and shall deliver to the Depositor and the Trustee a
Document Certification and Exception Report, in the form annexed hereto as
Exhibit F, within ninety (90) days after the Closing Date to the effect that,
as to each applicable 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 delivered to 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, as to Deutsche Bank, the information
set forth in items 2, 8, 33, and 34 of the Mortgage Loan Schedule respecting
such Mortgage Loan is correct; (iv) based on its examination and only as to
the foregoing documents, as to JPMorgan, the information set forth in items 2,
8, 33, and 34 of the Mortgage Loan Schedule respecting such Mortgage Loan is
correct; (v) based on its examination and only as to the foregoing documents,
as to U.S. Bank, the information set forth in items 2, 8, 33, and 34 of the
Mortgage Loan Schedule respecting such Mortgage Loan is correct; and (vi) each
Mortgage Note has been endorsed as provided in Section 2.01 of this Agreement.
None of the Custodians shall be responsible for verifying the validity,
sufficiency or genuineness of any document in any Custodial File.
Each Custodian shall retain possession and custody of each
applicable Custodial File in accordance with and subject to the terms and
conditions set forth herein. The Servicer shall promptly deliver to the
applicable Custodian, upon the execution or receipt thereof, the originals of
such other documents or instruments constituting the Custodial File as come
into the possession of the Servicer from time to time.
Each Custodian shall notify the Trustee of any Mortgage Loans that
do not conform to the requirements of Sections 2.01 and 2.02 hereof. The
Trustee shall enforce the obligation of the Responsible Parties to cure or
repurchase Mortgage Loans that do not conform to such requirements as
determined in the applicable Custodian's review as required herein, or based
upon notification from JPMorgan, by notifying the applicable Responsible Party
to correct or cure such default. The Trustee shall also enforce the obligation
of the Responsible Parties under the Sale Agreements and the Servicing
Agreements and of the Purchaser under the Step 1 Assignment Agreements to cure
or repurchase Mortgage Loans for which there is a defect or a breach of a
representation or warranty thereunder of which a Responsible Officer of the
Trustee has actual knowledge, by notifying the applicable party to correct or
cure such default. If any Servicer, any Responsible Party or the Purchaser, as
the case may be, fails or is unable to correct or cure the defect or breach
within the period set forth in the applicable agreement, the Trustee shall
notify the Depositor of such failure to correct or cure. Unless otherwise
directed by the Depositor within five (5) Business Days after notifying the
Depositor of such failure by the applicable party to correct or cure, the
Trustee shall notify such party to repurchase the Mortgage Loan. If, within
ten (10) Business Days of receipt of such notice by such party, such party
fails to repurchase such Mortgage Loan, the Trustee shall notify the Depositor
of such failure. The Trustee shall pursue all legal remedies available to the
Trustee against the Servicers, the Responsible Parties and the Purchaser, as
applicable, under this Agreement, if the Trustee has received written notice
from the Depositor directing the Trustee to pursue such remedies.
44
Section 2.03. Execution and Delivery of Certificates. The Trustee
acknowledges the transfer and assignment to it of the Trust Fund and,
concurrently with such transfer and assignment, the Securities Administrator
has executed and delivered to or upon the order of the Depositor, the
Certificates in authorized denominations evidencing directly or indirectly the
entire ownership of the Trust Fund. The Trustee agrees to hold the Trust Fund
and exercise the rights referred to above for the benefit of all present and
future Holders of the Certificates.
Section 2.04. REMIC Matters. The Preliminary Statement sets forth
the designations for federal income tax purposes of all interests created
hereby. The "Startup Day" for purposes of the REMIC Provisions shall be the
Closing Date. The "latest possible maturity date" is March 25, 2036, which is
the Distribution Date following the latest Mortgage Loan maturity date.
Amounts paid to the Class X Certificates (prior to any reduction for any Basis
Risk Payment) shall be deemed paid from the Upper-Tier REMIC to the Class X
REMIC in respect of the Class X Interest and from the Class X REMIC to the
holders of the Class X Certificates prior to distribution of Basis Risk
Payments to the Principal Certificates.
Amounts distributable to the Class X Certificates shall be deemed
paid from the Master REMIC to the Holders of the Class X Certificates prior to
distribution of any Basis Risk Payments to the Principal Certificates.
For federal income tax purposes, any amount distributed on the
Principal Certificates on any such Distribution Date in excess of their Pass
Through Rate, shall be treated as having been paid from the Excess Reserve
Fund Account.
Section 2.05. Representations and Warranties of the Depositor. The
Depositor hereby represents, warrants and covenants to the Trustee that as of
the date of this Agreement or as of such date specifically provided herein:
(a) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware;
(b) The Depositor has the corporate power and authority to convey
the Mortgage Loans and to execute, deliver and perform, and to enter into and
consummate the transactions contemplated by, this Agreement;
(c) This Agreement has been duly and validly authorized, executed
and delivered by the Depositor, all requisite corporate action having been
taken, and, assuming the due authorization, execution and delivery hereof by
the other parties hereto, constitutes or will constitute the legal, valid and
binding agreement of the Depositor, enforceable against the Depositor in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights of creditors generally, and by general
equity principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law);
(d) No consent, approval, authorization or order of or registration
or filing with, or notice to, any governmental authority or court is required
for the execution, delivery and performance of or compliance by the Depositor
with this Agreement or the consummation by the
45
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) any
term, condition or provision of any material indenture, deed of trust,
contract or other agreement or instrument to which the Depositor or any of its
subsidiaries is a party or by which it or any of its subsidiaries is bound;
(ii) results or will result in a violation of any law, rule, regulation,
order, judgment or decree applicable to the Depositor of any court or
governmental authority having jurisdiction over the Depositor or its
subsidiaries; or (iii) results in the creation or imposition of any lien,
charge or encumbrance which would have a material adverse effect upon the
Mortgage Loans or any documents or instruments evidencing or securing the
Mortgage Loans;
(f) There are no actions, suits or proceedings before or against or
investigations of, the Depositor pending, or to the knowledge of the
Depositor, threatened, before any court, administrative agency or other
tribunal, and no notice of any such action, which, in the Depositor's
reasonable judgment, might materially and adversely affect the performance by
the Depositor of its obligations under this Agreement, or the validity or
enforceability of this Agreement;
(g) The Depositor is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency that may materially and adversely affect its
performance hereunder; and
(h) Immediately prior to the transfer and assignment by the
Depositor to the Trustee on the Closing Date, the Depositor had good title to,
and was the sole owner of each Mortgage Loan, free of any interest of any
other Person, and the Depositor has transferred all right, title and interest
in each Mortgage Loan to the Trustee. The transfer of each Mortgage Note and
each Mortgage as and in the manner contemplated by this Agreement is
sufficient either (i) fully to transfer to the Trustee, for the benefit of the
Certificateholders, all right, title, and interest of the Depositor thereto as
note holder and mortgagee or (ii) to grant to the Trustee, for the benefit of
the Certificateholders, the security interest referred to in Section 12.04
hereof.
It is understood and agreed that the representations, warranties and
covenants set forth in this Section 2.05 shall survive delivery of the
respective Custodial Files to the Custodians, and shall inure to the benefit
and to Certificateholders.
Section 2.06. Representations and Warranties of JPMorgan. JPMorgan,
as Custodian, hereby represents and warrants to the Depositor, the Master
Servicer and the Trustee, as of the Closing Date:
(a) Such Custodian is duly organized and is validly existing and in
good standing under the laws of its jurisdiction of incorporation and is duly
authorized and qualified to transact any and all business contemplated by this
Agreement to be conducted by such Custodian
46
or is otherwise not required under applicable law to effect such qualification
and, in any event, is in compliance with the doing business laws of any such
state, to the extent necessary to perform any of its obligations under this
Agreement in accordance with the terms thereof.
(b) Such Custodian has the full power and authority to execute,
deliver and perform, and to enter into and consummate the transactions
contemplated by this Agreement and has duly authorized by all necessary action
on the part of such Custodian the execution, delivery and performance of this
Agreement; and this Agreement, assuming the due authorization, execution and
delivery thereof by the other parties thereto, constitutes a legal, valid and
binding obligation of such Custodian, enforceable against such Custodian in
accordance with its terms, except that (i) the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, receivership and other similar
laws relating to creditors' rights generally and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(c) The execution and delivery of this Agreement by such Custodian,
the consummation of any other of the transactions contemplated by this
Agreement, and the fulfillment of or compliance with the terms thereof are in
the ordinary course of business of such Custodian and will not result in a
material breach of any term or provision of the articles of incorporation or
by laws of such Custodian.
Section 2.07. Representations and Warranties of Deutsche Bank.
Deutsche Bank hereby represents and warrants to the Depositor, the Master
Servicer and the Trustee, as of the Closing Date:
(a) Such Custodian is duly organized and is validly existing and in
good standing under the laws of its jurisdiction of incorporation and is duly
authorized and qualified to transact any and all business contemplated by this
Agreement to be conducted by such Custodian or is otherwise not required under
applicable law to effect such qualification and, in any event, is in
compliance with the doing business laws of any such state, to the extent
necessary to perform any of its obligations under this Agreement in accordance
with the terms thereof.
(b) Such Custodian has the full power and authority to execute,
deliver and perform, and to enter into and consummate the transactions
contemplated by this Agreement and has duly authorized by all necessary action
on the part of such Custodian the execution, delivery and performance of this
Agreement; and this Agreement, assuming the due authorization, execution and
delivery thereof by the other parties thereto, constitutes a legal, valid and
binding obligation of such Custodian, enforceable against such Custodian in
accordance with its terms, except that (i) the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, receivership and other similar
laws relating to creditors' rights generally and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(c) The execution and delivery of this Agreement by such Custodian,
the consummation of any other of the transactions contemplated by this
Agreement, and the
47
fulfillment of or compliance with the terms thereof are in the ordinary course
of business of such Custodian and will not result in a material breach of any
term or provision of the articles of incorporation or by laws of such
Custodian.
Section 2.08. Representations and Warranties of U.S. Bank. U.S. Bank
hereby represents and warrants to the Depositor, the Master Servicer and the
Trustee, as of the Closing Date:
(a) Such Custodian is duly organized and is validly existing and in
good standing under the laws of its jurisdiction of incorporation and is duly
authorized and qualified to transact any and all business contemplated by this
Agreement to be conducted by such Custodian or is otherwise not required under
applicable law to effect such qualification and, in any event, is in
compliance with the doing business laws of any such state, to the extent
necessary to perform any of its obligations under this Agreement in accordance
with the terms thereof.
(b) Such Custodian has the full power and authority to execute,
deliver and perform, and to enter into and consummate the transactions
contemplated by this Agreement and has duly authorized by all necessary action
on the part of such Custodian the execution, delivery and performance of this
Agreement; and this Agreement, assuming the due authorization, execution and
delivery thereof by the other parties thereto, constitutes a legal, valid and
binding obligation of such Custodian, enforceable against such Custodian in
accordance with its terms, except that (i) the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, receivership and other similar
laws relating to creditors' rights generally and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(c) The execution and delivery of this Agreement by such Custodian,
the consummation of any other of the transactions contemplated by this
Agreement, and the fulfillment of or compliance with the terms thereof are in
the ordinary course of business of such Custodian and will not result in a
material breach of any term or provision of the articles of incorporation or
by laws of such Custodian.
Section 2.09. Representations and Warranties of Xxxxx Fargo. Xxxxx
Fargo, in its capacity as a Custodian, hereby represents and warrants to the
Depositor, the Master Servicer and the Trustee, as of the Closing Date:
(a) Such Custodian is duly organized and is validly existing and in
good standing under the laws of its jurisdiction of incorporation and is duly
authorized and qualified to transact any and all business contemplated by this
Agreement to be conducted by such Custodian or is otherwise not required under
applicable law to effect such qualification and, in any event, is in
compliance with the doing business laws of any such state, to the extent
necessary to perform any of its obligations under this Agreement in accordance
with the terms thereof.
(b) Such Custodian has the full power and authority to execute,
deliver and perform, and to enter into and consummate the transactions
contemplated by this Agreement and has duly authorized by all necessary action
on the part of such Custodian the execution, delivery
48
and performance of this Agreement; and this Agreement, assuming the due
authorization, execution and delivery thereof by the other parties thereto,
constitutes a legal, valid and binding obligation of such Custodian,
enforceable against such Custodian in accordance with its terms, except that
(i) the enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to creditors' rights
generally and (ii) the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought.
(c) The execution and delivery of this Agreement by such Custodian,
the consummation of any other of the transactions contemplated by this
Agreement, and the fulfillment of or compliance with the terms thereof are in
the ordinary course of business of such Custodian and will not result in a
material breach of any term or provision of the articles of incorporation or
by laws of such Custodian.
ARTICLE III
TRUST ACCOUNTS
Section 3.01. Excess Reserve Fund Account; Distribution Account. (a)
The Securities Administrator shall establish and maintain the Excess Reserve
Fund Account to receive any Basis Risk Payment and to secure their limited
recourse obligation to pay to the Principal Certificateholders any Basis Risk
Carry Forward Amounts. On each Distribution Date, the Securities Administrator
shall deposit the amount of any Basis Risk Payment received by it for such
date into the Excess Reserve Fund Account. For the avoidance of doubt, any
Basis Risk Carry Forward Amounts shall be paid to the Principal Certificates
from the Excess Reserve Fund Account.
On each Distribution Date on which there exists a Basis Risk Carry
Forward Amount on any Class or Classes of Principal Certificates, the
Securities Administrator shall (1) withdraw from the Distribution Account, to
the extent of funds available therefor in the Distribution Account, and
deposit in the Excess Reserve Fund Account, as set forth in Section
4.01(a)(iii)(L), the lesser of (x) the Class X Distributable Amount (without
regard to the reduction in clause (iii) of the definition thereof with respect
to Basis Risk Payments) (to the extent remaining after the distributions
specified in Sections 4.01(a)(iii)(A)-(K)) and (y) the aggregate Basis Risk
Carry Forward Amount of the Principal Certificates for such Distribution Date
and (2) withdraw from the Excess Reserve Fund Account amounts necessary to pay
to such Class or Classes of Certificates the related Basis Risk Carry Forward
Amount. Such payments shall be allocated to those Classes based upon the
amount of Basis Risk Carry Forward Amount owed to each such Class and shall be
paid in the priority set forth in Section 4.01(a)(iii)(L).
The Securities Administrator shall account for the Excess Reserve
Fund Account as an asset of a grantor trust under subpart E, Part I of
subchapter J of the Code and not as an asset of any Trust REMIC created
pursuant to this Agreement. The beneficial owners of the Excess Reserve Fund
Account are the Class X Certificateholders. For all federal income tax
purposes, amounts transferred to the Excess Reserve Fund Account shall be
treated as
49
distributions by the Securities Administrator from the Class X REMIC to the
Class X Certificates and then contributed by the Class X Certificateholders to
the Excess Reserve Fund Account.
Any Basis Risk Carry Forward Amounts distributed by the Securities
Administrator to the Principal Certificateholders shall be accounted for by
the Securities Administrator, for federal income tax purposes, as amounts paid
first to the Holders of the Class X Certificates and then to the respective
Class or Classes of Principal Certificates in accordance with the priority of
payments in this Section 3.01. In addition, the Securities Administrator shall
account for the Principal Certificateholders' rights to receive payments of
Basis Risk Carry Forward Amounts as rights in a limited recourse interest rate
cap contract written by the Class X Certificateholders in favor of the Holders
of each such Class.
Notwithstanding any provision contained in this Agreement, the
Securities Administrator shall not be required to make any distributions from
the Excess Reserve Fund Account except as expressly set forth in this Section
3.01(a).
(b) The Master Servicer shall establish and maintain a custodial
account for the benefit of the Trustee (the "Master Servicer Account") which
account shall be an Eligible Account. The amounts remitted by the Servicers to
the Master Servicer on each Remittance Date shall be credited to the Master
Servicer Account within two (2) Business Days once the amounts are identified
as a remittance in connection with the Trust and reconciled to the reports
provided by the Servicer. On the Master Servicer Remittance Date, the Master
Servicer shall remit to the Securities Administrator the amounts received from
the Servicers on the related Remittance Date, net of any fees, expenses and
other amounts payable to the Master Servicer. The Securities Administrator
shall establish and maintain the Distribution Account on behalf of the
Certificateholders. The Securities Administrator shall, promptly upon receipt
on the Business Day received, deposit in the Distribution Account and retain
therein the following:
(i) the aggregate amount remitted by the Master Servicer; and
(ii) any other amounts deposited hereunder which are required to be
deposited in the Distribution Account.
In the event that any Servicer shall remit any amount not required
to be remitted pursuant to the applicable Servicing Agreement, and such
Servicer directs the Master Servicer in writing to withdraw such amount from
the Distribution Account, the Master Servicer shall return such funds to the
applicable Servicer. All funds deposited in the Distribution Account shall be
held by the Securities Administrator in trust for the Certificateholders until
disbursed in accordance with this Agreement or withdrawn in accordance with
Section 4.01.
(c) From time to time, the Securities Administrator may also
establish any other accounts for the purposes of carrying out its duties
hereunder.
Section 3.02. Investment of Funds in the Distribution Account. (a)
The Securities Administrator may (but shall not be obligated to) invest funds
in the Distribution Account during the Securities Administrator Float Period
(for purposes of this Section 3.02, such Account is 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, or maturing on
such Distribution
50
Date. All such Permitted Investments shall be held to maturity, unless payable
on demand. Any investment of funds in an Investment Account shall be made in
the name of the Securities Administrator. The Securities Administrator shall
be entitled to sole possession over each such investment, and any certificate
or other instrument evidencing any such investment shall be delivered directly
to the Securities Administrator or its agent, together with any document of
transfer necessary to transfer title to such investment to the Securities
Administrator. In the event amounts on deposit in an Investment Account are at
any time invested in a Permitted Investment payable on demand, the Securities
Administrator may:
(x) consistent with any notice required to be given
thereunder, demand that payment thereon be made on the
last day such Permitted Investment may otherwise mature
hereunder in an amount equal to the lesser of (1) all
amounts then payable thereunder and (2) the amount
required to be withdrawn on such date; and
(y) demand payment of all amounts due thereunder that such
Permitted Investment would not constitute a Permitted
Investment in respect of funds thereafter on deposit in
the Investment Account.
(b) All income and gain realized from the investment of funds
deposited in the Distribution Account held by the Securities Administrator
during the Securities Administrator Float Period shall be subject to the
Securities Administrator's withdrawal in the manner set forth in Section
10.05.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment,
or if a default occurs in any other performance required under any Permitted
Investment, the Securities Administrator shall take such action as may be
appropriate to enforce such payment or performance, including the institution
and prosecution of appropriate proceedings. Notwithstanding the foregoing, the
Securities Administrator shall be liable to the Trust for any such loss on any
funds it has invested under this Section 3.02 only during the Securities
Administrator Float Period, and the Securities Administrator shall deposit
funds in the amount of such loss in the Distribution Account promptly after
such loss is incurred.
(d) The Securities Administrator or its Affiliates are permitted to
receive additional compensation that could be deemed to be in the Securities
Administrator's economic self-interest for (i) serving as investment adviser,
administrator, shareholder, servicing agent, custodian or sub-custodian with
respect to certain of the Permitted Investments, (ii) using Affiliates to
effect transactions in certain Permitted Investments and (iii) effecting
transactions in certain Permitted Investments. Such compensation is not
payable or reimbursable under Section 8.06 of this Agreement.
(e) In order to comply with its duties under the USA Patriot Act of
2001, the Trustee may obtain and verify certain information and documentation
from the other parties to this Agreement including, but not limited to, each
such party's name, address and other identifying information.
51
(f) 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, Deutsche Bank as a Custodian is required to
obtain, verify and record certain information relating to individuals and
entities which maintain a business relationship with Deutsche Bank.
Accordingly, each of the parties agrees to provide to Deutsche Bank 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.
(g) In order to comply with its duties under the USA Patriot Act of
2001, U.S. Bank, as a Custodian, Xxxxx Fargo, as a Custodian, and JPMorgan
Chase Bank, National Association, as a Custodian shall obtain and verify
certain information and documentation from the other parties to this
Agreement, including, but not limited to, each such party's name, address and
other identifying information in connection with the establishment of any
accounts by it to the extent required by the Agreement.
ARTICLE IV
DISTRIBUTIONS
Section 4.01. Priorities of Distribution. (a) On each Distribution
Date, the Securities Administrator 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:
(b) to the holders of each Class of Principal Certificates in the
following order of priority:
(1) from the Interest Remittance Amount, the related Accrued
Certificate Interest for the Class A certificates, allocated pro rata
based on their entitlement to those amounts;
(2) from any remaining Interest Remittance Amount, the related
unpaid Accrued Certificate Interest for the Class A certificates from
prior Distribution Dates, allocated pro rata based on their entitlement
to those amounts;
(3) from any remaining Interest Remittance Amount, to the Class M-1
certificates, the Accrued Certificate Interest for that class;
(4) from any remaining Interest Remittance Amount, to the Class M-2
certificates, the Accrued Certificate Interest for that class;
(5) from any remaining Interest Remittance Amount, to the Class M-3
certificates, the Accrued Certificate Interest for that class;
(6) from any remaining Interest Remittance Amount, to the Class M-4
certificates, the Accrued Certificate Interest for that class;
52
(7) from any remaining Interest Remittance Amount, to the Class M-5
certificates, the Accrued Certificate Interest for that class;
(8) from any remaining Interest Remittance Amount, to the Class M-6
certificates, the Accrued Certificate Interest for that class;
(9) from any remaining Interest Remittance Amount, to the Class B-1
certificates, the Accrued Certificate Interest for that class;
(10) from any remaining Interest Remittance Amount, to the Class B-2
certificates, the Accrued Certificate Interest for that class;
(11) from any remaining Interest Remittance Amount, to the Class B-3
certificates, the Accrued Certificate Interest for that class; and
(12) from any remaining Interest Remittance Amount, to the Class B-4
certificates, the Accrued Certificate Interest for that class.
(c) (1) on each Distribution Date (x) prior to the Stepdown Date or
(y) with respect to which a Trigger Event is in effect, to the holders of the
class or classes of Principal Certificates and Residual Certificates then
entitled to distributions of principal as set forth below, an amount equal to
the Principal Distribution Amount in the following order or priority:
(i) first, concurrently, on a pro rata basis, to the Class R, Class
RC and Class RX certificates, until their respective Class
Certificate Balances have been reduced to zero;
(ii) sequentially,
(A) concurrently, to the Class AF-6 and Class AF-7
certificates, the Class AF-6 and Class AF-7 Lockout
Distribution Amount, allocated pro rata among these
certificates, until their respective Class Certificate Balances
have been reduced to zero, with the exception that if a
Sequential Trigger Event is in effect, the Class AF-6 and Class
AF-7 Lockout Distribution Amount will be allocated first, to
the Class AF-6 certificates, until its Class Certificate
Balance has been reduced to zero, and then to the Class AF-7
certificates, until its Class Certificate Balance has been
reduced to zero;
(B) sequentially to the Class AV-1, Class AF-2, Class
AF-3, Class AF-4 and Class AF-5 certificates, in that order,
until their respective Class Certificate Balances are reduced
to zero;
(C) concurrently to the Class AF-6 and Class AF-7
certificates, without regard to the Class AF-6 and Class AF-7
Lockout Distribution Amount, allocated pro rata among these
certificates, until their respective certificate principal
balances have been reduced to zero, with the exception that if
a Sequential Trigger Event is in effect, principal
53
distributions to the Class AF-6 and Class AF-7 certificates
will be allocated first to the Class AF-6 certificates, until
its certificate principal balance has been reduced to zero, and
then to the Class AF-7 certificates, until its certificate
principal balance has been reduced to zero;
(iii) the portion of the available Principal Distribution Amount
remaining after making the distributions set forth in clause
(b)(1)(ii) above will be distributed sequentially to the Class X-0,
Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class B-1,
Class B-2, Class B-3 and Class B-4 certificates, in that order,
until their respective Class Certificate Balances are reduced to
zero;
(2) on each Distribution Date (x) on and after the Stepdown Date and
(y) as long as a Trigger Event is not in effect, to the holders of the class
or classes of Principal Certificates then entitled to distribution of
principal as set forth below, an amount equal to the Principal Distribution
Amount in the following order of priority:
(A) to the Class A certificates, the lesser of the
Principal Distribution Amount and the Class A Principal
Distribution Amount, allocated sequentially as follows:
(i) concurrently, to the Class AF-6 and Class AF-7
certificates, the Class AF-6 and Class AF-7 Lockout
Distribution Amount, allocated pro rata among these
certificates, until their respective Class Certificate Balances
have been reduced to zero;
(ii) sequentially to the Class AV-1, Class AF-2, Class
AF-3, Class AF-4 and Class AF-5 certificates, in that order,
until their respective Class Certificate Balances are reduced
to zero;
(iii) concurrently to the Class AF-6 and Class AF-7
certificates, without regard to the Class AF-6 and Class AF-7
Lockout Distribution Amount, allocated pro rata among these
certificates, until their respective certificate principal
balances have been reduced to zero;
(B) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the
Class A certificates in clause (b)(2)(A) above, and (y) the
Class M-1 Principal Distribution Amount, to the Class M-1
certificates, until their Class Certificate Balance is reduced
to zero;
(C) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the
Class A certificates in clause (b)(2)(A) above and to the Class
M-1 certificates in clause (b)(2)(B) above, and (y) the Class
M-2 Principal Distribution Amount, to the Class M-2
certificates, until their Class Certificate Balance is reduced
to zero;
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(D) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the
Class A certificates in clause (b)(2)(A) above, to the Class
M-1 certificates in clause (b)(2)(B) above and to the Class M-2
certificates in clause (b)(2)(C) above, and (y) the Class M-3
Principal Distribution Amount, to the Class M-3 certificates,
until their Class Certificate Balance is reduced to zero;
(E) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the
Class A certificates in clause (b)(2)(A) above, to the Class
M-1 certificates in clause (b)(2)(B) above, to the Class M-2
certificates in clause (b)(2)(C) above and to the Class M-3
certificates in clause (b)(2)(D) above and (y) the Class M-4
Principal Distribution Amount, to the Class M-4 certificates,
until their Class Certificate Balance is reduced to zero;
(F) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the
Class A certificates in clause (b)(2)(A) above, to the Class
M-1 certificates in clause (b)(2)(B) above, to the Class M-2
certificates in clause (b)(2)(C) above, to the Class M-3
certificates in clause (b)(2)(D) above and to the Class M-4
certificates in clause (b)(2)(E) above and (y) the Class M-5
Principal Distribution Amount, to the Class M-5 certificates,
until their Class Certificate Balance is reduced to zero;
(G) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the
Class A certificates in clause (b)(2)(A) above, to the Class
M-1 certificates in clause (b)(2)(B) above, to the Class M-2
certificates in clause (b)(2)(C) above, to the Class M-3
certificates in clause (b)(2)(D) above, to the Class M-4
certificates in clause (b)(2)(E) above and to the Class M-5
certificates in clause (b)(2)(F) above and (y) the Class M-6
Principal Distribution Amount, to the Class M-6 certificates,
until their Class Certificate Balance is reduced to zero;
(H) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the
Class A certificates in clause (b)(2)(A) above, to the Class
M-1 certificates in clause (b)(2)(B) above, to the Class M-2
certificates in clause (b)(2)(C) above, to the Class M-3
certificates in clause (b)(2)(D) above, to the Class M-4
certificates in clause (b)(2)(E) above, to the Class M-5
certificates in clause (b)(2)(F) above and to the Class M-6
certificates in clause (b)(2)(G) above and (y) the Class B-1
Principal Distribution Amount, to the Class B-1 certificates,
until their Class Certificate Balance is reduced to zero;
(I) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the
Class A certificates in clause (b)(2)(A) above, to the Class
M-1 certificates in clause (b)(2)(B) above, to the Class M-2
certificates in clause (b)(2)(C) above, to the Class
55
M-3 certificates in clause (b)(2)(D) above, to the Class M-4
certificates in clause (b)(2)(E) above, to the Class M-5
certificates in clause (b)(2)(F) above, to the Class M-6
certificates in clause (b)(2)(G) above and to the Class B-1
certificates in clause (b)(2)(H) above and (y) the Class B-2
Principal Distribution Amount, to the Class B-2 certificates,
until their Class Certificate Balance is reduced to zero;
(J) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the
Class A certificates in clause (b)(2)(A) above, to the Class
M-1 certificates in clause (b)(2)(B) above, to the Class M-2
certificates in clause (b)(2)(C) above, to the Class M-3
certificates in clause (b)(2)(D) above, to the Class M-4
certificates in clause (b)(2)(E) above, to the Class M-5
certificates in clause (b)(2)(F) above, to the Class M-6
certificates in clause (b)(2)(G) above, to the Class B-1
certificates in clause (b)(2)(H) above and to the Class B-2
certificates in clause (b)(2)(I) above and (y) the Class B-3
Principal Distribution Amount, to the Class B-3 certificates,
until their Class Certificate Balance is reduced to zero; and
(K) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the
Class A certificates in clause (b)(2)(A) above, to the Class
M-1 certificates in clause (b)(2)(B) above, to the Class M-2
certificates in clause (b)(2)(C) above, to the Class M-3
certificates in clause (b)(2)(D) above, to the Class M-4
certificates in clause (b)(2)(E) above, to the Class M-5
certificates in clause (b)(2)(F) above, to the Class M-6
certificates in clause (b)(2)(G) above, to the Class B-1
certificates in clause (b)(2)(H) above, to the Class B-2
certificates in clause (b)(2)(I) above and to the Class B-3
certificates in clause (b)(2)(J) above and (y) the Class B-4
Principal Distribution Amount, to the Class B-4 certificates,
until their Class Certificate Balance is reduced to zero;
(d) any amount remaining after the distributions in clauses (a) and
(b) above is required to be distributed in the following order of priority
with respect to the certificates:
(1) to the holders of the Class M-1 certificates, any Unpaid
Interest Amount for that class;
(2) to the holders of the Class M-2 certificates, any Unpaid
Interest Amount for that class;
(3) to the holders of the Class M-3 certificates, any Unpaid
Interest Amount for that class;
(4) to the holders of the Class M-4 certificates, any Unpaid
Interest Amount for that class;
(5) to the holders of the Class M-5 certificates, any Unpaid
Interest Amount for that class;
56
(6) to the holders of the Class M-6 certificates, any Unpaid
Interest Amount for that class;
(7) to the holders of the Class B-1 certificates, any Unpaid
Interest Amount for that class;
(8) to the holders of the Class B-2 certificates, any Unpaid
Interest Amount for that class;
(9) to the holders of the Class B-3 certificates, any Unpaid
Interest Amount for that class;
(10) to the holders of the Class B-4 certificates, any Unpaid
Interest Amount for that class;
(11) to the Excess Reserve Fund Account, the amount of any Basis
Risk Payment for that Distribution Date;
(12) from funds on deposit in the Excess Reserve Fund Account with
respect to that Distribution Date, an amount equal to any Basis Risk
Carry Forward Amount with respect to the Principal Certificates for that
Distribution Date in the same order and priority in which Accrued
Certificate Interest is allocated among those classes of certificates,
with the allocation to the Class A certificates being pro rata based on
their respective Class Certificate Balances;
(13) to the Class X certificates, those amounts as set forth in the
master servicing and trust agreement; and
(14) to the holders of the Class R, Class RC and Class RX
certificates, any remaining amount as set forth in the master servicing
and trust agreement..
If on any Distribution Date, as a result of the foregoing allocation
rules, any Class of Class A Certificates does 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
those Classes, 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 Principal 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.
(e) On each Distribution Date, all amounts representing Prepayment
Premiums from the Mortgage Loans received during the related Principal
Prepayment Period shall be distributed by the Securities Administrator to the
holders of the Class P Certificates.
(f) If on any Distribution Date, the aggregate Class Certificate
Balance of the Principal Certificates exceeds the sum of the aggregate Stated
Principal Balance of the mortgage loans for that Distribution Date, the Class
Certificate Balance of the applicable Class M-1,
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Class M-2, Class M-3, Class M-4, Class M-5, Class B-1, Class B-2, Class B-3
and Class B-4 certificates will be reduced, in inverse order of seniority
(beginning with the Class B-4 certificates) by an amount equal to that excess,
until that Class Certificate Balance is reduced to zero. That reduction is
referred to as an "Applied Realized Loss Amount." In the event Applied
Realized Loss Amounts are allocated to any of the Class X-0, Xxxxx X-0, Class
M-3, Class M-4, Class M-5, Class B-1, Class B-2, Class B-3 or Class B-4
certificates, their Class Certificate Balance will be reduced by the amount so
allocated, and no funds will be distributable with respect to the written down
amounts or with respect to interest or Basis Risk Carry Forward Amounts 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, if after an Applied Realized Loss Amount is allocated to reduce
the Class Certificate Balance of any class of certificates, amounts are
received with respect to any mortgage loan or related mortgaged property that
had previously been liquidated or otherwise disposed of (any such amount being
referred to as a "Subsequent Recovery"), the Class Certificate Balance of each
class of 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 certificates). Any Subsequent Recovery
that is received during a Prepayment Period will be treated as Liquidation
Proceeds and included as part of the Principal Remittance Amount for the
related Distribution Date.
(g) On any Distribution Date, any shortfalls resulting from the
application of the Servicemembers Civil Relief Act or other similar state
statute and any prepayment interest shortfalls not covered by Compensating
Interest will be allocated first to excess interest on the mortgage loans for
the related Distribution Date and thereafter as a reduction to the Accrued
Certificate Interest for the Principal Certificates on a pro rata basis based
on the respective amounts of interest accrued on those certificates for that
Distribution Date. The holders of the Principal Certificates will not be
entitled to reimbursement for the allocation of any of those shortfalls
described in the preceding sentence.
(h) Upon any exercise of the purchase option set forth in Section
11.01(a), the Securities Administrator shall distribute to the holders of the
Class RC Certificates any amounts required to be distributed on the Class RC
Certificates pursuant to Section 11.02.
Section 4.02. Monthly Statements to Certificateholders. (a) Not
later than each Distribution Date, the Securities Administrator shall make
available to each Certificateholder, the Depositor, the Trustee and each
Rating Agency a statement based, in part, upon the information provided by the
Servicers setting forth with respect to the related distribution:
(i) the amount thereof allocable to principal, separately
identifying the aggregate amount of any Principal Prepayments and
Liquidation Proceeds included therein;
(ii) the amount thereof allocable to interest, any Unpaid Interest
Amount included in such distribution and any remaining Unpaid Interest
Amount 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
58
from the Excess Reserve Fund Account and the Supplemental Interest Trust
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 thereof as between principal
and interest, including any Basis Risk Carry Forward Amount not covered
by amounts in the Excess Reserve Fund Account and the Supplemental
Interest Trust;
(iv) the Class Certificate Balance of each Class of Certificates and
the notional amount of the Class P Certificates after giving effect to
the distribution of principal on such Distribution Date;
(v) the aggregate Stated Principal Balance of the Mortgage Loans for
the following Distribution Date;
(vi) the amount of the expenses and fees paid to or retained by the
Servicer and paid to or retained by the Trustee with respect to such
Distribution Date, in each case, identifying the general purpose of such
fees;
(vii) the amount of the expenses and fees paid to the Master
Servicer or Securities Administrator with respect to such Distribution
Date;
(viii) the Pass-Through Rate for each such Class of Certificates
with respect to such Distribution Date;
(ix) the amount of Advances included in the distribution on such
Distribution Date and the aggregate amount of Advances reported by the
Servicers (and the Master Servicer, the Trustee as successor master
servicer and any other successor master servicer, if applicable) as
outstanding as of the close of business on the Determination Date
immediately preceding such Distribution Date;
(x) the number and aggregate outstanding principal balances of
Mortgage Loans (1) as to which the scheduled payment is delinquent 31 to
60 days, 61 to 90 days and 91 or more 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;
(xi) 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 sixty (60) days or more on each of the Due Dates in each such
month;
(xii) 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
59
the Determination Date preceding such Distribution Date and the date of
acquisition of the REO properties;
(xiii) the total number and principal balance of any REO properties
(and market value, if available) as of the close of business on the
Determination Date preceding such Distribution Date;
(xiv) whether a Trigger Event has occurred and is continuing
(including the calculation demonstrating the existence of the Trigger
Event and the aggregate outstanding balance of all 60+ Day Delinquent
Mortgage Loans);
(xv) the amount on deposit in the Excess Reserve Fund Account (after
giving effect to distributions on such Distribution Date);
(xvi) 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;
(xvii) the amount of any Net Monthly Excess Cash Flow on such
Distribution Date and the allocation thereof to the Certificateholders
with respect to Unpaid Interest Amounts;
(xviii) the Overcollateralized Amount and Specified
Overcollateralized Amount;
(xix) the Prepayment Premiums collected by or paid by the Servicers;
(xx) the percentage equal to the aggregate realized losses divided
by the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off date;
(xxi) the amount distributed on the Class X and Class P
Certificates;
(xxii) the amount of any Subsequent Recoveries for such Distribution
Date;
(xxiii) the Record Date for such Distribution Date;
(xxiv) updated Mortgage Loan information, such as weighted average
interest rate, and weighted average remaining term;
(xxv) material breaches of Mortgage Loan representations of
warranties of which the Trustee, Master Servicer or any Servicer has
knowledge or received written notice; and
(xxvi) material breaches of any covenants under this Agreement of
which the Trustee, Master Servicer or any Servicer has received written
notice.
(b) The Securities Administrator's responsibility for providing the
above statement to the Certificateholders, each Rating Agency, the Trustee and
the Depositor is limited to the availability, timeliness and accuracy of the
information derived from the Master Servicer,
60
the Servicers and the Responsible Parties. The Securities Administrator shall
provide the above statement via the Securities Administrator's internet
website. Assistance in using the website can be obtained by calling the
Securities Administrator's investor relations desk at 0-000-000-0000. The
Securities Administrator will also make a paper copy of the above statement
available upon request.
(c) Upon request, within a reasonable period of time after the end
of each calendar year, the Securities Administrator shall cause to be
furnished to each Person who at any time during the calendar year was a
Certificateholder, a statement containing the information set forth in clauses
(a)(i), (a)(ii), (a)(iii) and (a)(vii) of this Section 4.02 aggregated for
such calendar year or applicable portion thereof during which such Person was
a Certificateholder. Such obligation of the Securities Administrator shall be
deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Securities Administrator pursuant to any
requirements of the Code as from time to time in effect.
The Securities Administrator shall be entitled to rely on
information provided by third parties for purposes of preparing the foregoing
report, but shall not be responsible for the accuracy of such information.
Section 4.03. 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 Certificates, their Class Certificate Balance shall
be reduced by the amount so allocated and no funds shall be distributed with
respect to the written down amounts or with respect to interest or Basis Risk
Carry Forward Amounts on the written down amounts on that Distribution Date or
any future Distribution Dates, even if funds are otherwise available therefor.
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 the order of seniority, by the
amount of the Subsequent Recoveries (but not in excess of the Applied Realized
Loss Amount allocated to the applicable Class of Subordinated Certificates).
Section 4.04. Certain Matters Relating to the Determination of
LIBOR. LIBOR shall be calculated by the Securities Administrator in accordance
with the definition of "LIBOR." Until all of the LIBOR Certificates are paid
in full, the Securities Administrator will at all times retain at least four
Reference Banks for the purpose of determining LIBOR with respect to each
LIBOR Determination Date. The Securities Administrator initially shall
designate the Reference Banks (after consultation with the Depositor). Each
"Reference Bank" shall be a leading bank engaged in transactions in Eurodollar
deposits in the international Eurocurrency market, shall not control, be
controlled by, or be under common control with, the Securities Administrator
and shall have an established place of business in London. If any such
Reference Bank should be unwilling or unable to act as such or if the
Securities Administrator should terminate its appointment as Reference Bank,
the Securities Administrator shall promptly appoint or cause to be appointed
another Reference Bank (after consultation with the Depositor). The Securities
Administrator shall have no liability or responsibility to any Person for (i)
the
61
selection of any Reference Bank for purposes of determining LIBOR or (ii) any
inability to retain at least four Reference Banks which is caused by
circumstances beyond its reasonable control.
The Pass-Through Rate for each Class of LIBOR Certificates for each
Interest Accrual Period shall be determined by the Securities Administrator on
each LIBOR Determination Date so long as the LIBOR Certificates are
outstanding on the basis of LIBOR and the respective formulae appearing in
footnotes corresponding to the LIBOR Certificates in the table relating to the
Certificates in the Preliminary Statement. The Securities Administrator shall
not have any liability or responsibility to any Person for its inability,
following a good faith reasonable effort, to obtain quotations from the
Reference Banks or to determine the arithmetic mean referred to in the
definition of LIBOR, all as provided for in this Section 4.04 and the
definition of LIBOR. The establishment of LIBOR and each Pass-Through Rate for
the LIBOR Certificates by the Securities Administrator shall (in the absence
of manifest error) be final, conclusive and binding upon each Holder of a
Certificate and the Trustee.
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) and aggregate denominations per Class set forth
in the Preliminary Statement.
The Depositor hereby directs the Securities Administrator to
register the Class X and Class P Certificates in the name of the Depositor or
its designee. On a date as to which the Depositor notifies the Securities
Administrator, the Depositor hereby directs the Securities Administrator 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 the
Class X and Class P Certificates to the NIM Trustee, or to such other person
or persons as the Depositor shall request.
Subject to Section 11.02 respecting the final distribution on the
Certificates, on each Distribution Date the Securities Administrator shall
make distributions to each Certificateholder of record on the preceding Record
Date either (x) by wire transfer in immediately available funds to the account
of such holder at a bank or other entity having appropriate facilities
therefor as directed by that Certificateholder by written wire instructions
provided to the Securities Administrator or (y), in the event that no wire
instructions are provided to the Securities Administrator, by check mailed by
first class mail to such Certificateholder at the address of such holder
appearing in the Certificate Register.
The Certificates shall be executed by manual or facsimile signature
on behalf of the Securities Administrator by an authorized officer.
Certificates bearing the manual or facsimile signatures of individuals who
were, at the time such signatures were affixed, authorized to sign on behalf
of the Securities Administrator shall bind the Securities Administrator,
notwithstanding that such individuals or any of them have ceased to be so
62
authorized prior to the authentication and delivery of any such Certificates
or did not hold such office at the date of such Certificate. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, unless authenticated by the Securities Administrator by manual
signature, and such authentication upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly executed
and delivered hereunder. All Certificates shall be dated the date of their
authentication. On the Closing Date, the Securities Administrator shall
authenticate the Certificates to be issued at the direction of the Depositor,
or any affiliate thereof.
Section 5.02. Certificate Register; Registration of Transfer and
Exchange of Certificates. (a) The Securities Administrator shall maintain, or
cause to be maintained in accordance with the provisions of Section 5.06, a
Certificate Register for the Trust Fund in which, subject to the provisions of
subsections (b) and (c) below and to such reasonable regulations as it may
prescribe, the Securities Administrator shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein
provided. Upon surrender for registration of transfer of any Certificate, the
Securities Administrator shall execute and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of the same
Class and aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged
for other Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Securities
Administrator. Whenever any Certificates are so surrendered for exchange, the
Securities Administrator shall execute, authenticate and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive. Every Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer
in form satisfactory to the Securities Administrator duly executed by the
holder thereof or his attorney duly authorized in writing. In the event, the
Depositor or an Affiliate transfers the Class X Certificates, or a portion
thereof, to another Affiliate, it shall notify the Securities Administrator in
writing of the affiliated status of the transferee. The Trustee and the
Securities Administrator shall have no liability regarding the lack of notice
with respect thereto.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or
exchange shall be cancelled and subsequently destroyed by the Securities
Administrator in accordance with the Securities Administrator's customary
procedures.
(b) No transfer of a Private Certificate shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under said Act and such state securities laws.
Except with respect to (i) the initial transfer of the Class X or Class P
Certificates on the Closing Date, (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 to the
63
Depositor or any 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 Securities Administrator
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 Securities Administrator a letter in substantially the
form of Exhibit I (the "Rule 144A Letter") or (ii) there shall be delivered to
the Securities Administrator at the expense of the transferor an Opinion of
Counsel that such transfer may be made without registration under the
Securities Act. In the event that a transfer of a Private Certificate which is
a Book-Entry Certificate is to be made in reliance upon an exemption from the
Securities Act and such laws, in order to assure compliance with the
Securities Act and such laws, the Certificateholder desiring to effect such
transfer will be deemed to have made as of the transfer date each of the
certifications set forth in the Transferor Certificate in respect of such
Certificate and the transferee will be deemed to have made as of the transfer
date each of the certifications set forth in the Rule 144A Letter in respect
of such Certificate, in each case as if such Certificate were evidenced by a
Physical Certificate. 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 Securities
Administrator 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 each Servicer against
any liability that may result if the transfer is not so exempt or is not made
in accordance with such federal and state laws.
Except with respect to (i) the initial transfer of the Class X or
Class P Certificates on the Closing Date, (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 to the Depositor or any Affiliate of
the Depositor, no transfer of an ERISA-Restricted Certificate shall be made
unless the Securities Administrator shall have received either (i) a
representation from the transferee of such Certificate acceptable to and in
form and substance satisfactory to the Securities Administrator (in the event
such Certificate is a Private Certificate or a Residual Certificate, such
requirement is satisfied only by the Securities Administrator's receipt of a
representation letter from the transferee substantially in the form of Exhibit
G), to the effect that such transferee is not an employee benefit plan or
arrangement subject to Section 406 of ERISA, a plan subject to Section 4975 of
the Code or a plan subject to any Federal, state or local law ("Similar Law")
materially similar to the foregoing provisions of ERISA or the Code, nor a
person acting on behalf of any such plan or arrangement nor using the assets
of any such plan or arrangement to effect such transfer (each such investor a
"Plan"), (ii) in the case of an ERISA-Restricted Certificate (other than a
Residual Certificate) that has been the subject of an ERISA-Qualifying
Underwriting, 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
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is defined in Section V(e) of Prohibited Transaction Class Exemption ("PTCE")
95-60) and that the purchase and holding of such Certificates satisfy the
requirements for exemptive relief under Sections I and III of PTCE 95-60 or
(iii) in the case of any ERISA-Restricted 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, the Securities
Administrator and the Depositor, which Opinion of Counsel shall not be an
expense of the Trustee, the Depositor, the Securities Administrator or the
Trust Fund, addressed to the Securities Administrator and the Depositor, 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, the Master Servicer, any other servicer or
the Securities Administrator to any obligation in addition to those expressly
undertaken in this Agreement or to any liability. For purposes of the
preceding sentence, with respect to an ERISA-Restricted Certificate that is
not a Private Certificate or a Residual Certificate, in the event the
representation letter referred to in the preceding sentence is not furnished,
such representation shall be deemed to have been made to the Securities
Administrator by the transferee's (including an initial acquirer's) acceptance
of the ERISA-Restricted Certificates. In the event that such representation is
violated, or any attempt is made to transfer to a plan or arrangement subject
to Section 406 of ERISA, a plan subject to Section 4975 of the Code or a plan
subject to Similar Law, or a person acting on behalf of any such plan or
arrangement or using the assets of any such plan or arrangement, without such
Opinion of Counsel, such attempted transfer or acquisition shall be void and
of no effect.
The Residual Certificates may not be sold to any employee benefit
plan subject to Title I of ERISA, any plan subject to Section 4975 of the
Code, or any plan subject to any Similar Law or any person investing on behalf
of or with plan assets of such plan.
Neither the Securities Administrator nor the Trustee shall have any
duty to monitor transfers of beneficial interests in any Book-Entry
Certificate, and neither the Securities Administrator nor the Trustee shall be
under liability to any Person for any registration of transfer of any ERISA
Restricted Certificate that is in fact not permitted by this Section 5.02(b)
or for making any payments due on such Certificate to the Holder thereof or
taking any other action with respect to such Holder under the provisions of
this Agreement so long as the transfer was registered by the Securities
Administrator in accordance with the foregoing requirements.
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Securities Administrator of any change or impending change in
its status as a Permitted Transferee;
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(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the
Securities Administrator shall not register the Transfer of any Residual
Certificate unless, in addition to the certificates required to be
delivered to the Securities Administrator under subparagraph (b) above,
the Securities Administrator shall have been furnished with an affidavit
(a "Transfer Affidavit") of the initial owner or the proposed transferee
in the form attached hereto as Exhibit I;
(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. Neither the Securities
Administrator nor the Trustee shall have any 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. The Securities Administrator shall be entitled but not
obligated to recover from any Holder of a Residual Certificate that was
in fact not a Permitted Transferee at the time it became a Holder or, at
such subsequent time as it became other than a Permitted Transferee, all
payments made on such Residual Certificate at and after either such time.
Any such payments so recovered by the Securities Administrator shall be
paid and delivered by the Securities Administrator to the last preceding
Permitted Transferee of such Certificate; and
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Securities Administrator, all
information necessary to compute any tax imposed under Section 860E(e) of
the Code as a result of a Transfer of an Ownership Interest in a Residual
Certificate to any Holder who is not a Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in
this Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Securities Administrator of an Opinion of
Counsel, which Opinion of Counsel shall not be an expense of the Trust Fund,
the Trustee, or the Securities Administrator, to the effect that the
elimination of such restrictions will not cause any Trust REMIC to fail to
qualify as a REMIC at any time that the Certificates are outstanding or result
in the imposition of any tax on the Trust Fund, a Certificateholder or
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another Person. Each Person holding or acquiring any Ownership Interest in a
Residual Certificate hereby consents to any amendment of this Agreement which,
based on an Opinion of Counsel furnished to the Securities Administrator, is
reasonably necessary (a) to ensure that the record ownership of, or any
beneficial interest in, a Residual Certificate is not transferred, directly or
indirectly, to a Person that is not a Permitted Transferee and (b) to provide
for a means to compel the Transfer of a Residual Certificate which is held by
a Person that is not a Permitted Transferee to a Holder that is a Permitted
Transferee.
(d) The preparation and delivery of all certificates and opinions
referred to above in this Section 5.02 in connection with transfer shall be at
the expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates shall at
all times remain registered in the name of the Depository or its nominee and
at all times: (i) registration of the Certificates may not be transferred by
the Securities Administrator except to another Depository; (ii) the Depository
shall maintain book entry records with respect to the Certificate Owners and
with respect to ownership and transfers of such Book-Entry Certificates; (iii)
ownership and transfers of registration of the Book-Entry Certificates on the
books of the Depository shall be governed by applicable rules established by
the Depository; (iv) the Depository may collect its usual and customary fees,
charges and expenses from its Depository Participants; (v) the Trustee and the
Securities Administrator shall deal with the Depository, Depository
Participants and indirect participating firms as representatives of the
Certificate Owners of the Book-Entry Certificates for purposes of exercising
the rights of holders under this Agreement, and requests and directions for
and votes of such representatives shall not be deemed to be inconsistent if
they are made with respect to different Certificate Owners; and (vi) the
Securities Administrator may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
indirect participating firms and persons shown on the books of such indirect
participating firms as direct or indirect Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall
be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owner. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
If (x) (i) the Depository or the Depositor advises the Securities
Administrator in writing that the Depository is no longer willing or able to
properly discharge its responsibilities as Depository, and (ii) the Securities
Administrator or the Depositor is unable to locate a qualified successor, or
(y) the Depositor notifies the Depository of its intent to terminate the book
entry system through the Depository, the Depository Participants holding
beneficial interests in the Book-Entry Certificates agree to initiate such
termination, the Securities Administrator shall notify all Certificate Owners,
through the Depository, of the occurrence of any such event and of the
availability of definitive, fully registered Certificates (the "Definitive
Certificates") to Certificate Owners requesting the same. Upon surrender to
the Securities Administrator of the related Class of Certificates by the
Depository, accompanied by the instructions from the Depository for
registration, the Securities Administrator shall issue the
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Definitive Certificates. Neither the Depositor nor the Securities
Administrator shall be liable for any delay in delivery of such instruction
and each may conclusively rely on, and shall be protected in relying on, such
instructions. The Depositor shall provide the Securities Administrator with an
adequate inventory of Certificates to facilitate the issuance and transfer of
Definitive Certificates. Upon the issuance of Definitive Certificates all
references herein to obligations imposed upon or to be performed by the
Depository shall be deemed to be imposed upon and performed by the Securities
Administrator, to the extent applicable with respect to such Definitive
Certificates and the Securities Administrator shall recognize the Holders of
the Definitive Certificates as Certificateholders hereunder; provided, that
the Securities Administrator shall not by virtue of its assumption of such
obligations become liable to any party for any act or failure to act of the
Depository.
(f) Each Private Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer and accompanied by IRS Form W-8ECI, W-8BEN, W-8IMY (and
all appropriate attachments) or W-9 in form satisfactory to the Securities
Administrator, duly executed by the Certificateholder or his attorney duly
authorized in writing. Each Certificate presented or surrendered for
registration of transfer or exchange shall be canceled and subsequently
disposed of by the Securities Administrator in accordance with its customary
practice. No service charge shall be made for any registration of transfer or
exchange of Private Certificates, but the Securities Administrator may require
payment of a sum sufficient to cover any tax or governmental charge that may
be imposed in connection with any transfer or exchange of Private
Certificates.
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates. If
(a) any mutilated Certificate is surrendered to the Securities Administrator,
or the Securities Administrator receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there is delivered to
the Depositor, the Trustee and the Securities Administrator such security or
indemnity as may be required by them to hold each of them harmless, then, in
the absence of notice to the Securities Administrator that such Certificate
has been acquired by a protected purchaser, the Securities Administrator shall
execute, authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
Class, tenor and Percentage Interest. In connection with the issuance of any
new Certificate under this Section 5.03, the Securities Administrator may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Securities Administrator) connected
therewith. Any replacement Certificate issued pursuant to this Section 5.03
shall constitute complete and indefeasible evidence of ownership, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
Section 5.04. Persons Deemed Owners. The Trustee, the Depositor, the
Securities Administrator and any agent of the Depositor, the Securities
Administrator 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 Trustee, the Securities Administrator,
the Depositor or any agent of the Depositor, the Securities Administrator or
the Trustee shall be affected by any notice to the contrary.
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Section 5.05. Access to List of Certificateholders' Names and
Addresses. If three or more Certificateholders (a) request such information in
writing from the Securities Administrator, (b) state that such
Certificateholders desire to communicate with other Certificateholders with
respect to their rights under this Agreement or under the Certificates, and
(c) provide a copy of the communication which such Certificateholders propose
to transmit, or if the Depositor or a Servicer shall request such information
in writing from the Securities Administrator, then the Securities
Administrator shall, within ten (10) Business Days after the receipt of such
request, provide the Depositor, such Servicer or such Certificateholders at
such recipients' expense the most recent list of the Certificateholders of
such Trust Fund held by the Securities Administrator, if any. The Depositor
and every Certificateholder, by receiving and holding a Certificate, agree
that the Securities Administrator shall not be held accountable by reason of
the disclosure of any such information as to the list of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
Section 5.06. Maintenance of Office or Agency. The Securities
Administrator will maintain or cause to be maintained at its expense an office
or agency or agencies where Certificates may be surrendered for registration
of transfer or exchange. The Securities Administrator initially designates its
office for such purposes, located at 0000 Xxxxx Xxxxxx, 0xx Xxxxx, Xxxxxx,
Xxxxx 00000; Attention: Worldwide Securities Services, GSAA 2006-6. The
Securities Administrator will give prompt written notice to the
Certificateholders of any change in such location of any such office or
agency.
ARTICLE VI
THE DEPOSITOR
Section 6.01. Liabilities of the Depositor. The Depositor shall be
liable in accordance herewith only to the extent of the obligations
specifically and respectively imposed upon and undertaken by it herein.
Section 6.02. Merger or Consolidation of the Depositor. The
Depositor will keep in full effect its existence, rights and franchises as a
corporation or federally chartered savings bank, 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 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 may be merged or consolidated,
or any Person resulting from any merger or consolidation to which the
Depositor shall be a party, or any person succeeding to the business of the
Depositor, shall be the successor of the Depositor, 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.
Section 6.03. Limitation on Liability of the Depositor and Others.
Neither the Depositor nor any of its directors, officers, employees or agents
shall be under any liability to the Certificateholders for any action taken or
for refraining from the taking of any action in good
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faith pursuant to this Agreement, or for errors in judgment; provided,
however, that this provision shall not protect the Depositor or any such
Person against any breach of representations or warranties made by it herein
or protect the Depositor or any such Person from any liability which would
otherwise be imposed by reasons of willful misfeasance, bad faith or gross
negligence in the performance of duties or by reason of reckless disregard of
obligations and duties hereunder. The Depositor and any director, officer,
employee or agent of the Depositor 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 and any director, officer,
employee or agent of the Depositor 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, other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or gross negligence in the performance of
duties hereunder or by reason of reckless disregard of obligations and duties
hereunder. The Depositor shall not 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 the Depositor may in its discretion
undertake any such action (or direct the Trustee to undertake such actions 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, the
Depositor shall be entitled to be reimbursed therefor out of the Distribution
Account.
Section 6.04. Servicing Compliance Review. Promptly upon receipt
from each Servicer of its annual statement of compliance and accountant's
report described in the applicable Step 2 Assignment Agreement the Master
Servicer shall furnish a copy thereof to the Depositor. Promptly after the
Depositor's receipt thereof, the Depositor shall review the same and, if
applicable, consult with such Servicer as to the nature of any defaults by
such Servicer in the fulfillment of any of its Servicer's obligations under
the applicable Servicing Agreement.
Section 6.05. Option to Purchase Defaulted Mortgage Loans. The
Depositor shall have the option, but is not obligated, to purchase from the
Trust any Mortgage Loan that is ninety (90) days or more delinquent. The
purchase price therefor shall be 100% of the unpaid principal balance of such
Mortgage Loan, plus all related accrued and unpaid interest, and the amount of
any unreimbursed Servicing Advances made by the Servicers or the Master
Servicer related to the Mortgage Loan.
ARTICLE VII
SERVICER DEFAULT
Section 7.01. Events of Default. If an Event of Default described in
any Servicing Agreement shall occur with respect to the related Servicer then,
and in each and every such case, so long as such Event of Default shall not
have been remedied, the Master Servicer may, or at the direction of
Certificateholders entitled to a majority of the Voting Rights the Master
Servicer shall, by notice in writing to the applicable Servicer (with a copy
to each Rating
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Agency), terminate all of the rights and obligations of such Servicer under
the applicable Servicing Agreement and in and to the Mortgage Loans and the
proceeds thereof. The Holders of Certificates evidencing at least 66% of the
Voting Rights of Certificates affected by a Event of Default may waive such
Event of Default; provided, however, that (a) an Event of Default with respect
to any Servicer's obligation to make Monthly Advances may be waived only by
all of the holders of the Certificates affected by such Event of Default and
(b) no such waiver is permitted that would materially adversely affect any non
consenting Certificateholder. On and after the receipt by such Servicer of
such written notice of termination, all authority and power of such Servicer
hereunder or under the applicable Servicing Agreement, whether with respect to
the Mortgage Loans or otherwise, shall pass to and be vested in the Master
Servicer. The Master Servicer is hereby authorized and empowered to execute
and deliver, on behalf of such Servicer, as attorney-in-fact or otherwise, any
and all documents and other instruments, and to do or accomplish all other
acts or things necessary or appropriate to effect the purposes of such notice
of termination, whether to complete the transfer and endorsement or assignment
of the Mortgage Loans and related documents, or otherwise.
Section 7.02. Master Servicer to Act; Appointment of Successor.
Within 120 days after the Master Servicer gives, and the applicable Servicer
receives a notice of termination pursuant to Section 7.01, the Master Servicer
shall, subject to and to the extent provided in Section 7.03, and subject to
the rights of the Master Servicer to appoint a successor Servicer pursuant to
this Section 7.02, be the successor to the Servicer in its capacity as
servicer under the applicable Servicing Agreement and the transactions set
forth or provided for herein and in such Servicing Agreement and shall be
subject to all the responsibilities, duties and liabilities relating thereto
placed on the Servicer by the terms and provisions of such Servicing Agreement
and applicable law including the obligation to make Monthly Advances or
Servicing Advances pursuant to such Servicing Agreement (it being understood
and agreed that if any Servicer fails to make an Advance, the Master Servicer
shall do so unless a determination has been made that such Advance would
constitute a Nonrecoverable Monthly Advance or a Nonrecoverable Servicing
Advance). As compensation therefor, the Master Servicer 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 under the Servicing Agreement including, if the Servicer was receiving the
Servicing Fee at the Servicing Fee Rate set forth in the Servicing Agreement
(as set forth in the Mortgage Loan Schedule with respect to the related
Mortgage Loans, respectively) such Servicing Fee and the income on investments
or gain related to the Collection Account.
Notwithstanding the foregoing, the Master Servicer may, if it shall
be unwilling to so act, or shall, if it is prohibited by applicable law from
making Monthly Advances and Servicing Advances pursuant to the applicable
Servicing Agreement, or if it is otherwise unable to so act, or, at the
written request of Certificateholders entitled to a majority of the Voting
Rights, appoint, or petition a court of competent jurisdiction to appoint, any
established mortgage loan servicing institution the appointment of which does
not adversely affect the then current rating of the Certificates by each
Rating Agency, as the successor to such Servicer under the applicable
Servicing Agreement in the assumption of all or any part of the
responsibilities, duties or liabilities of such Servicer. No such appointment
of a successor to a Servicer hereunder shall be effective until the Depositor
shall have consented thereto. Any successor to such Servicer shall be an
institution which is a Xxxxxx Xxx and Xxxxxxx Mac approved seller/servicer in
good
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standing, which has a net worth of at least $25,000,000, which is willing to
service the Mortgage Loans and which executes and delivers to the Depositor
and the Master Servicer an agreement accepting such delegation and assignment,
containing an assumption by such Person of the rights, powers, duties,
responsibilities, obligations and liabilities of such terminated Servicer,
(other than liabilities of such terminated Servicer incurred prior to
termination of such Servicer under Section 7.01), with like effect as if
originally named as a party to this Agreement; provided, that each Rating
Agency acknowledges that its rating of the Certificates in effect immediately
prior to such assignment and delegation will not be qualified or reduced, as a
result of such assignment and delegation. Pending appointment of a successor
to a Servicer hereunder, the Master Servicer, unless the Master Servicer is
prohibited by law from so acting, shall, subject to this Section 7.02, act in
such capacity as hereinabove provided. In connection with such appointment and
assumption, the Master Servicer may make such arrangements for the
compensation of such successor out of payments on Mortgage Loans as it, the
Depositor and such successor shall agree; provided, however, that no such
compensation shall be in excess of the Servicing Fee Rate and amounts paid to
the Servicer from investments. The Master Servicer and such successor shall
take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession. Neither the Master Servicer nor any other
successor to a 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.
Any successor 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 each Servicer is required to maintain pursuant to the
applicable Servicing Agreement.
Notwithstanding the foregoing, the Master Servicer may not terminate
a Servicer without cause.
Section 7.03. Master Servicer to Act as Servicer. In the event that
a Servicer shall for any other reason no longer be the Servicer, the Master
Servicer or another successor Servicer, shall thereupon assume all of the
rights and obligations of the predecessor Servicer hereunder arising
thereafter pursuant to Section 7.02.
Section 7.04. Notification to Certificateholders. (a) Upon any
termination of or appointment of a successor to a Servicer, the Securities
Administrator shall give prompt written notice thereof to Certificateholders
and to each Rating Agency.
(b) Promptly after the occurrence of any Event of Default, the
Securities Administrator shall transmit by mail to all Certificateholders and
each Rating Agency notice of each such Event of Default hereunder known to the
Securities Administrator, unless such Event of Default shall have been cured
or waived.
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ARTICLE VIII
CONCERNING THE TRUSTEE AND THE CUSTODIANS
Section 8.01. Duties of the Trustee and the Custodians. The Trustee,
before the occurrence of a Master Servicer Event of Default and after the
curing of all Master Servicer Events of Default that may have occurred, shall
undertake to perform such duties and only such duties as are specifically set
forth in this Agreement. In case a Master Servicer Event of Default has
occurred and remains uncured, the Trustee shall exercise such of the rights
and powers vested in it by this Agreement, and use the same degree of care and
skill in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
The Trustee and the Custodians, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee or the Custodians, as applicable, that
are specifically required to be furnished pursuant to any provision of this
Agreement shall examine them to determine whether on their face they are in
the form required by this Agreement, or with respect to the documents in the
respective Custodial Files whether they satisfy the review criteria set forth
in Section 2.02. Neither the Trustee nor the Custodians shall 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 or the Custodians from liability for its own negligent action, its own
negligent failure to act or its own bad faith or willful misfeasance;
provided, however, that:
(a) unless a Master Servicer Event of Default of which a Responsible
Officer of the Trustee obtains actual knowledge has occurred and is
continuing, 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 of Certificates 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.
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Section 8.02. [Reserved].
Section 8.03. Certain Matters Affecting the Trustee and the
Custodians. Except as otherwise provided in Section 8.01:
(a) the Trustee and the Custodians may request and rely upon and
shall be protected in acting or refraining from acting upon any resolution,
Officer's Certificate, Opinion of Counsel, certificate of auditors or any
other certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or parties
and the Trustee and the Custodians shall have no responsibility to ascertain
or confirm the genuineness of any signature of any such party or parties;
(b) the Trustee and the Custodians 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
advice or Opinion of Counsel;
(c) the Trustee and the Custodians shall not be liable for any
action taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
(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 so to do by Holders of
Certificates evidencing not less than 25% of the Voting Rights allocated to
each Class of Certificates; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of
the Trustee, not assured to the Trustee by the security afforded to it by the
terms of this Agreement, the Trustee may require indemnity satisfactory to the
Trustee against such cost, expense or liability as a condition to taking any
such action. The reasonable expense of every such examination shall be paid by
the applicable Servicer or, if paid by the Trustee, shall be repaid by the
Servicer upon demand from the applicable Servicer's own funds;
(e) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
accountants or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agents, accountants or attorneys
appointed with due care by it hereunder;
(f) neither the Trustee nor the Custodians 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 indemnity satisfactory to it against such risk or
liability is not assured to it;
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(g) the Trustee shall not be liable for any loss on any investment
of funds pursuant to this Agreement (other than as issuer of the investment
security;
(h) unless a Responsible Officer of the Trustee has actual knowledge
of the occurrence of a Master Servicer Event of Default or an Event of
Default, the Trustee shall not be deemed to have knowledge of a Master
Servicer Event of Default or an Event of Default, until a Responsible Officer
of the Trustee shall have received written notice thereof; and
(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 right of the Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the Trustee
shall not be answerable for other than its negligence or willful misconduct in
the performance of such act;
(k) the Trustee shall not be required to give any bond or surety in
respect of the execution of the Trust Fund created hereby or the powers
granted hereunder; and
(l) notwithstanding anything to the contrary in any Servicing
Agreement, the Trustee shall not consent to a Servicer's request of assigning
the Servicing Agreement or the servicing rights thereunder to any other party.
Section 8.04. Trustee and Custodians 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 neither the Trustee nor the
Custodians assumes any responsibility for their correctness. The Trustee and
the Custodians make no representations as to the validity or sufficiency of
this Agreement or of the Certificates or of any Mortgage Loan or related
document. Neither the Trustee nor the Custodians shall be accountable for the
use or application by the Depositor, the Master Servicer, any Servicer or the
Securities Administrator of any funds paid to the Depositor, the Master
Servicer, any Servicer or the Securities Administrator in respect of the
Mortgage Loans or deposited in or withdrawn from the Collection Account or the
Distribution Account by the Depositor, the Master Servicer, any Servicer, or
the Securities Administrator.
The Trustee shall have no responsibility (i) 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 and remains the
successor Master Servicer) (ii) to see to any insurance (unless the Trustee
shall have become the successor Master Servicer), or (iii) to confirm or
verify the contents of any reports or certificates of the Servicers,
Securities Administrator or Master Servicer delivered to the Trustee pursuant
to this Agreement believed by the Trustee to be genuine and to have been
signed or presented by the proper party or parties.
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The Securities Administrator 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 8.05. 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 8.06. Trustee's Fees and Expenses. As compensation for its
activities under this Agreement, the Trustee shall be paid an on-going monthly
or annual fee, as applicable, by the Securities Administrator pursuant to a
separate agreement. The Trustee shall have no lien on the Trust Fund for the
payment of such fees. The Trustee shall be entitled to be reimbursed, from
funds on deposit in the Distribution Account, amounts sufficient to indemnify
and hold harmless the Trustee and any director, officer, employee, or agent of
the Trustee against any loss, liability, or expense (including reasonable
attorneys' fees) incurred in connection with any claim or legal action
relating to:
(a) this Agreement;
(b) the Certificates; or
(c) the performance of any of the Trustee's duties under this
Agreement;
other than any loss, liability, or expense (i) resulting from any
breach of any Servicer's obligations in connection with a Servicing Agreement
for which that Servicer has performed its obligation to indemnify the Trustee
pursuant to Servicing Agreement, (ii) resulting from any breach of the
Responsible Party's obligations in connection with any Sale Agreement for
which it has performed its obligation to indemnify the Trustee pursuant to the
Sale Agreement, (iii) resulting from any breach of the Master Servicer's
obligations hereunder for which the Master Servicer has performed its
obligation to indemnify the Trustee pursuant to this Agreement, or (iv)
incurred because of willful misfeasance, bad faith, or negligence in the
performance of any of the Trustee's 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, and
(B) the reasonable compensation, expenses, and disbursements of any
accountant, engineer, or appraiser that is not regularly employed by the
Trustee,
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to the extent that the Trustee must engage them to perform services under
this Agreement.
Except as otherwise provided in this Agreement, the Trustee shall
not be entitled to payment or reimbursement for any routine ongoing expenses
incurred by the Trustee in the ordinary course of its duties as Trustee under
this Agreement or for any other expenses.
Section 8.07. Eligibility Requirements for the Trustee. The Trustee
hereunder shall at all times be a corporation, banking association or other
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 8.07 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 8.07, the Trustee shall resign immediately in the manner and with
the effect specified in Section 8.08. The entity serving as Trustee may have
normal banking and trust relationships with the Depositor and its affiliates
or with the Servicer and its affiliates; provided, however, that such entity
cannot be an affiliate of the Depositor or of any Servicer other than the
Trustee in its role as successor to the Master Servicer.
Section 8.08. 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 Master Servicer,
the Securities Administrator and each Rating Agency not less than sixty (60)
days before the date specified in such notice, when, subject to Section 8.09,
such resignation is to take effect, and acceptance by a successor trustee in
accordance with Section 8.09 meeting the qualifications set forth in Section
8.07. If no successor trustee meeting such qualifications shall have been so
appointed and have accepted appointment within thirty (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.
At least fifteen (15) calendar days prior to the effective date of
such resignation, the Trustee shall provide written notice to the Depositor of
any successor pursuant to this Section 8.08.
If at any time the (i) Trustee shall cease to be eligible in
accordance with Section 8.07 and shall fail to resign after written request
thereto by the Depositor, (ii) 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, (iii)(A) a tax is imposed with
respect to the Trust Fund by any state in which the Trustee or the Trust Fund
is located and (B) the imposition of such tax would be avoided by the
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appointment of a different trustee, or (iv) the Trustee fails to comply with
its obligations under Article XIII and such failure is not remedied within the
lesser of ten (10) calendar days or such period in which the applicable
Exchange Act Report can be filed timely (without taking into account any
extensions), then, in the case of clauses (i) through (iv), the Depositor may
remove the Trustee and appoint a successor trustee by written instrument, in
duplicate, one copy of which shall be delivered to the Trustee 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 duplicate, signed by such Holders or
their attorneys in fact duly authorized, one complete set of which shall be
delivered 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 8.08 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section
8.09.
Section 8.09. Successor Trustee. Any successor trustee appointed as
provided in Section 8.08 shall execute, acknowledge and deliver to the
Depositor and to its predecessor trustee 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 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 8.09 unless at the time of its acceptance, the successor trustee is
eligible under Section 8.07 and its appointment does not adversely affect the
then current rating of the Certificates and has provided to the Depositor in
writing and in form and substance reasonably satisfactory to the Depositor,
all information reasonably requested by the Depositor in order to comply with
its reporting obligation under Item 6.02 of Form 8-K with respect to a
replacement Trustee.
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.09, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates and the Custodians. If the
Depositor fails to mail such notice within ten (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 8.10. Merger or Consolidation of the Trustee or the
Custodians. Any corporation into which the Trustee or the Custodians, as
applicable, 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 or the Custodians, as applicable, shall be a party, or any
corporation succeeding to the business of the Trustee or the Custodians, as
applicable, shall be the successor of the Trustee or the Custodians, as
applicable, hereunder; provided, that such corporation shall be eligible under
Section 8.07 without the execution or filing of any paper or
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further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
Section 8.11. 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 Trustee shall have the power and shall execute and deliver all
instruments to appoint one or more Persons 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 8.11, such powers, duties, obligations,
rights and trusts as the Trustee may consider appropriate. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility
as a successor trustee under Section 8.09 and no notice to Certificateholders
of the appointment of any co-trustee or separate trustee shall be required
under Section 8.09.
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 8.11, all rights, powers, duties and obligations conferred or imposed
upon the Trustee, except for the obligation of the Trustee (as successor
Master Servicer) under this Agreement to advance funds on behalf of the Master
Servicer, shall be conferred or imposed upon and exercised or performed by the
Trustee and such separate trustee or co-trustee jointly (it being understood
that such separate trustee or co-trustee is not authorized to act separately
without the Trustee joining in such act), except to the extent that under any
law of any jurisdiction in which any particular act or acts are to be
performed (whether as Trustee hereunder or as successor to the Master Servicer
hereunder), the Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the applicable Trust Fund or any portion
thereof in any such jurisdiction) shall be exercised and performed singly by
such separate trustee or co-trustee, but solely at the direction of the
Trustee;
(b) No trustee hereunder shall be held personally liable because of
any act or omission of any other trustee hereunder and such appointment shall
not, and shall not be deemed to, constitute any such separate trustee or
co-trustee as agent of the Trustee;
(c) The Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee; and
(d) The Trust Fund, and not the Trustee, shall be liable for the
payment of reasonable compensation, reimbursement and indemnification to any
such separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the separate trustees and co-trustees,
when and as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this
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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 Master 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 8.12. Tax Matters. It is intended that the assets with
respect to which any REMIC election pertaining to the Trust Fund is to be
made, as set forth in the Preliminary Statement, shall constitute, and that
the conduct of matters relating to such assets shall be such as to qualify
such assets as, a "real estate mortgage investment conduit" as defined in, and
in accordance with, the REMIC Provisions. In furtherance of such intention,
the Securities Administrator covenants and agrees that it shall act as agent
(and the Securities Administrator is hereby appointed to act as agent) on
behalf of each 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 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 (30) days of the Closing Date, apply for an
employer identification number from the Internal Revenue Service via Form SS-4
or any other acceptable method for all tax entities and shall also furnish to
the Internal Revenue Service, on Form 8811 or as otherwise may be required by
the Code, the name, title, address, and telephone number of the person that
the holders of the Certificates may contact for tax information relating
thereto, together with such additional information as may be required by such
Form, and update such information at the time or times in the manner required
by the Code;
(c) make an election that each Trust 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
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calculation of any original issue discount using the prepayment assumption (as
described in the Prospectus Supplement);
(e) provide information necessary for the computation of tax imposed
on the transfer of a Residual Certificate to a Person that is not a Permitted
Transferee (a "Non Permitted Transferee"), or an agent (including a broker,
nominee or other middleman) of a Non Permitted Transferee, or a pass through
entity in which a Non Permitted Transferee is the record holder of an interest
(the reasonable cost of computing and furnishing such information may be
charged to the Person liable for such tax);
(f) to the extent that they are under its control, conduct matters
relating to such assets at all times that any Certificates are outstanding so
as to maintain the status of each Trust REMIC as a REMIC under the REMIC
Provisions;
(g) not knowingly or intentionally take any action or omit to take
any action that would cause the termination of the REMIC status of any Trust
REMIC created hereunder;
(h) pay, from the sources specified in the last paragraph of this
Section 8.12, the amount of any federal or state tax, including prohibited
transaction taxes as described below, imposed on any Trust REMIC before its
termination when and as the same shall be due and payable (but such obligation
shall not prevent the Securities Administrator or any other appropriate Person
from contesting any such tax in appropriate proceedings and shall not prevent
the Securities Administrator from withholding payment of such tax, if
permitted by law, pending the outcome of such proceedings);
(i) cause federal, state or local income tax or information returns
to be signed by the Securities Administrator or, if required by applicable tax
law, the Trustee or such other person as may be required to sign such returns
by the Code or state or local laws, regulations or rules;
(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 each 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 each Trust REMIC, enter into settlement
agreements with any governmental taxing agency, extend any statute of
limitations relating to any tax item of any Trust REMIC, and otherwise act on
behalf of each Trust REMIC in relation to any tax matter or controversy
involving it.
The Holder of the largest Percentage Interest of the Class R, Class
RC and Class RX Certificates shall act as Tax Matters Person for the
Lower-Tier REMIC and the Middle-Tier REMIC, the Upper-Tier REMIC and the Class
X REMIC, respectively, within the meaning of Treasury Regulations Section
1.860F-4(d), and the Securities Administrator is hereby designated as agent of
such Certificateholder for such purpose (or if the Securities Administrator is
not so
81
permitted, such Holder shall be the Tax Matters Person in accordance with the
REMIC Provisions). In such capacity, the Securities Administrator shall, as
and when necessary and appropriate, represent each 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 each Trust REMIC, enter into settlement agreements with
any governmental taxing agency, extend any statute of limitations relating to
any tax item of any Trust REMIC, and otherwise act on behalf of each Trust
REMIC in relation to any tax matter or controversy involving it.
The Securities Administrator shall treat the rights of the Class P
Certificateholders to receive Prepayment Premiums, the rights of the Class X
Certificateholders to receive amounts in the Excess Reserve Fund Account
(subject to the obligation to pay Basis Risk Carry Forward Amounts) and the
rights of the Principal Certificateholders to receive Basis Risk Carry Forward
Amounts (as calculated in the Preliminary Statement) as the beneficial
ownership interests in a grantor trust and not as an obligations of any REMIC
created hereunder, for federal income tax purposes. The Securities
Administrator shall file or cause to be filed with the Internal Revenue
Service Form 1041 or such other form as may be applicable and shall furnish or
cause to be furnished, to the Class X Certificateholders, the Class P
Certificateholders and the Principal Certificateholders, the respective
amounts described above that are received, in the time or times and in the
manner required by the Code.
To enable the Securities Administrator to perform its duties under
this Agreement, the Depositor shall provide to the Securities Administrator
within ten (10) days after the Closing Date all information or data that the
Securities Administrator requests in writing and determines to be relevant for
tax purposes to the valuations and offering prices of the Certificates,
including the price, yield, prepayment assumption, and projected cash flows of
the Certificates and the Mortgage Loans. Moreover, the Depositor shall provide
information to the Securities Administrator concerning the value, if any, to
each Class of Certificates of the right to receive Basis Risk Carry Forward
Amounts from the Excess Reserve Fund Account. Thereafter, the Depositor shall
provide to the Securities Administrator promptly upon written request therefor
any additional information or data that the Securities Administrator may, from
time to time, reasonably request to enable the Securities Administrator to
perform its duties under this Agreement. The Depositor hereby indemnifies the
Securities Administrator for any losses, liabilities, damages, claims, or
expenses of the Securities Administrator arising from any errors or
miscalculations of the Securities Administrator that result from any failure
of the Depositor to provide, or to cause to be provided, accurate information
or data to the Securities Administrator on a timely basis.
If any tax is imposed on "prohibited transactions" of any Trust
REMIC as defined in Section 860F(a)(2) of the Code, on the "net income from
foreclosure property" of the Lower-Tier REMIC as defined in Section 860G(c) of
the Code, on any contribution to any Trust REMIC after the Startup Day
pursuant to Section 860G(d) of the Code, or any other tax is imposed,
including 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 Master
Servicer, the Trustee or the Securities Administrator, as applicable if such
tax arises out of or results from negligence of the Master Servicer, the
Trustee or the Securities Administrator, as applicable in the performance of
any of
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its obligations under this Agreement, (ii) a Servicer, in the case of any such
minimum tax, and otherwise if such tax arises out of or results from a breach
by the Servicer of any of its obligations under the applicable Servicing
Agreement, (iii) a Responsible Party if such tax arises out of or results from
the Responsible Party's obligation to repurchase a Mortgage Loan pursuant to
the applicable Sale Agreement or (iv) in all other cases, or if the Trustee,
the Master Servicer, the Securities Administrator, the Servicer or the
Responsible Party 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 4.01(a).
For as long as each Trust REMIC shall exist, the Securities
Administrator shall act as specifically required herein, and the Securities
Administrator shall comply with any directions of the Depositor or a Servicer
stating that such directions are being given to assure such continuing
treatment. In particular, the Securities Administrator shall not (a) sell or
authorize the sale of all or any portion of the Mortgage Loans or of any
investment of deposits in an Account unless such sale is as a result of a
purchase or repurchase of the Mortgage Loans pursuant to this Agreement or (b)
accept any contribution to any Trust REMIC after the Startup Day without
receipt of an Opinion of Counsel that such action described in clause (a) or
(b) will not result in the imposition of a tax on any Trust REMIC or cause any
Trust REMIC to fail to qualify as a REMIC at any time that any Certificates
are outstanding.
Section 8.13. [Reserved].
Section 8.14. Tax Classification of the Excess Reserve Fund Account.
For federal income tax purposes, the Securities Administrator shall treat the
Excess Reserve Fund Account as beneficially owned by the holder of the Class X
Certificates and shall treat such portion of the Trust Fund as a grantor trust
under subpart E, Part I of subchapter J of the Code. The Securities
Administrator shall treat the rights that each Class of LIBOR Certificates has
to receive payments of Basis Risk Carry Forward Amounts from the Excess
Reserve Fund Account 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 Certificates (other than the Class P and Residual
Certificates) will comprise two components -- a regular interest in the
Upper-Tier REMIC and an interest in an interest rate cap contract. The
Securities Administrator shall allocate the issue price for a Class of
Certificates among these components for purposes of determining the issue
price of the Upper-Tier Regular Interest component based on information
received from the Depositor. Unless otherwise advised by the Depositor in
writing, for federal income tax purposes, the Securities Administrator is
hereby directed to assign a value of zero to the right of each Holder of a
LIBOR Certificate to receive the related Basis Risk Carry Forward Amount for
purposes of allocating the purchase price of an initial LIBOR
Certificateholder between such right and the related Upper-Tier Regular
Interest.
Section 8.15. Custodial Responsibilities; Compensation. Each of the
Custodians shall provide access to the Mortgage Loan documents in possession
of such 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 two (2) Business Days prior written request and during normal
business hours at the office of such Custodian; provided, however, that,
unless otherwise required by law or any regulatory or administrative agency
(including the FDIC), such Custodian
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shall not be required to provide access to such records and documentation if
the provision thereof would violate the legal right to privacy of any
Mortgagor. Each of the Custodians 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 Trust that covers such
Custodians actual costs.
Upon receipt of a Request for Release by a Servicer substantially in
the form of Exhibit L, L-1, L-2 or L-3 hereto, the applicable Custodian shall
release within five (5) Business Days the related Mortgage File to such
Servicer and the Trustee shall execute and deliver to such Servicer, without
recourse, a request for reconveyance, deed of reconveyance or release or
satisfaction of mortgage or such instrument releasing the lien of the Mortgage
(furnished by such Servicer), together with the Mortgage Note.
Each of the Custodians may resign at any time or may be terminated
by the Trustee with cause, in each case, upon sixty (60) days written notice
to the applicable Servicer, the Depositor and the Securities Administrator, in
which event the Depositor will be obligated to appoint a successor. If no
successor has been appointed and has accepted appointment within sixty (60)
days after the resignation or termination of such Custodian, such Custodian
may petition any court of competent jurisdiction for appointment of a
successor.
The Securities Administrator, pursuant to a separate agreement,
shall compensate from its own funds the Custodians for their respective
activities under this Agreement, pursuant to a schedule of fees and expenses
provided by the Custodians to the Securities Administrator. The Custodians
shall have no lien on the Trust Fund for the payment of such fees. The
Custodians shall be entitled to be reimbursed, from funds on deposit in the
Distribution Account, amounts sufficient to indemnify and hold harmless each
of the Custodians and any director, officer, employee, or agent of a Custodian
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 such Custodian's duties under this
Agreement,
other than any loss, liability, or expense (i) resulting from any
breach of a Servicer's obligations in connection with a Servicing Agreement
for which the Servicer has performed its obligation to indemnify such
Custodian pursuant to such Servicing Agreement, (ii) resulting from any breach
of the Responsible Party's obligations in connection with a Servicing
Agreement for which the Responsible Party has performed its obligation to
indemnify such Custodian pursuant to such Servicing Agreement, or (iii)
incurred because of willful misfeasance, bad faith, or negligence in the
performance of any of such Custodian's duties under this Agreement.
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ARTICLE IX
ADMINISTRATION OF THE MORTGAGE LOANS
BY THE MASTER SERVICER
Section 9.01. Duties of the Master Servicer; Enforcement of
Servicer's Obligations. (a) The Master Servicer, on behalf of the Trustee, the
Securities Administrator, the Depositor and the Certificateholders, shall
monitor the performance of the Servicers under the related Servicing
Agreements, and (except as set forth below) shall use its reasonable good
faith efforts to cause the Servicers to duly and punctually perform their
duties and obligations thereunder as applicable. Upon the occurrence of an
Event of Default of which a Responsible Officer of the Master Servicer has
actual knowledge, the Master Servicer shall promptly notify the Securities
Administrator and the Trustee and shall specify in such notice the action, if
any, the Master Servicer plans to take in respect of such default. So long as
an Event of Default shall occur and be continuing, the Master Servicer shall
take the actions specified in Article VII. In no event, however, will the
Master Servicer be responsible for supervising, monitoring, or overseeing the
administration and the servicing by any Servicer of any defaulted Mortgage
Loans and any related REO Properties.
If (i) a Servicer reports a delinquency on a monthly report and (ii)
such Servicer, by 11 a.m. (New York Time) on the Business Day preceding the
Remittance Date (except with respect to JPMorgan, by 4:00 p.m. (New York Time)
on the related Remittance Date), neither makes a Monthly Advance nor provides
the Securities Administrator and the Master Servicer with a report certifying
that such a Monthly Advance would be a Nonrecoverable Monthly Advance, then
the Master Servicer shall deposit in the Distribution Account not later than
the Business Day immediately preceding the related Distribution Date a Monthly
Advance in an amount equal to the difference between (x) with respect to each
Monthly Payment due on a Mortgage Loan that is delinquent (other than Relief
Act Interest Shortfalls) and for which the related Servicer was required to
make a Monthly Advance pursuant to the related Servicing Agreement and (y)
amounts deposited in the Collection Account to be used for Monthly Advances
with respect to such Mortgage Loan, except to the extent the Master Servicer
determines any such Monthly Advance to be a Nonrecoverable Monthly Advance or
Nonrecoverable Servicing Advance. Subject to the foregoing, the Master
Servicer shall continue to make such Monthly Advances for so long as the
related Servicer is required to do so under the related Servicing Agreement.
If applicable, on the Business Day immediately preceding the Distribution
Date, the Master Servicer shall deliver an Officer's Certificate to the
Trustee stating that the Master Servicer elects not to make a Monthly Advance
in a stated amount and detailing the reason(s) it deems the Monthly Advance to
be a Nonrecoverable Monthly Advance. Any amounts deposited by the Master
Servicer pursuant to this Section 9.01 shall be net of the Servicing Fee for
the related Mortgage Loans.
(b) The Master Servicer shall pay the costs of monitoring the
Servicers as required hereunder (including costs associated with (i)
termination of any Servicer, (ii) the appointment of a successor servicer or
(iii) the transfer to and assumption of, the servicing by the Master Servicer)
and shall, to the extent permitted by the related Servicing Agreement, seek
reimbursement therefor initially from the terminated Servicer. In the event
the full costs associated with the transition of servicing responsibilities to
the Master Servicer or to a successor
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servicer are not paid for by the predecessor or successor Servicer (provided
such successor Servicer is not the Master Servicer), the Master Servicer may
be reimbursed therefor by the Trust for out-of-pocket costs incurred by the
Master Servicer associated with any such transfer of servicing duties from a
Servicer to the Master Servicer or any other successor servicer.
(c) If the Master Servicer assumes the servicing with respect to any
of the Mortgage Loans, it will not assume liability for the representations
and warranties of any Servicer it replaces or for any errors or omissions of
such Servicer.
If the Depositor or an affiliate of the Depositor, is the owner of
the servicing rights for a servicer and the Depositor chooses to terminate
such servicer with or without cause and sell those servicing rights to a
successor servicer, then the Depositor must provide thirty (30) days' notice
to the Master Servicer, such successor servicer must be reasonably acceptable
to the Master Servicer, the terminated servicer must be reimbursed for any
unreimbursed Monthly Advances, servicing fees and any related expenses, the
successor servicer must be qualified to service mortgage loans for Xxxxxx Xxx
or Xxxxxxx Mac and the Depositor must obtain prior written consent from the
Rating Agencies that the transfer of the servicing of the mortgage loans will
not result in a downgrade, qualification or withdrawal of the then current
ratings of the Certificates. The costs of such transfer (including any costs
of the Master Servicer) are to be borne by the Depositor.
Neither the Depositor nor the Securities Administrator shall consent
to the assignment by any Servicer of such Servicer's rights and obligations
under the Agreement without the prior written consent of the Master Servicer,
which consent shall not be unreasonably withheld.
(d) In addition to the responsibilities described in this Section
9.01, JPMorgan, as back-up servicer (in such capacity, the "Back-up
Servicer"), shall also be responsible for certain additional monitoring,
reporting and reconciliation functions in connection with the Xxxxxxx Conduit
Mortgage Loans serviced by Avelo. Prior to the resignation or termination of
Avelo as a Servicer, the Back-up Servicer agrees to perform the following
duties:
(i) The Back-up Servicer shall create a dedicated servicing platform
to review and confirm the information provided to it by Avelo with
respect to the Xxxxxxx Conduit Mortgage Loans.
(ii) Receive the initial loan level data tape provided by Avelo
regarding the Xxxxxxx Conduit Mortgage Loans and confirm within ten (10)
Business Days of receipt the beginning mortgage loan count, the aggregate
mortgage loan principal balances and aggregate mortgage loan escrow
balances.
(iii) On the 1st of each month, receive the month end data tape
provided by Avelo regarding the Xxxxxxx Conduit Mortgage Loans during the
month prior thereto.
(iv) Within five (5) Business Days of the receipt of the month end
data tape, confirm the mortgage loan count and the mortgage loan
principal balances to the trial balance report prepared by Avelo with
respect to the Xxxxxxx Conduit Mortgage Loans
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and report all discrepancies to Avelo and the Depositor. To the extent
Avelo and the Back-up Servicer cannot resolve such discrepancy, the
Back-up Servicer shall provide a written explanation of the discrepancy
to the Master Servicer, with a copy to Avelo.
(v) Not later than the date which is two (2) Business Days prior to
the Remittance Date, the Back-up Servicer shall furnish to the Master
Servicer a monthly remittance advice and a trial balance report in hard
copy and electronic medium mutually acceptable to the Depositor and the
Master Servicer.
(vi) The Back-up Servicer shall consult fully with Avelo as may be
necessary from time to time to perform or carry out the Back-up
Servicer's obligations hereunder.
Section 9.02. Maintenance of Fidelity Bond and Errors and Omissions
Insurance.
(a) The Master Servicer, at its expense, shall maintain in effect a
blanket fidelity bond and an errors and omissions insurance policy, affording
coverage with respect to all directors, officers, directors, employees and
other Persons acting on such Master Servicer's behalf, and covering errors and
omissions in the performance of the Master Servicer's obligations hereunder.
The errors and omissions insurance policy and the fidelity bond shall be in
such form and amount generally acceptable for entities serving as master
servicers or trustees.
Section 9.03. Representations and Warranties of the Master Servicer.
(a) The Master Servicer hereby represents and warrants to the Depositor, the
Securities Administrator and the Trustee, for the benefit of the
Certificateholders, as of the Closing Date that:
(i) it is a national banking association validly existing and in
good standing under the laws of the United States of America, and as
Master Servicer has full power and authority to transact any and all
business contemplated by this Agreement and to execute, deliver and
comply with its obligations under the terms of this Agreement, the
execution, delivery and performance of which have been duly authorized by
all necessary corporate action on the part of the Master Servicer;
(ii) the execution and delivery of this Agreement by the Master
Servicer and its performance and compliance with the terms of this
Agreement will not (A) violate the Master Servicer's charter or bylaws,
(B) violate any law or regulation or any administrative decree or order
to which it is subject or (C) constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default) under,
or result in the breach of, any material contract, agreement or other
instrument to which the Master Servicer is a party or by which it is
bound or to which any of its assets are subject, which violation, default
or breach would materially and adversely affect the Master Servicer's
ability to perform its obligations under this Agreement;
(iii) this Agreement constitutes, assuming due authorization,
execution and delivery hereof by the other respective parties hereto, a
legal, valid and binding obligation of the Master Servicer, enforceable
against it in accordance with the terms hereof, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
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in general, and by general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law);
(iv) the Master Servicer is not in default with respect to any order
or decree of any court or any order or regulation of any federal, state,
municipal or governmental agency to the extent that any such default
would materially and adversely affect its performance hereunder;
(v) the Master Servicer is not a party to or bound by any agreement
or instrument or subject to any charter provision, bylaw or any other
corporate restriction or any judgment, order, writ, injunction, decree,
law or regulation that may materially and adversely affect its ability as
Master Servicer to perform its obligations under this Agreement or that
requires the consent of any third person to the execution of this
Agreement or the performance by the Master Servicer of its obligations
under this Agreement;
(vi) no litigation is pending or, to the Master Servicer's
knowledge, threatened against the Master Servicer which would prohibit
its entering into this Agreement or performing its obligations under this
Agreement;
(vii) [Reserved];
(viii) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Master Servicer of or compliance by the Master
Servicer with this Agreement or the consummation of the transactions
contemplated by this Agreement, except for such consents, approvals,
authorizations and orders (if any) as have been obtained; and
(ix) the consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Master Servicer.
(b) Section 11.01(a) of this Agreement and Section 7 of the
applicable Step 2 Assignment Agreements provide that Avelo, at its option, may
purchase (or, if Avelo is no longer acting as a Servicer of any of the
Mortgage Loans, the Depositor, at its option, may request the Master Servicer
to solicit bids in a commercially reasonable manner, on or after the Optional
Termination Date (such event, the "Auction Call"), for the purchase) of all of
the Mortgage Loans (and REO Properties) at the Termination Price. The Master
Servicer shall accommodate such request to conduct an Auction Call at its sole
discretion. Avelo, in consideration of the benefits to it of the transactions
occurring under this Agreement, the Assignment Agreements and the related
Servicing Agreement, hereby represents, covenants and agrees with the
Depositor and any applicable NIM Issuer that it will not exercise its right to
purchase, on or after the Optional Termination Date, all Mortgage Loans (and
REO Properties) unless it has received (x) written notification from the NIM
Trustee that all of the outstanding notes issued under the applicable
indenture have been paid in full or (y) an Officer's Certificate of the NIM
Issuer pursuant to the applicable section of the relevant indenture to the
effect that all conditions precedent to the satisfaction and discharge of the
indenture have been complied with. The Depositor hereby represents, covenants
and agrees with any applicable NIM Issuer that it
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will not exercise its right to request the Master Servicer to solicit bids in
a commercially reasonable manner, on or after the Optional Termination Date,
for the purchase of all of the Mortgage Loans (and REO Properties) unless it
has received (x) written notification from the NIM Trustee that all of the
outstanding notes issued under the applicable indenture have been paid in full
or (y) an Officer's Certificate of the NIM Issuer pursuant to the applicable
section of the relevant indenture to the effect that all conditions precedent
to the satisfaction and discharge of the indenture have been complied with.
(c) It is understood and agreed that the representations and
warranties set forth in this Section shall survive the execution and delivery
of this Agreement. The Master Servicer shall indemnify the Depositor,
Securities Administrator, and the Trustee and hold them harmless against any
loss, damages, penalties, fines, forfeitures, reasonable legal fees and
related costs, judgments, and other reasonable costs and expenses resulting
from any claim, demand, defense or assertion based on or grounded upon, or
resulting from, a material breach of the Master Servicer's representations and
warranties contained in Section 9.03(a) above. It is understood and agreed
that the enforcement of the obligation of the Master Servicer set forth in
this Section 9.03 to indemnify the Depositor, Securities Administrator, and
the Trustee constitutes the sole remedy of the Depositor and the Trustee,
respecting a breach of the foregoing representations and warranties. Such
indemnification shall survive any termination of the Master Servicer as Master
Servicer hereunder and any termination of this Agreement.
Any cause of action against the Master Servicer relating to or
arising out of the breach of any representations and warranties made in this
Section shall accrue upon discovery of such breach by either the Depositor,
the Master Servicer, Securities Administrator or the Trustee or notice thereof
by any one of such parties to the other parties.
Section 9.04. Master Servicer Events of Default. Each of the
following shall constitute a "Master Servicer Event of Default":
(a) any failure by the Master Servicer to deposit in the
Distribution Account any payment received by it from any Servicer or required
to be made by the Master Servicer under the terms of this Agreement which
continues unremedied for a period of two (2) Business Days after the date upon
which written notice of such failure, requiring the same to be remedied, shall
have been given to the Master Servicer by any other party hereto;
(b) failure by the Master Servicer to duly observe or perform, in
any material respect, any other covenants, obligations or agreements of the
Master Servicer as set forth in this Agreement (including any obligation to
cause any subservicer or Reporting Subcontractor (except as specified below)
to take any action specified in Article XIII) which failure continues
unremedied for a period of thirty (30) days after the date on which written
notice of such failure, requiring the same to be remedied, shall have been
given to the Master Servicer by the Trustee or to the Master Servicer and the
Trustee by the holders of Certificates evidencing at least 25% of the Voting
Rights; provided that the thirty (30) day cure period shall not apply so long
as the Depositor is required to file Exchange Act Reports with respect to the
Trust Fund, the failure to comply with the requirements set forth in Article
XIII, for which the grace period shall not exceed the lesser of ten (10)
calendar days or such period in which the applicable Exchange Act Report can
be filed timely (without taking into account any extensions).
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(c) a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshaling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Master
Servicer and such decree or order shall have remained in force, undischarged
or unstayed for a period of sixty (60) days;
(d) the Master Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, bankruptcy,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings of or relating to the Master Servicer or relating to all or
substantially all of its property;
(e) the Master Servicer shall admit in writing its inability to pay
its debts as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its obligations
for three (3) Business Days;
(f) except as otherwise set forth herein, the Master Servicer
attempts to assign this Agreement or its responsibilities hereunder or to
delegate its duties hereunder (or any portion thereof) without the consent of
the Trustee, the Securities Administrator and the Depositor; or
(g) the indictment of the Master Servicer for the taking of any
action by the Master Servicer, any employee thereof, any Affiliate or any
director or employee thereof that constitutes fraud or criminal activity in
the performance of its obligations under this Agreement, in each case, where
such indictment materially and adversely affects the ability of the Master
Servicer to perform its obligations under this Agreement (subject to the
condition that such indictment is not dismissed within ninety (90) days).
In each and every such case, so long as a Master Servicer Event of
Default shall not have been remedied, in addition to whatever rights the
Trustee may have at law or equity to damages, including injunctive relief and
specific performance, the Trustee, by notice in writing to the Master
Servicer, may, and (a) upon the request of the Holders of Certificates
representing at least 51% of the Voting Rights (except with respect to any
Master Servicer Event of Default related to a failure to comply with an
Exchange Act Filing Obligation) or (b) the Depositor, in the case of a failure
related to an Exchange Act Filing Obligation, shall, terminate with cause all
the rights and obligations of the Master Servicer under this Agreement.
The Depositor shall not be entitled to terminate the rights and
obligations of the Master Servicer, pursuant to the above paragraph, if a
failure of the Master Servicer to identify a Subcontractor "participating in
the servicing function" within the meaning of Item 1122 of Regulation AB was
attributable solely to the role or functions of such Subcontractor with
respect to mortgage loans other than the Mortgage Loans.
Upon receipt by the Master Servicer of such written notice, all
authority and power of the Master Servicer under this Agreement, shall pass to
and be vested in any successor master servicer appointed hereunder which
accepts such appointments. Upon written request from the Trustee or the
Depositor, the Master Servicer shall prepare, execute and deliver
to the
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successor entity designated by the Trustee any and all documents and other
instruments related to the performance of its duties hereunder as the Master
Servicer and, place in such successor's possession all such documents with
respect to the master servicing of the Mortgage Loans and do or cause to be
done all other acts or things necessary or appropriate to effect the purposes
of such notice of termination, at the Master Servicer's sole expense. The
Master Servicer shall cooperate with the Trustee and such successor master
servicer in effecting the termination of the Master Servicer's
responsibilities and rights hereunder, including without limitation, the
transfer to such successor master servicer for administration by it of all
cash amounts which shall at the time be credited to the Distribution Account
or are thereafter received with respect to the Mortgage Loans.
Upon the occurrence of a Master Servicer Event of Default, the
Securities Administrator shall provide the Depositor in writing and in form
and substance reasonably satisfactory to the Depositor, all information
reasonably requested by the Depositor in order to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to a successor master
servicer in the event the Trustee should succeed to the duties of the Master
Servicer as set forth herein.
Section 9.05. Waiver of Default. By a written notice, the Trustee
may with the consent of a Holders of Certificates evidencing at least 51% of
the Voting Rights waive any default by the Master Servicer in the performance
of its obligations hereunder and its consequences. Upon any waiver of a past
default, such default shall cease to exist, and any Master Servicer Event of
Default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereon except to the extent
expressly so waived.
Section 9.06. Successor to the Master Servicer. Upon termination of
the Master Servicer's responsibilities and duties under this Agreement, the
Trustee shall appoint or may petition any court of competent jurisdiction for
the appointment of a successor, which shall succeed to all rights and assume
all of the responsibilities, duties and liabilities of the Master Servicer
under this Agreement prior to the termination of the Master Servicer. Any
successor shall be a Xxxxxx Xxx and Xxxxxxx Mac approved servicer in good
standing and acceptable to the Depositor and the Rating Agencies. In
connection with such appointment and assumption, the Trustee may make such
arrangements for the compensation of such successor out of payments on
Mortgage Loans as it and such successor shall agree; provided, however, that
in no event shall the master servicer fee paid to such successor master
servicer exceed that paid to the Master Servicer hereunder. In the event that
the Master Servicer's duties, responsibilities and liabilities under this
Agreement are terminated, the Master Servicer shall continue to discharge its
duties and responsibilities hereunder until the effective date of such
termination with the same degree of diligence and prudence which it is
obligated to exercise under this Agreement and shall take no action whatsoever
that might impair or prejudice the rights of its successor. The termination of
the Master Servicer shall not become effective until a successor shall be
appointed pursuant hereto and shall in no event (i) relieve the Master
Servicer of responsibility for the representations and warranties made
pursuant to Section 9.03(a) hereof and the remedies available to the Trustee
under Section 9.03(b) hereof, it being understood and agreed that the
provisions of Section 9.03 hereof shall be applicable to the Master Servicer
notwithstanding any such sale, assignment, resignation or termination of the
Master Servicer or the termination of this
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Agreement; or (ii) affect the right of the Master Servicer to receive payment
and/or reimbursement of any amounts accruing to it hereunder prior to the date
of termination (or during any transition period in which the Master Servicer
continues to perform its duties hereunder prior to the date the successor
master servicer fully assumes its duties).
If no successor Master Servicer has accepted its appointment within
ninety (90) days of the time the Trustee receives the resignation of the
Master Servicer, the Trustee shall be the successor Master Servicer in all
respects under this Agreement and shall have all the rights and powers and be
subject to all the responsibilities, duties and liabilities relating thereto,
including the obligation to make Monthly Advances; provided, however, that any
failure to perform any duties or responsibilities caused by the Master
Servicer's failure to provide information required by this Agreement shall not
be considered a default by the Trustee hereunder. In the Trustee's capacity as
such successor, the Trustee shall have the same limitations on liability
herein granted to the Master Servicer. As compensation therefor, the Trustee
shall be entitled to receive the compensation, reimbursement and indemnities
otherwise payable to the Master Servicer, including the fees and other amounts
payable pursuant to Section 9.07 hereof.
At least fifteen (15) calendar days prior to the effective date of
such appointment, the Trustee shall provide written notice to the Depositor of
such successor pursuant to this Section 9.06.
Any successor master servicer appointed as provided herein, shall
execute, acknowledge and deliver to the Master Servicer and to the Trustee an
instrument accepting such appointment, wherein the successor shall make the
representations and warranties set forth in Section 9.03 hereof, and whereupon
such successor shall become fully vested with all of the rights, powers,
duties, responsibilities, obligations and liabilities of the Master Servicer,
with like effect as if originally named as a party to this Agreement. Any
termination or resignation of the Master Servicer or termination of this
Agreement shall not affect any claims that the Trustee may have against the
Master Servicer arising out of the Master Servicer's actions or failure to act
prior to any such termination or resignation or in connection with the
Trustee's assumption of such obligations, duties and responsibilities.
Upon a successor's acceptance of appointment as such, the Master
Servicer shall notify by mail the Trustee of such appointment.
Section 9.07. Compensation of the Master Servicer. As compensation
for its activities under this Agreement, the Master Servicer shall be entitled
to the investment income earned on amounts in the Master Servicer Account
during the Master Servicer Float Period.
Section 9.08. Merger or Consolidation. Any Person into which the
Master Servicer may be merged or consolidated, or any Person resulting from
any merger, conversion, other change in form or consolidation to which the
Master Servicer shall be a party, or any Person succeeding to the business of
the Master Servicer, shall be the successor to the Master Servicer hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided, however, that the successor or resulting Person to the Master
Servicer shall (i) be a Person (or have an
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Affiliate) that is qualified and approved to service mortgage loans for Xxxxxx
Xxx and FHLMC (provided further that a successor Master Servicer that
satisfies subclause (i) through an Affiliate agrees to service the Mortgage
Loans in accordance with all applicable Xxxxxx Mae and FHLMC guidelines) and
(ii) have a net worth of not less than $25,000,000.
Section 9.09. Resignation of the Master Servicer. Except as
otherwise provided in Sections 9.08 and 9.10 hereof, the Master Servicer shall
not resign from the obligations and duties hereby imposed on it unless the
Master Servicer's duties hereunder are no longer permissible under applicable
law or are in material conflict by reason of applicable law with any other
activities carried on by it and cannot be cured. Any such determination
permitting the resignation of the Master Servicer shall be evidenced by an
Opinion of Counsel that shall be independent to such effect delivered to the
Trustee. No such resignation shall become effective until the Trustee shall
have assumed, or a successor master servicer satisfactory to the Trustee and
the Depositor shall have assumed, the Master Servicer's responsibilities and
obligations under this Agreement. Notice of such resignation shall be given
promptly by the Master Servicer and the Depositor to the Trustee.
At least fifteen (15) calendar days prior to the effective date of
such resignation, the Master Servicer shall provide written notice to the
Depositor of any successor pursuant to this Section.
Section 9.10. Assignment or Delegation of Duties by the Master
Servicer. Except as expressly provided herein, the Master Servicer shall not
assign or transfer any of its rights, benefits or privileges hereunder to any
other Person, or delegate to or subcontract with, or authorize or appoint any
other Person to perform any of the duties, covenants or obligations to be
performed by the Master Servicer; provided, however, that the Master Servicer
shall have the right with the prior written consent of the Depositor (which
shall not be unreasonably withheld or delayed), and upon delivery to the
Trustee and the Depositor of a letter from each Rating Agency to the effect
that such action shall not result in a downgrade of the ratings assigned to
any of the Certificates, to delegate or assign to or subcontract with or
authorize or appoint any qualified Person to perform and carry out any duties,
covenants or obligations to be performed and carried out by the Master
Servicer hereunder. Notice of such permitted assignment shall be given
promptly by the Master Servicer to the Depositor and the Trustee. If, pursuant
to any provision hereof, the duties of the Master Servicer are transferred to
a successor master servicer, the entire compensation payable to the Master
Servicer pursuant hereto shall thereafter be payable to such successor master
servicer but in no event shall the fee payable to the successor master
servicer exceed that payable to the predecessor master servicer.
Section 9.11. Limitation on Liability of the Master Servicer.
Neither the Master Servicer nor any of the directors, officers, employees or
agents of the Master Servicer shall be under any liability to the Trustee,
Securities Administrator, the Servicers or the Certificateholders for any
action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, or for errors in judgment; provided, however, that
this provision shall not protect the Master Servicer or any such person
against any liability that would otherwise be imposed by reason of willful
malfeasance, bad faith or negligence in the performance of its duties or by
reason of reckless disregard for its obligations and duties under this
Agreement. The Master Servicer and any director, officer, employee or agent of
the Master
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Servicer may rely in good faith on any document prima facie properly executed
and submitted by any Person respecting any matters arising hereunder. The
Master Servicer shall be under no obligation to appear in, prosecute or defend
any legal action that is not incidental to its duties as Master Servicer with
respect to the Mortgage Loans under this Agreement and that in its opinion may
involve it in any expenses or liability; provided, however, that the Master
Servicer may in its sole discretion undertake any such action that it may deem
necessary or desirable in respect to this Agreement and the rights and duties
of the parties hereto and the interests of the Certificateholders hereunder.
In such event, the legal expenses and costs of such action and any liability
resulting therefrom, shall be liabilities of the Trust, and the Master
Servicer shall be entitled to be reimbursed therefor out of the Master
Servicer Account in accordance with the provisions of Section 9.07 and Section
9.12.
The Master Servicer shall not be liable for any acts or omissions of
any Servicer except to the extent that damages or expenses are incurred as a
result of such act or omissions and such damages and expenses would not have
been incurred but for the negligence, willful malfeasance, bad faith or
recklessness of the Master Servicer in supervising, monitoring and overseeing
the obligations of the Servicers as required under the Agreement.
Section 9.12. Indemnification; Third Party Claims. The Master
Servicer agrees to indemnify the Depositor, Securities Administrator and the
Trustee, and hold them harmless against any and all claims, losses, penalties,
fines, forfeitures, legal fees and related costs, judgments, and any other
costs, liability, fees and expenses that the Depositor, the Securities
Administrator or the Trustee may sustain as a result of the Master Servicer's
willful malfeasance, bad faith or negligence in the performance of its duties
hereunder or by reason of its reckless disregard for its obligations and
duties under this Agreement. The Depositor, Securities Administrator, the
Servicer, and the Trustee shall immediately notify the Master Servicer if a
claim is made by a third party with respect to this Agreement or the Mortgage
Loans which would entitle the Depositor, the Servicer or the Trustee to
indemnification under this Section 9.12, whereupon the Master Servicer shall
assume the defense of any such claim and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against it or them in respect of such
claim.
The Master Servicer agrees to indemnify and hold harmless the
Trustee from and against any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments, and any other costs,
liability, fees and expenses (including reasonable attorneys' fees) that the
Trustee may sustain as a result of such liability or obligations of the Master
Servicer and in connection with the Trustee's assumption (not including the
Trustee's performance, except to the extent that costs or liability of the
Trustee are created or increased as a result of negligent or wrongful acts or
omissions of the Master Servicer prior to its replacement as Master Servicer)
of the Master Servicer's obligations, duties or responsibilities under such
agreement.
The Trust will indemnify the Master Servicer and hold it harmless
against any and all claims, losses, penalties, fines, forfeitures, legal fees
and related costs, judgments, and any other costs, liabilities, fees and
expenses that the Master Servicer may incur or sustain in connection with,
arising out of or related to this Agreement, the Servicing Agreements, the
Sale Agreements, the Step 2 Assignment Agreements or the Certificates, except
to the extent that any such loss, liability or expense is related to (i) a
material breach of the Master Servicer's
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representations and warranties in this Agreement or (ii) the Master Servicer's
willful malfeasance, bad faith or negligence or by reason of its reckless
disregard of its duties and obligations under any such agreement; provided
that any such loss, liability or expense constitutes an "unanticipated expense
incurred by the REMIC" within the meaning of Treasury Regulations Section
1.860G-1(b)(3)(ii). The Master Servicer shall be entitled to reimbursement for
any such indemnified amount from funds on deposit in the Distribution Account.
ARTICLE X
CONCERNING THE SECURITIES ADMINISTRATOR
Section 10.01. Duties of the Securities Administrator. The
Securities Administrator shall undertake to perform such duties and only such
duties as are specifically set forth in this Agreement.
The Securities Administrator, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Securities Administrator that are specifically
required to be furnished pursuant to any provision of this Agreement shall
examine them to determine whether they are in the form required by this
Agreement; provided, however, that the Securities Administrator shall not be
responsible for the accuracy or content of any such resolution, certificate,
statement, opinion, report, document, order or other instrument. If any such
instrument is found not to conform in any material respect to the requirements
of this Agreement, the Securities Administrator shall notify the
Certificateholders of such non conforming instrument in the event the
Securities Administrator, after so requesting, does not receive a
satisfactorily corrected instrument.
No provision of this Agreement shall be construed to relieve the
Securities Administrator from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct; provided, however,
that:
(i) the duties and obligations of the Securities Administrator shall
be determined solely by the express provisions of this Agreement, the
Securities Administrator shall not be liable except for the performance
of such duties and obligations as are specifically set forth in this
Agreement, no implied covenants or obligations shall be read into this
Agreement against the Securities Administrator and the Securities
Administrator may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Securities Administrator and
conforming to the requirements of this Agreement which it believed in
good faith to be genuine and to have been duly executed by the proper
authorities respecting any matters arising hereunder;
(ii) the Securities Administrator shall not be liable for an error
of judgment made in good faith by a Responsible Officer or Responsible
Officers of the Securities Administrator, unless it shall be conclusively
determined by a court of competent jurisdiction, such determination no
longer subject to appeal, that the Securities Administrator was negligent
in ascertaining the pertinent facts;
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(iii) the Securities Administrator shall not be liable with respect
to any action or inaction taken, suffered or omitted to be taken by it in
good faith in accordance with the direction of Holders of Certificates
evidencing not less than 25% of the Voting Rights of Certificates
relating to the time, method and place of conducting any proceeding for
any remedy available to the Securities Administrator, or exercising or
omitting to exercise any trust or power conferred upon the Securities
Administrator under this Agreement; and
(iv) the Securities Administrator shall not be accountable, shall
have no liability and makes no representation as to any acts or omissions
hereunder of the Master Servicer or the Trustee.
Section 10.02. Certain Matters Affecting the Securities
Administrator. Except as otherwise provided in Section 10.01:
(i) the Securities Administrator may request and conclusively rely
upon and shall be fully protected in acting or refraining from acting
upon any resolution, Officer's Certificate, certificate of auditors or
any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties and the Securities Administrator shall have no
responsibility to ascertain or confirm the genuineness of any signature
of any such party or parties;
(ii) the Securities Administrator may consult with counsel,
financial advisers or accountants and the advice of any such counsel,
financial advisers or accountants and any advice or Opinion of Counsel
shall be full and complete authorization and protection in respect of any
action taken or suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(iii) the Securities Administrator shall not be liable for any
action or inaction taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement;
(iv) the Securities Administrator shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document, unless
requested in writing so to do by Holders of Certificates evidencing not
less than 25% of the Voting Rights allocated to each Class of
Certificates; provided, however, that if the payment within a reasonable
time to the Securities Administrator of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Securities Administrator, not
reasonably assured to the Securities Administrator by the security
afforded to it by the terms of this Agreement, the Securities
Administrator may require reasonable indemnity against such expense or
liability as a condition to so proceeding. Nothing in this clause (iv)
shall derogate from the obligation of the Master Servicer to observe any
applicable law prohibiting disclosure of information regarding the
Mortgagors, provided that the Master Servicer shall have no liability for
disclosure required by this Agreement;
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(v) the Securities Administrator may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or a custodian and the Securities
Administrator shall not be responsible for any misconduct or negligence
on the part of any such agent, attorney or custodian appointed by the
Securities Administrator with due care;
(vi) the Securities Administrator shall not be required to risk or
expend its own funds or otherwise incur any financial liability in the
performance of any of its duties or in the exercise of any of its rights
or powers hereunder if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not assured to it, and none of the provisions contained in
this Agreement shall in any event require the Securities Administrator to
perform, or be responsible for the manner of performance of, any of the
obligations of the Master Servicer under this Agreement;
(vii) the Securities Administrator shall be under no obligation to
exercise any of the trusts, rights or powers vested in it by this
Agreement or to institute, conduct or defend any litigation hereunder or
in relation hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement, unless
such Certificateholders shall have offered to the Securities
Administrator reasonable security or indemnity satisfactory to the
Securities Administrator against the costs, expenses and liabilities
which may be incurred therein or thereby;
(viii) the Securities Administrator shall have no obligation to
appear in, prosecute or defend any legal action that is not incidental to
its duties hereunder and which in its opinion may involve it in any
expense or liability; provided, however, that the Securities
Administrator may in its discretion undertake any such action that it may
deem necessary or desirable in respect of this Agreement and the rights
and duties of the parties hereto and the interests of the Trustee, the
Securities Administrator and the Certificateholders hereunder. In such
event, the legal expenses and costs of such action and any liability
resulting therefrom shall be expenses, costs and liabilities of the Trust
Fund, and the Securities Administrator shall be entitled to be reimbursed
therefor out of the Collection Account; and
(ix) in no event shall the Securities Administrator be liable for
special, indirect or consequential damages.
The Securities Administrator shall have no duty (A) to see to any
recording, filing, or depositing of this Agreement or any agreement referred
to herein or any financing statement or continuation statement evidencing a
security interest, or to see to the maintenance of any such recording or
filing or depositing or to any rerecording, refiling or redepositing thereof,
(B) to see to the provision of any insurance or (C) to see to the payment or
discharge of any tax, assessment, or other governmental charge or any lien or
encumbrance of any kind owing with respect to, assessed or levied against, any
part of the Trust Fund other than from funds available in the Distribution
Account.
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Section 10.03. Securities Administrator Not Liable for Certificates
or Mortgage Loans. The recitals contained herein and in the Certificates shall
be taken as the statements of the Depositor or the Transferor, as the case may
be, and the Securities Administrator assumes no responsibility for their
correctness. The Securities Administrator makes no representations as to the
validity or sufficiency of this Agreement or of the Certificates or of any
Mortgage Loan or related document other than with respect to the Securities
Administrator's execution and authentication of the Certificates. The
Securities Administrator shall not be accountable for the use or application
by the Depositor or the Master Servicer of any funds paid to the Depositor or
the Master Servicer in respect of the Mortgage Loans or deposited in or
withdrawn from the Collection Account by the Depositor or the Master Servicer.
Section 10.04. Securities Administrator May Own Certificates. The
Securities Administrator in its individual or any other capacity may become
the owner or pledgee of Certificates and may transact business with the
parties hereto and their Affiliates with the same rights as it would have if
it were not the Securities Administrator.
Section 10.05. Securities Administrator's Fees and Expenses. The
Securities Administrator shall be entitled to the investment income earned on
amounts in the Distribution Account during the Securities Administrator Float
Period. The Securities Administrator and any director, officer, employee,
agent or "control person" within the meaning of the Securities Act of 1933, as
amended, and the Securities Exchange of 1934, as amended ("Control Person"),
of the Securities Administrator shall be indemnified by the Trust and held
harmless against any loss, liability or expense (including reasonable
attorney's fees) (i) incurred in connection with any claim or legal action
relating to (a) this Agreement, (b) the Mortgage Loans or (c) the
Certificates, other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of any of the
Securities Administrator's duties hereunder, (ii) incurred in connection with
the performance of any of the Securities Administrator's duties hereunder,
other than any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or negligence in the performance of any of the
Securities Administrator's duties hereunder or (iii) incurred by reason of any
action of the Securities Administrator taken at the direction of the
Certificateholders, provided that any such loss, liability or expense
constitutes an "unanticipated expense incurred by the REMIC" within the
meaning of Treasury Regulations Section 1.860G-1(b)(3)(ii). Such indemnity
shall survive the termination of this Agreement or the resignation or removal
of the Securities Administrator hereunder. Without limiting the foregoing, and
except for any such expense, disbursement or advance as may arise from the
Securities Administrator's negligence, bad faith or willful misconduct, or
which would not be an "unanticipated expense" within the meaning of the second
preceding sentence, the Securities Administrator shall be reimbursed by the
Trust for all reasonable expenses, disbursements and advances incurred or made
by the Securities Administrator in accordance with any of the provisions of
this Agreement with respect to: (A) the reasonable compensation and the
expenses and disbursements of its counsel not associated with the closing of
the issuance of the Certificates, (B) the reasonable compensation, expenses
and disbursements of any accountant, engineer, appraiser or other agent that
is not regularly employed by the Securities Administrator, to the extent that
the Securities Administrator must engage such Persons to perform acts or
services hereunder and (C) printing and engraving expenses in connection with
preparing any Definitive Certificates. The Trust shall fulfill its
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obligations under this paragraph from amounts on deposit from time to time in
the Distribution Account.
The Securities Administrator may retain or withdraw from the
Distribution Account, (i) the investment income earned on amounts in the
Distribution Account during the Master Servicer Float Period, (ii) amounts
necessary to reimburse it or the Master Servicer for any previously
unreimbursed Advances and any Advances the Master Servicer deems to be
non-recoverable from the related Mortgage Loan proceeds, (iii) an aggregate
annual amount to indemnify the Master Servicer and itself for amounts due in
accordance with this Agreement, and (iv) any other amounts which it or the
Master Servicer is entitled to receive hereunder for reimbursement,
indemnification or otherwise, including the amount to which the Securities
Administrator is entitled pursuant to Section 3.02 hereof. The Securities
Administrator shall be required to pay all expenses incurred by it in
connection with its activities hereunder and shall not be entitled to
reimbursement therefor except as provided in this Agreement.
Section 10.06. Eligibility Requirements for the Securities
Administrator. The Securities Administrator hereunder shall at all times be a
corporation or association organized and doing business under the laws the
United States of America or any state thereof, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000, subject to supervision or examination by federal or state
authority and with a credit rating of at least investment grade. If such
corporation or association publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section 10.06 the combined
capital and surplus of such corporation or association shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Securities Administrator shall
cease to be eligible in accordance with the provisions of this Section 10.06,
the Securities Administrator shall resign immediately in the manner and with
the effect specified in Section 10.07 hereof. The entity serving as Securities
Administrator may have normal banking and trust relationships with the
Depositor and its affiliates or the Trustee and its affiliates.
Any successor Securities Administrator (i) may not be an originator,
the Master Servicer, the Servicer, the Depositor or an affiliate of the
Depositor unless the Securities Administrator functions are operated through
an institutional trust department of the Securities Administrator, (ii) must
be authorized to exercise corporate trust powers under the laws of its
jurisdiction of organization, and (iii) must be rated at least "A/F1" by
Fitch, if Fitch is a Rating Agency and if rated by Fitch, or the equivalent
rating by S&P or Xxxxx'x. If no successor Securities Administrator shall have
been appointed and shall have accepted appointment within sixty (60) days
after the Securities Administrator ceases to be the Securities Administrator
pursuant to Section 10.07, then the Trustee may (but shall not be obligated
to) become the successor Securities Administrator. The Depositor shall appoint
a successor to the Securities Administrator in accordance with Section 10.07.
The Trustee shall notify the Rating Agencies of any change of Securities
Administrator.
Section 10.07. Resignation and Removal of the Securities
Administrator. The Securities Administrator may at any time resign by giving
written notice of resignation to the Depositor and the Trustee and each Rating
Agency not less than sixty (60) days before the date
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specified in such notice when, subject to Section 10.08, such resignation is
to take effect, and acceptance by a successor Securities Administrator in
accordance with Section 10.08 meeting the qualifications set forth in Section
10.06. If no successor Securities Administrator meeting such qualifications
shall have been so appointed by the Depositor and have accepted appointment
within thirty (30) days after the giving of such notice of resignation, the
resigning Securities Administrator may petition any court of competent
jurisdiction for the appointment of a successor Securities Administrator.
At least fifteen (15) calendar days prior to the effective date of
such resignation, the Securities Administrator shall provide written notice to
the Depositor of any successor pursuant to this Section 10.07.
If at any time (i) the Securities Administrator shall cease to be
eligible in accordance with the provisions of Section 10.06 hereof and shall
fail to resign after written request thereto by the Depositor, (ii) the
Securities Administrator shall become incapable of acting, or shall be
adjudged as bankrupt or insolvent, or a receiver of the Securities
Administrator or of its property shall be appointed, or any public officer
shall take charge or control of the Securities Administrator or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, (iii)(A) a tax is imposed with respect to the Trust Fund by any
state in which the Securities Administrator or the Trust Fund is located and
(B) the imposition of such tax would be avoided by the appointment of a
different Securities Administrator, or (iv) the Securities Administrator fails
to comply with its obligations under Article XIII and such failure is not
remedied within the lesser of ten (10) calendar days or such period in which
the applicable Exchange Act Report can be filed timely (without taking into
account any extensions), then, in the case of clauses (i) through (iv), the
Depositor may remove the Securities Administrator and appoint a successor
Securities Administrator by written instrument, in triplicate, one copy of
which instrument shall be delivered to the Securities Administrator so
removed, one copy of which shall be delivered to the Master Servicer and one
copy to the successor Securities Administrator.
The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Securities Administrator and appoint a
successor Securities Administrator by written instrument or instruments, in
triplicate, signed by such Holders or their attorneys in fact duly authorized,
one complete set of which instruments shall be delivered by the successor
Securities Administrator to the Trustee, one complete set to the Securities
Administrator so removed and one complete set to the successor so appointed.
Notice of any removal of the Securities Administrator shall be given to each
Rating Agency by the successor Securities Administrator.
Any resignation or removal of the Securities Administrator and
appointment of a successor Securities Administrator pursuant to any of the
provisions of this Section 10.07 shall become effective upon acceptance by the
successor Securities Administrator of appointment as provided in Section 10.08
hereof.
Section 10.08. Successor Securities Administrator. Any successor
Securities Administrator (which may be the Trustee) appointed as provided in
Section 10.07 hereof shall execute, acknowledge and deliver to the Depositor
and to its predecessor Securities
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Administrator and the Trustee an instrument accepting such appointment
hereunder and thereupon the resignation or removal of the predecessor
Securities Administrator shall become effective and such successor Securities
Administrator, without any further act, deed or conveyance, shall become fully
vested with all the rights, powers, duties and obligations of its predecessor
hereunder, with the like effect as if originally named as Securities
Administrator herein. The Depositor, the Trustee, the Master Servicer and the
predecessor Securities Administrator shall execute and deliver such
instruments and do such other things as may reasonably be required for more
fully and certainly vesting and confirming in the successor Securities
Administrator all such rights, powers, duties, and obligations.
No successor Securities Administrator shall accept appointment as
provided in this Section 10.08 unless at the time of such acceptance such
successor Securities Administrator shall be eligible under the provisions of
Section 10.06 hereof and its appointment shall not adversely affect the then
current rating of the Certificates, as confirmed in writing by each Rating
Agency and has provided to the Depositor in writing and in form and substance
reasonably satisfactory to the Depositor, all information reasonably requested
by the Depositor in order to comply with its reporting obligation under Item
6.02 of Form 8-K with respect to a replacement Securities Administrator.
Upon acceptance by a successor Securities Administrator of
appointment as provided in this Section 10.08, the Depositor shall mail notice
of the succession of such Securities Administrator hereunder to all Holders of
Certificates. If the Depositor fails to mail such notice within ten (10) days
after acceptance by the successor Securities Administrator of appointment, the
successor Securities Administrator shall cause such notice to be mailed at the
expense of the Depositor.
Section 10.09. Merger or Consolidation of the Securities
Administrator. Any corporation or other entity into which the Securities
Administrator may be merged or converted or with which it may be consolidated
or any corporation or other entity resulting from any merger, conversion or
consolidation to which the Securities Administrator shall be a party, or any
corporation or other entity succeeding to the business of the Securities
Administrator, shall be the successor of the Securities Administrator
hereunder, provided that such corporation or other entity shall be eligible
under the provisions of Section 10.06 hereof, without the execution or filing
of any paper or further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
Section 10.10. Assignment or Delegation of Duties by the Securities
Administrator. Except as expressly provided herein, the Securities
Administrator shall not assign or transfer any of its rights, benefits or
privileges hereunder to any other Person, or delegate to or subcontract with,
or authorize or appoint any other Person to perform any of the duties,
covenants or obligations to be performed by the Securities Administrator;
provided, however, that the Securities Administrator shall have the right with
the prior written consent of the Depositor (which shall not be unreasonably
withheld or delayed), and upon delivery to the Trustee and the Depositor of a
letter from each Rating Agency to the effect that such action shall not result
in a downgrade of the ratings assigned to any of the Certificates, to delegate
or assign to or subcontract with or authorize or appoint any qualified Person
to perform and carry out any duties, covenants or obligations to be performed
and carried out by the Securities Administrator
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hereunder. Notice of such permitted assignment shall be given promptly by the
Securities Administrator to the Depositor and the Trustee. If, pursuant to any
provision hereof, the duties of the Securities Administrator are transferred
to a successor securities administrator, the entire compensation payable to
the Securities Administrator pursuant hereto shall thereafter be payable to
such successor securities administrator but in no event shall the fee payable
to the successor securities administrator exceed that payable to the
predecessor securities administrator.
ARTICLE XI
TERMINATION
Section 11.01. Termination upon Liquidation or Purchase of the
Mortgage Loans. Subject to Section 11.03, the obligations and responsibilities
of the Depositor, the Master Servicer, the Servicers, the Securities
Administrator and the Trustee created hereby with respect to the Trust Fund
shall terminate upon the earlier of: (a) Avelo, at its option, purchasing (the
"Avelo Call") (or, if Avelo is no longer acting as a Servicer of any of the
Mortgage Loans, the Depositor may request the Master Servicer to exercise its
option to conduct an Auction Call for the purchase of) the Mortgage Loans and
all other property of the Trust on a non-recourse basis with no
representations or warranties of any nature whatsoever and the sale of all of
the Property of the Trust Fund, on or after the Optional Termination Date. The
Master Servicer shall accommodate such request to conduct an Auction Call at
its sole discretion. The Property of the Trust Fund shall be sold by the
Trustee to the entity with the highest bid received by the Trustee from closed
bids solicited by the Master Servicer or its designee; provided that to
effectuate such sale, the Master Servicer or its designee shall have made
reasonable efforts to sell all of the property of the Trust Fund for its fair
market value in a commercially reasonable manner and on commercially
reasonable terms, which includes the good faith solicitation of competitive
bids to prospective purchasers that are recognized broker/dealers for assets
of this type and provided further that, (i) such sale price shall not be less
than the Par Value as certified by the Depositor, (ii) the Master Servicer
receives bids from no fewer than three prospective purchasers (which may
include the Majority Class X Certificateholder) and (iii) such sale price
shall be deposited with the Trustee prior to the Distribution Date following
the month in which such value is determined and (b) the later of (i) the
maturity or other liquidation (or any Advance with respect thereto) of the
last Mortgage Loan remaining in the Trust Fund and the disposition of all REO
Property and (ii) the distribution to Certificateholders of all amounts
required to be distributed to them pursuant to this Agreement. In no event
shall the trusts created hereby continue beyond the expiration of 21 years
from the death of the survivor of the descendants of Xxxxxx X. Xxxxxxx, the
late Ambassador of the United States to the Court of St. James's, living on
the date hereof.
The proceeds of the purchase or sale of such assets of the Trust
pursuant to the Avelo Call or the Auction Call described in Section 11.01
above (other than, with respect to any mortgage loan and the related property,
an amount equal to the excess, if any, of the amount in Section 11.01(a)(2)
over the sum of the amount in Section 11.01(a)(1) (such excess, the "Fair
Market Value Excess")) will be distributed to the holders of the Certificates
in accordance with Section 4.01. Any Fair Market Value Excess received in
connection with the purchase of the Mortgage Loans and REO Properties will be
distributed to the holders of the Class RC Certificates.
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Except to the extent provided above with regard to allocating any
Fair Market Value Excess to the holders of the Class RC Certificates, the
proceeds of such a purchase or sale will be treated as a prepayment of the
Mortgage Loans for purposes of distributions to Certificateholders.
Accordingly, the sale of the Mortgage Loans and the REO Properties as a result
of the exercise of the Avelo Call or the Auction Call will result in the final
distribution on the Certificates on that Distribution Date.
Section 11.02. Final Distribution on the Certificates. If, on any
Remittance Date, the Servicers notify the Securities Administrator 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 Securities
Administrator shall promptly send a Notice of Final Distribution to the
applicable Certificateholders. If either Avelo or the Master Servicer exercise
their respective option to terminate the Trust Fund pursuant to clause (a) of
Section 11.01, by no later than the 10th day of the month of the final
distribution, the Master Servicer, pursuant to the applicable Step 2
Assignment Agreements, shall notify the Trustee, each Servicer and the
Securities Administrator of the final Distribution Date and of the applicable
sale price of the Mortgage Loans and REO Properties.
A Notice of Final Distribution, specifying the Distribution Date on
which Certificateholders may surrender their Certificates for payment of the
final distribution and cancellation, shall be given promptly by the Securities
Administrator by letter to Certificateholders mailed not later than the 15th
day of the month of such final distribution. Any such Notice of Final
Distribution shall specify (a) the Distribution Date upon which final
distribution on the Certificates will be made upon presentation and surrender
of Certificates at the office therein designated, (b) the amount of such final
distribution, (c) the location of the office or agency at which such
presentation and surrender must be made, and (d) that the Record Date
otherwise applicable to such Distribution Date is not applicable,
distributions being made only upon presentation and surrender of the
Certificates at the office therein specified. The Securities Administrator
will give such Notice of Final Distribution to each Rating Agency at the time
such Notice of Final Distribution is given to Certificateholders.
In the event the Mortgage Loans (and REO Properties) are purchased
or sold pursuant to Section 11.01 and pursuant to the applicable Step 2
Assignment Agreement, the Trustee is required thereunder to remit to the
Securities Administrator the applicable Termination Price on the applicable
Remittance Date immediately preceding the applicable final Distribution Date.
Upon such final deposit with respect to the Trust Fund and the receipt by the
Securities Administrator and the Custodians of a Request for Release therefor
in the form of Exhibit L, L-1, L-2 or L-3, as applicable, the Master Servicer
shall direct the Custodians to release and the relevant Custodians shall
promptly release to the Master Servicer or its designee the Custodial Files
for the Mortgage Loans.
Upon presentation and surrender of the Certificates, the Securities
Administrator shall cause to be distributed to the Certificateholders of each
Class (after reimbursement of all amounts due the Depositor, the Trustee and
the Custodians hereunder), in each case on the final Distribution Date and in
the order set forth in Section 4.01, 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
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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 4.01, and (ii) as to the Residual Certificates, the amount, if any,
which remains on deposit in the Distribution Account after application
pursuant to clause (i) above (other than the amounts retained to meet claims).
The foregoing provisions are intended to distribute to each Class of Regular
Certificates any accrued and unpaid interest and principal to which they are
entitled based on the Pass-Through Rates and actual Class Certificate Balances
or notional principal balances set forth in the Preliminary Statement upon
liquidation of the Trust Fund.
In the event that any affected Certificateholder shall not surrender
Certificates for cancellation within six months after the date specified in
the above mentioned written notice, the Securities Administrator shall give a
second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within six months after the second notice all the applicable
Certificates shall not have been surrendered for cancellation, the Securities
Administrator may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of the
funds and other assets which remain a part of the Trust Fund. If within one
year after the second notice all Certificates shall not have been surrendered
for cancellation, the Class R Certificateholders shall be entitled to all
unclaimed funds and other assets of the Trust Fund which remain subject
hereto.
Section 11.03. Additional Termination Requirements. In the event the
Avelo Call or the Auction Call is exercised as provided in Section 11.01, the
Trust Fund shall be terminated in accordance with the following additional
requirements, unless the Trustee and the Securities Administrator have been
supplied with an Opinion of Counsel, at the expense of the Master Servicer, to
the effect that the failure to comply with the requirements of this Section
11.03 will not (i) result in the imposition of taxes on "prohibited
transactions" on any Trust REMIC as defined in Section 860F of the Code, or
(ii) cause any Trust REMIC to fail to qualify as a REMIC at any time that any
Certificates are outstanding:
(a) The Securities Administrator on behalf of the Trustee shall sell
all of the assets of the Trust Fund to the entity with the highest bid
received pursuant to the Auction Call and, by the next Distribution Date after
such sale, shall distribute to the Certificateholders the proceeds of such
sale in complete liquidation of each of the Trust REMICs;
(b) The Securities Administrator on behalf of the Trustee shall sell
all of the assets of the Trust Fund to the Master Servicer and, by the next
Distribution Date after such sale, shall distribute to the Certificateholders
the proceeds of such sale in complete liquidation of each of the Trust REMICs;
and
(c) The Securities Administrator shall attach a statement to the
final federal income tax return for each of the Trust REMICs stating that
pursuant to Treasury Regulations Section 1.860F-1, the first day of the ninety
(90) day liquidation period for each such Trust REMIC was the date on which
the Securities Administrator on behalf of the Trustee sold the assets of the
Trust Fund to the to the entity with the highest bid received pursuant to the
Auction Call.
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ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01. Amendment. This Agreement may be amended from time to
time by the Depositor, the Master Servicer, the Securities Administrator, the
Custodians and the Trustee (and the Master Servicer may request an amendment
or consent to any amendment of a Servicing Agreement as directed by the
Depositor) without the consent of any of the Certificateholders (i) to cure
any ambiguity or mistake, (ii) to correct any defective provision herein or in
the applicable Servicing Agreement, or to supplement any provision in this
Agreement which may be inconsistent with any other provision herein or in the
applicable Servicing Agreement, (iii) to add to the duties of the Depositor,
or the Trustee (or with respect to the applicable Servicing Agreement, of the
applicable Servicer) the Master Servicer, the Securities Administrator or the
Custodians, (iv) to add any other provisions with respect to matters or
questions arising hereunder or under the applicable Servicing Agreement, or
(v) to modify, alter, amend, add to or rescind any of the terms or provisions
contained in this Agreement or in the applicable Servicing Agreement; provided
that any action pursuant to clause (iv) or (v) above shall not, as evidenced
by an Opinion of Counsel (which Opinion of Counsel shall be an expense of the
requesting party, but in any case shall not be an expense of the Trustee, the
Master Servicer, the Securities Administrator, the Custodians or the Trust
Fund), adversely affect in any material respect the interests of any
Certificateholder; provided, further, that the amendment shall not be deemed
to adversely affect in any material respect the interests of the
Certificateholders if the Person requesting the amendment obtains a letter
from each Rating Agency stating that the amendment would not result in the
downgrading or withdrawal of the respective ratings then assigned to the
Certificates; it being understood and agreed that any such letter in and of
itself will not represent a determination as to the materiality of any such
amendment and will represent a determination only as to the credit issues
affecting any such rating. The Trustee, the Depositor, the Custodians, the
Securities Administrator and the Master Servicer also may at any time and from
time to time amend this Agreement (and the Master Servicer shall request the
Servicers amend the applicable Servicing Agreements), 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 and the Master Servicer have 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 Master Servicer, the Custodians, the Securities Administrator
and the Trustee (and the Master Servicer shall consent to any amendment to the
applicable Servicing Agreement as directed by the Depositor) with the consent
of the Holders of Certificates evidencing Percentage Interests aggregating not
less than 66 2/3% of each Class of Certificates affected thereby for the purpose
of adding any provisions to or changing in any manner or eliminating any of
the provisions of this
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Agreement or of modifying in any manner the rights of the Holders of
Certificates; provided, however, that no such amendment shall (i) reduce in
any manner the amount of, or delay the timing of, payments required to be
distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) adversely affect in any material respect the interests of
the Holders of any Class of Certificates in a manner other than as described
in clause (i), without the consent of the Holders of Certificates of such
Class evidencing, as to such Class, Percentage Interests aggregating not less
than 66 2/3%, or (iii) reduce the aforesaid percentages of Certificates the
Holders of which are required to consent to any such amendment, without the
consent of the Holders of all such Certificates then outstanding.
Notwithstanding any contrary provision of this Agreement, the
Trustee and the Master Servicer shall not consent to any amendment to this
Agreement or any Servicing Agreement unless (i) each shall have first received
an Opinion of Counsel, which opinion shall not be an expense of the Trustee,
the Master Servicer 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 and the Master Servicer) of such amendment,
stating the provisions of the Agreement to be amended.
Notwithstanding the foregoing provisions of this Section 12.01, with
respect to any amendment that significantly modifies the permitted activities
of the Trustee or a Servicer under the applicable Servicing Agreement, any
Certificate beneficially owned by the Depositor or any of its Affiliates or by
the Responsible Party or any of its Affiliates shall be deemed not to be
outstanding (and shall not be considered when determining the percentage of
Certificateholders consenting or when calculating the total number of
Certificates entitled to consent) for purposes of determining if the requisite
consents of Certificateholders under this Section 12.01 have been obtained.
Promptly after the execution of any amendment to this Agreement or
any Servicing 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 12.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject
to such reasonable regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee, the Custodians,
the Master Servicer or the Securities Administrator 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, the Custodians, the Master Servicer, the Securities
Administrator or the Trust Fund), satisfactory to the Trustee, the Master
Servicer or the Securities Administrator, as applicable, that (i) such
amendment is permitted and is not prohibited by this Agreement or the
applicable Servicing Agreement and that all
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requirements for amending this Agreement or such Servicing Agreement have been
complied with; and (ii) either (A) the amendment does not adversely affect in
any material respect the interests of any Certificateholder or (B) the
conclusion set forth in the immediately preceding clause (A) is not required
to be reached pursuant to this Section 12.01.
Notwithstanding the Trustee's consent to, or the Master Servicer's
request for, any amendment of any Servicing Agreement pursuant to the terms of
this Section 12.01, such Servicing Agreement cannot be amended without the
consent of the applicable Servicer. Neither the Master Servicer nor the
Trustee shall be responsible for any failure by such Servicer to consent to
any amendment to the applicable Servicing Agreement.
Section 12.02. Recordation of Agreement; Counterparts. This
Agreement is subject to recordation in all appropriate public offices for real
property records in all the counties or other comparable jurisdictions in
which any or all of the properties subject to the Mortgages are situated, and
in any other appropriate public recording office or elsewhere, such
recordation shall be effected by the Trustee at the expense of the Trust, but
only if an Opinion of Counsel to the effect that such recordation materially
and beneficially affects the interests of the Certificateholders is delivered
to the Trustee.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one
and the same instrument.
Section 12.03. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO AND THE
CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 12.04. Intention of Parties. It is the express intent of the
parties hereto that the conveyance (i) of the Mortgage Loans by the Depositor
and (ii) of the Trust Fund by the Depositor to the Trustee each be, and be
construed as, an absolute sale thereof. It is, further, not the intention of
the parties that such conveyances be deemed a pledge thereof. However, in the
event that, notwithstanding the intent of the parties, such assets are held to
be the property of the Depositor, or if for any other reason this Agreement is
held or deemed to create a security interest in either of 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
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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 12.05. Notices. (a) The Securities Administrator shall use
its best efforts to promptly provide notice to each Rating Agency with respect
to each of the following of which it has actual knowledge:
(i) Any material change or amendment to this Agreement;
(ii) The occurrence of any Event of Default that has not been cured;
(iii) The resignation or termination of a Servicer, Master Servicer,
Securities Administrator or the Trustee and the appointment of any
successor;
(iv) The repurchase or substitution of Mortgage Loans pursuant to
this Agreement or the Sale Agreements; and
(v) The final payment to Certificateholders.
(b) In addition, the Securities Administrator shall promptly make
available on its internet website to each Rating Agency copies of the
following:
(i) Each report to Certificateholders described in Section 4.02.
(ii) The Servicer's annual statement of compliance and the
accountant's report described in the Servicing Agreements; and
(iii) Any notice of a purchase of a Mortgage Loan pursuant to this
Agreement and any Sale Agreement.
(c) 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 or GS Mortgage Securities Corp. or Xxxxxxx, Xxxxx &
Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Principal Finance
Group/Xxxxxxxxxxx X. Xxxxxxx and Asset Management Group/Senior Asset Manager,
or such other address as may be hereafter furnished to the Securities
Administrator by the Depositor in writing; (b) in the case of Avelo, Avelo
Mortgage, L.L.C., 000 X. Xxx Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx
00000, Attention: President and General Counsel, with a copy to Archon Group,
L.P., 000 X. Xxx Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, Attention:
General Counsel, or such other address as may be hereafter furnished to the
Depositor and the Securities Administrator by Avelo in writing; (c) in the
case of JPMorgan, JPMorgan Chase Bank, National Association, c/o Chase Home
Finance LLC, 00000 Xxxxxx Xxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxxxx, 00000,
Attention: Xxxxx Dunks, with a copy to JPMorgan Chase Bank, National
Association, 000 Xxxx Xxxxxx Xxxxx, Xxxxxx, Xxx Xxxxxx 00000, Attention:
General Counsel, or such other address as may be hereafter furnished to the
Depositor and the Securities Administrator by JPMorgan in writing; (d) in the
case of Countrywide Servicing, to Countrywide Home Loans Servicing LP, 0000
Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Investor Accounting, or
such other address as may be
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hereafter furnished to the Depositor and the Securities Administrator by
Countrywide in writing; (e) in the case of American Home, American Home
Mortgage Corp., 000 Xxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000, Attention:
Xxxx X. Xxxx, General Counsel, or such other address as may be hereafter
furnished to the Depositor and the Securities Administrator by American Home
in writing; (f) in the case of American Home Servicing, American Home Mortgage
Servicing, Inc., 0000 Xxxxxx Xxxx, Xxxxx 000, Xxxxxx, XX 00000, Attention:
Xxxxx Xxxxxxxx, Executive Vice President; (g) in the case of Xxxxx Fargo,
Xxxxx Fargo, N.A., 0000 Xxx Xxxxxxx Xxx, Xxxxxxxxx, Xxxxxxxx 00000, Attention:
GSAA 2006-6, or such other address as may be hereafter furnished to the
Depositor and the Securities Administrator by Xxxxx Fargo in writing; (h) in
the case of the Goldman Conduit, Xxxxxxx Xxxxx Mortgage Company, 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; (i) in the case of the Trustee or the
Securities Administrator to its Corporate Trust Office, or such other address
as the Trustee or the Securities Administrator may hereafter furnish to the
Depositor; (j) in the case of the Master Servicer, JPMorgan Chase Bank,
National Association, 0000 Xxxx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxxx Xxxx
00000-00000, Attention: GSAA 2006-6, or such other address as may be hereafter
furnished to the Depositor and the Securities Administrator by the Master
Servicer in writing; (k) in the case of Deutsche Bank, Deutsche Bank National
Trust Company, 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000,
Attention: Mortgage Custody - GS06AC; (l) in the case of JPMorgan as
Custodian, JPMorgan Chase Bank, National Association, 0000 Xxxxxxxxxx Xxxx.,
Xxxxx 000, Xxxxxx, Xxxxx 00000; (m) in the case of U.S. Bank, U.S. Bank
National Association, 0000 Xxxxxx Xxxxxx, Xxxxx 000, Xx. Xxxx, Xxxxxxxxx
00000, Attention: GSAA Home Equity Trust 2006-6; and (n) in the case of each
of the Rating Agencies, the address specified therefor in the definition
corresponding to the name of such Rating Agency. Notices to Certificateholders
shall be deemed given when mailed, first class postage prepaid, to their
respective addresses appearing in the Certificate Register.
Section 12.06. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement or of the
Certificates or the rights of the Holders thereof.
Section 12.07. 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.
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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 sixty (60) days after its receipt of such notice, request and offer of
indemnity shall have neglected or refused to institute any such action, suit
or proceeding; it being understood and intended, and being expressly
covenanted by each Certificateholder with every other Certificateholder and
the Trustee, that no one or more Holders of Certificates shall have any right
in any manner whatever by virtue or by availing itself or themselves of any
provisions of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of the Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder or to enforce any right
under this Agreement, except in the manner herein provided and for the common
benefit of all Certificateholders. For the protection and enforcement of the
provisions of this Section 12.07, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 12.08. 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 12.09. 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.
ARTICLE XIII
EXCHANGE ACT REPORTING
Section 13.01. Filing Obligations.
The Master Servicer, the Trustee, the Securities Administrator and
each Custodian shall reasonably cooperate with the Depositor and Securities
Administrator in connection with the satisfaction of the Depositor's reporting
requirements under the Exchange Act with respect to the Trust Fund. In
addition to the information specified below, if so requested by the Depositor
in writing for the purpose of satisfying its reporting obligation under the
Exchange Act, the Master Servicer, the Trustee, the Securities Administrator
and each Custodian shall (and the Master Servicer shall cause each Servicer
and subservicer to) provide the Depositor with (a) such
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information which is available to such Person without unreasonable effort or
expense and within such timeframe as may be reasonably requested by the
Depositor to comply with the Depositor's reporting obligations under the
Exchange Act and (b) to the extent such Person is a party (and the Depositor
is not a party) to any agreement or amendment required to be filed, copies of
such agreement or amendment in XXXXX-compatible form.
The Depositor agrees to promptly furnish to the Securities
Administrator, from time to time upon written request, such further
information, reports and financial statements within its control related to
the Trust Agreement and the Mortgage Loans as the Depositor reasonably deems
appropriate to prepare and file all necessary reports with the Commission.
Upon filing with the Commission, the Securities Administrator shall promptly
deliver to the Depositor a copy of any such reports.
Section 13.02. Form 10-D Filings.
(a) In accordance with the Exchange Act, the Securities
Administrator shall prepare for filing and file within fifteen (15) days after
each Distribution Date commencing February 2006 (subject to permitted
extensions under the Exchange Act and until a Form 15 is filed pursuant to
Section 13.06) with the Commission with respect to the Trust Fund, a Form 10-D
with copies of the Monthly Statement and, to the extent delivered to the
Securities Administrator, no later than ten (10) days following the
Distribution Date, such other information identified by the Depositor, to be
filed with the Commission (such other information, the "Additional Designated
Information"). If the Depositor directs that any Additional Designated
Information is to be filed with any Form 10-D, the Depositor shall specify the
Item on Form 10-D to which such information is responsive and, with respect to
any Exhibit to be filed on Form 10-D, the Exhibit number. Any information to
be filed on Form 10-D shall be delivered to the Securities Administrator in
XXXXX-compatible form or as otherwise agreed upon by the Securities
Administrator and the Depositor at the Depositor's expense, and any necessary
conversion to XXXXX-compatible format will be at the Depositor's expense. Upon
completion of each 10-D filing by the Securities Administrator, such 10-D
filing shall be submitted to the Depositor for approval. Upon receipt of
written notice via electronic mail to xxxxx@XXXxxxxx.xxx, from the Depositor
that the 10-D has been approved, the Securities Administrator shall attach to
such 10-D the signature page of the Depositor which has been previously
delivered by the Depositor to the Securities Administrator and submit such
10-D for filing with the Commission. At the reasonable request of, and in
accordance with the reasonable directions of, the Depositor, the Securities
Administrator shall prepare for filing and file an amendment to any Form 10-D
previously filed with the Commission with respect to the Trust Fund. The
Depositor shall sign the Form 10-D filed on behalf of the Trust Fund.
(b) No later than each Distribution Date, each of the Master
Servicer, the Securities Administrator and the Trustee shall, to the extent
they have knowledge, notify (and the Master Servicer shall cause any Servicer,
to the extent such Servicer is required to make such disclosure under its
Servicing Agreement, to notify) the Depositor of any Form 10-D Disclosure
Item, together with a description of any such Form 10-D Disclosure Item in
form and substance reasonably acceptable to the Depositor. In addition to such
information as the Master Servicer, the Securities Administrator and the
Trustee are obligated to provide pursuant to other provisions of this
Agreement, if so requested by the Depositor in writing, each of the Master
Servicer, the
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Securities Administrator and the Trustee shall provide such information which
is available to the Master Servicer, the Securities Administrator and the
Trustee, as applicable, without unreasonable effort or expense regarding the
performance or servicing of the Mortgage Loans as is reasonably required to
facilitate preparation of distribution reports in accordance with Item 1121 of
Regulation AB.
(c) The Securities Administrator shall not have any responsibility
to file any items (other than those generated by it) that have not been
received in a format suitable (or readily convertible into a format suitable)
for electronic filing via the XXXXX system and shall not have any
responsibility to convert any such items to such format (other than those
items generated by it or that are readily convertible to such format). The
Securities Administrator shall have no liability to the Certificateholders,
the Trust Fund, the Master Servicer or the Depositor with respect to any
failure to properly prepare or file any of Form 10-D to the extent that such
failure is not the result of any negligence, bad faith or willful misconduct
on its part.
Section 13.03. Form 8-K Filings.
The Depositor shall prepare, sign and file (via XXXXX) any Form 8-K
required by the Exchange Act and the Rules and Regulations of the Commission
thereunder. Each of the Master Servicer (and the Master Servicer shall cause
any Servicer to promptly notify), the Securities Administrator and the Trustee
shall promptly notify the Depositor, but in no event later than one (1)
Business Day after its occurrence, of any Reportable Event, applicable to it,
of which a Responsible Officer of such entity has actual knowledge.
Section 13.04. Form 10-K Filings.
Prior to March 30th of each year, commencing in 2007 (or such
earlier date as may be required by the Exchange Act and the Rules and
Regulations of the Commission and until a Form 15 is filed pursuant to Section
13.06), the Securities Administrator shall prepare and file on behalf of the
Trust Fund a Form 10-K, in form and substance as required by applicable law or
the Exchange Act. The Depositor shall sign each Form 10-K filed on behalf of
the Trust Fund. Such Form 10-K shall include as exhibits each (i) annual
statement of compliance described in the paragraph below, (ii) annual report
on assessments of compliance with servicing criteria described under Section
13.07 and (iii) accountant's report described under Section 13.07. Each Form
10-K shall also include any Xxxxxxxx-Xxxxx Certification required to be
included therewith, as described in Section 13.05. The Securities
Administrator shall have no liability with respect to any failure to properly
prepare or file such periodic reports resulting from or relating to the
Securities Administrator's inability or failure to obtain any information not
resulting from its own negligence, willful misconduct or bad faith.
The Master Servicer shall, and shall cause each Servicer to cause
any subservicer used by such Servicer to, deliver to the Depositor and the
Securities Administrator on or before March 15 of each year, commencing with
its 2007 fiscal year, an Officer's Certificate stating, as to the signer
thereof, that (i) a review of the activities of such Person during the
preceding calendar year (or applicable portion thereof) and of the performance
of the Master Servicer under this Agreement, or in the case of a Servicer or
subservicer, the applicable Servicing Agreement, has been made under such
officer's supervision and (ii) to the best of such officer's knowledge,
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based on such review, such Person has fulfilled all its obligations under this
Agreement, or in the case of a Servicer or subservicer, the applicable
Servicing Agreement, in all material respects throughout such year (or
applicable portion thereof), 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 Securities Administrator
shall forward a copy of each such statement to each Rating Agency. Copies of
such statement shall be provided by the Securities Administrator to any
Certificateholder upon written request, provided such statement is delivered
by the Master Servicer to the Securities Administrator.
No later than March 10 of each year, commencing in 2007, and until a
Form 15 is filed pursuant to Section 13.06, the Master Servicer, the
Securities Administrator and the Trustee shall notify (and the Master Servicer
shall cause any Servicer to notify) the Depositor of any Form 10-K Disclosure
Item, together with a description of any such Form 10-K Disclosure Item in
form and substance reasonably acceptable to the Depositor. Additionally, each
of the Master Servicer, the Securities Administrator and the Trustee shall
provide, and shall cause each Reporting Subcontractor retained by the Master
Servicer, the Securities Administrator or the Trustee, as applicable, and in
the case of the Master Servicer shall cause each Servicer, to provide, the
following information no later than March 10 of each year in which a Form 10-K
is required to be filed on behalf of the Trust Fund: (i) if such Person's
report on assessment of compliance with servicing criteria described under
Section 13.07 or related registered public accounting firm attestation report
described under Section 13.07 identifies any material instance of
noncompliance, notification of such instance of noncompliance and (ii) if any
such Person's report on assessment of compliance with servicing criteria or
related registered public accounting firm attestation report is not provided
to be filed as an exhibit to such Form 10-K, information detailing the
explanation why such report is not included.
Section 13.05. Xxxxxxxx-Xxxxx Certification.
Each Form 10-K shall include a certification (the "Xxxxxxxx-Xxxxx
Certification") required by Rules 13a-14(d) and 15d-14(d) under the Exchange
Act (pursuant to Section 302 of the Xxxxxxxx-Xxxxx Act of 2002 and the rules
and regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff)). No later than March 15 of
each year, beginning in 2007, the Master Servicer and the Securities
Administrator shall (unless such person is the Certifying Person), and the
Master Servicer shall cause each Servicer to, provide to the Person who signs
the Xxxxxxxx-Xxxxx Certification (the "Certifying Person") a certification
(each, a "Performance Certification"), in the form attached hereto as Exhibit
J-1 (in the case of the Master Servicer) and Exhibit J-2 (in the case of the
Securities Administrator), on which the Certifying Person, the entity for
which the Certifying Person acts as an officer, and such entity's officers,
directors and Affiliates (collectively with the Certifying Person,
"Certification Parties") can reasonably rely. The Depositor will not request
delivery of a certification under this clause unless the Depositor is required
under the Exchange Act to file an annual report on Form 10-K with respect to
the Trust Fund. In the event that prior to the filing date of the Form 10-K in
March of each year, the Securities Administrator or the Master Servicer has
actual knowledge of information material to the Xxxxxxxx-Xxxxx Certification,
the Securities Administrator or the Master Servicer, as the case may be, shall
promptly notify the Depositor. The respective parties hereto agree to
cooperate with all reasonable requests made by any Certifying Person or
Certification Party in connection with such Person's attempt to conduct any
113
due diligence that such Person reasonably believes to be appropriate in order
to allow it to deliver any Xxxxxxxx-Xxxxx Certification or portion thereof
with respect to the Trust Fund.
Section 13.06. Form 15 Filing.
Prior to January 30 of the first year in which the Securities
Administrator is able to do so under applicable law, the Securities
Administrator shall file a Form 15 relating to the automatic suspension of
reporting in respect of the Trust Fund under the Exchange Act.
Section 13.07. Report on Assessment of Compliance and Attestation.
(a) On or before March 15th of each calendar year, commencing in
2007:
(1) Each of the Master Servicer, the Securities Administrator and
the Custodians shall deliver to the Depositor and the Securities
Administrator a report regarding the Master Servicer's, the Securities
Administrator's or Custodians', as applicable, assessment of compliance
with the Servicing Criteria applicable to it during the immediately
preceding calendar year, as required under Rules 13a-18 and 15d-18 of the
Exchange Act and Item 1122 of Regulation AB; provided, however, the
Securities Administrator and Custodians shall deliver such report until a
Form 15 is filed pursuant to Section 13.06. Such report shall be signed
by an authorized officer of such Person and shall address each of the
Servicing Criteria applicable to it identified in Exhibit K hereto
delivered to the Depositor concurrently with the execution of this
Agreement. To the extent any of the Servicing Criteria so specified are
not applicable to such Person, with respect to asset-backed securities
transactions taken as a whole involving such Person and that are backed
by the same asset type backing the Certificates, such report shall
include such a statement to that effect. The Depositor and its respective
officers and directors shall be entitled to rely on upon each such
servicing criteria assessment.
(2) Each of the Master Servicer, the Securities Administrator and
the Custodians shall deliver to the Depositor, the Securities
Administrator and the Master Servicer a report of a registered public
accounting firm that attests to, and reports on, the assessment of
compliance made by Master Servicer, the Securities Administrator or the
Custodians, as applicable, and delivered pursuant to the preceding
paragraphs. Such attestation shall be in accordance with Rules 1-02(a)(3)
and 2-02(g) of Regulation S-X under the Securities Act and the Exchange
Act, including, without limitation that in the event that an overall
opinion cannot be expressed, such registered public accounting firm shall
state in such report why it was unable to express such an opinion. Such
report must be available for general use and not contain restricted use
language. To the extent any of the Servicing Criteria are not applicable
to such Person, with respect to asset-backed securities transactions
taken as a whole involving such Person and that are backed by the same
asset type backing the Certificates, such report shall include such a
statement to that effect.
114
(3) The Master Servicer shall cause each Servicer and Reporting
Subcontractor to deliver to the Depositor and the Securities
Administrator an assessment of compliance and accountant's attestation as
and when provided in paragraphs (a) and (b) of this Section 13.07.
(4) The Securities Administrator shall cause each Reporting
Subcontractor under its employ, if any, to deliver to the Depositor, the
Securities Administrator and the Master Servicer an assessment of
compliance and accountant's attestation as and when provided in
paragraphs (a) and (b) of this Section.
(b) Each assessment of compliance provided by the Securities
Administrator, the Master Servicer or the Custodians pursuant to Section
13.07(a)(2) shall address each of the Servicing Criteria applicable to it
specified on Exhibit K hereto delivered to the Depositor concurrently with the
execution of this Agreement or, in the case of a securities administrator,
master servicer or custodian subsequently appointed as such, on or prior to
the date of such appointment. An assessment of compliance provided by a
Subcontractor pursuant to Section 13.07(a)(3) or (4) need not address any
elements of the Servicing Criteria other than those specified pursuant to
Section 13.07(a)(1).
Section 13.08. Use of Subservicers and Subcontractors.
(a) The Master Servicer shall cause any subservicer used by the
Master Servicer and shall cause each Servicer to cause any subservicer used by
such servicer for the benefit of the Depositor to comply with the provisions
of this Article XIII to the same extent as if such Servicer or subservicer
were the Master Servicer (except with respect to the Master Servicer's duties
with respect to preparing and filing any Exchange Act Reports or as the
Certifying Person). The Master Servicer shall be responsible for obtaining
from each Servicer and subservicer and delivering to the Depositor any
servicer compliance statement required to be delivered by such Servicer or
subservicer pursuant to the second paragraph of Section 13.04, any assessment
of compliance and attestation required to be delivered by such Servicer or
subservicer under Section 13.07 and any certification required to be delivered
to the Certifying Person under Section 13.05 as and when required to be
delivered.
(b) It shall not be necessary for the Master Servicer, any Servicer,
any subservicer or the Securities Administrator to seek the consent of the
Depositor or any other party hereto to the utilization of any Subcontractor.
The Master Servicer or the Securities Administrator, as applicable, shall
promptly upon request provide to the Depositor (or any designee of the
Depositor, such as the Master Servicer or administrator) a written description
(in form and substance satisfactory to the Depositor) of the role and function
of each Subcontractor utilized by such Person (or in the case of the Master
Servicer, any Servicer or any subservicer), specifying (i) the identity of
each such Subcontractor, (ii) which (if any) of such Subcontractors are
"participating in the servicing function" within the meaning of Item 1122 of
Regulation AB, and (iii) which elements of the Servicing Criteria will be
addressed in assessments of compliance provided by each Subcontractor
identified pursuant to clause (ii) of this paragraph.
115
As a condition to the utilization of any Subcontractor determined to
be a Reporting Subcontractor, the Master Servicer or the Securities
Administrator, as applicable, shall cause any such Subcontractor used by such
Person (or in the case of the Master Servicer, any Servicer or any
subservicer) for the benefit of the Depositor to comply with the provisions of
Sections 13.07 of this Agreement to the same extent as if such Subcontractor
were the Master Servicer (except with respect to the Master Servicer's duties
with respect to preparing and filing any Exchange Act Reports or as the
Certifying Person) or the Securities Administrator, as applicable. The Master
Servicer or the Securities Administrator, as applicable, shall be responsible
for obtaining from each Subcontractor and delivering to the Depositor and the
Master Servicer, any assessment of compliance and attestation required to be
delivered by such Subcontractor under Section 13.07, in each case as and when
required to be delivered.
* * * * * * *
116
IN WITNESS WHEREOF, the parties hereto have caused their
names to be signed hereto by their respective officers thereunto duly
authorized as of the day and year first above written.
GS MORTGAGE SECURITIES CORP.
By: /s/ Xxxxxxxx Xxxx
-------------------------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
solely as Trustee and not in its
individual capacity
By: /s/ Xxxxxxxx X'Xxxxx-Xxxxxxx
-------------------------------------
Name: Xxxxxxxx X'Xxxxx-Xxxxxxx
Title: Vice President
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, as Master Servicer and
Securities Administrator
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
DEUTSCHE BANK NATIONAL TRUST
COMPANY, as a Custodian
By: /s/ Xxxxxx Xxxx
-------------------------------------
Name: Xxxxxx Xxxx
Title: Associate
Master Servicing Agreement
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, as a Custodian
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Vice President
U.S. BANK NATIONAL ASSOCIATION, as a
Custodian
By: /s/ Xxxx X. Xxxx
-------------------------------------
Name: Xxxx X. Xxxx
Title: Assistant Vice President
XXXXX FARGO BANK, N.A., as Custodian
By: /s/ Xxxx Xxxxx
-------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
Master Servicing Agreement
Solely for purposes of Sections 9.01(c), 9.03(b) and 11.01 accepted and agreed
to by:
AVELO MORTGAGE, L.L.C.
By: /s/ Xxxx Xxxxx
-------------------------------
Name: Xxxx Xxxxx
Title: Vice President
Master Servicing Agreement
SCHEDULE I
Mortgage Loan Schedule
[On File with the Securities Administrator as provided by the Depositor]
S-I-1
EXHIBIT A
FORM OF CLASS AV-1, CLASS AF-2, CLASS AF-3, CLASS AF-4, CLASS AF-5, CLASS
AF-6, CLASS AF-7, CLASS M-1, CLASS M-2, CLASS M-3, CLASS M-4,
CLASS M-5, CLASS M-6, CLASS B-1, CLASS B-2 AND
CLASS B-3 CERTIFICATES
IF THIS CERTIFICATE IS A BOOK-ENTRY CERTIFICATE, THE PROPOSED TRANSFEROR WILL
BE DEEMED TO HAVE MADE EACH OF THE CERTIFICATIONS SET FORTH IN THE TRANSFEROR
LETTER AND THE PROPOSED TRANSFEREE WILL BE DEEMED TO HAVE MADE EACH OF THE
CERTIFICATIONS SET FORTH IN THE RULE 144A LETTER, IN EACH CASE AS IF SUCH
CERTIFICATE WERE EVIDENCED BY A PHYSICAL CERTIFICATE.
IN THE EVENT THAT A TRANSFER OF A PRIVATE CERTIFICATE WHICH IS A BOOK-ENTRY
CERTIFICATE IS TO BE MADE IN RELIANCE UPON AN EXEMPTION FROM THE SECURITIES
ACT AND SUCH LAWS, IN ORDER TO ASSURE COMPLIANCE WITH THE SECURITIES ACT AND
SUCH LAWS, THE CERTIFICATEHOLDER DESIRING TO EFFECT SUCH TRANSFER WILL BE
DEEMED TO HAVE MADE AS OF THE TRANSFER DATE EACH OF THE CERTIFICATIONS SET
FORTH IN THE TRANSFEROR CERTIFICATE IN RESPECT OF SUCH CERTIFICATE AND THE
TRANSFEREE WILL BE DEEMED TO HAVE MADE AS OF THE TRANSFER DATE EACH OF THE
CERTIFICATIONS SET FORTH IN THE RULE 144A LETTER IN RESPECT OF SUCH
CERTIFICATE, IN EACH CASE AS IF SUCH CERTIFICATE WERE EVIDENCED BY A PHYSICAL
CERTIFICATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN
INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), AND CERTAIN
OTHER ASSETS.
A-1
Certificate No. :
Cut-off Date : April 1, 2006
First Distribution Date : May 25, 2006
Initial Certificate Balance of
this Certificate
("Denomination") :
Initial Certificate Balances of
all Certificates of this Class :
CUSIP
ISIN
A-2
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2006-6
Asset-Backed Certificates, Series 2006-6
[Class AV-1][Class AF-2][Class AF-3][Class AF-4][Class AF-5][Class AF-6]
[Class AF-7][Class M-1][Class M-2][Class M-3][Class M-4][Class M-5]
[Class M-6] [Class B-1][Class B-2][Class B-3]
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class.
Principal in respect of this Certificate is distributable monthly
as set forth herein. Accordingly, the Certificate Balance at any time may be
less than the Certificate Balance as set forth herein. This Certificate does
not evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Master Servicer, the Securities Administrator or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain
monthly distributions pursuant to a Master Servicing and Trust Agreement dated
as of the Cut-off Date specified above (the "Agreement") among GS Mortgage
Securities Corp., as depositor (the "Depositor"), U.S. Bank National
Association, as trustee (the "Trustee") and as a custodian, JPMorgan Chase
Bank, National Association, as Master Servicer (in such capacity, the "Master
Servicer") and Securities Administrator (in such capacity, the "Securities
Administrator") and as a custodian and Deutsche Bank National Trust Company,
as a custodian. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
* * *
A-3
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
JPMORGAN CHASE BANK,
NATIONAL ASSOCIATION,
not in its individual
capacity, but solely as
Securities Administrator
By:
------------------------
Authenticated:
By:
---------------------------------
Authorized Signatory of
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Securities Administrator
A-4
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2006-6
Asset-Backed Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAA Home Equity Trust 2006-6 Asset-Backed Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Distribution
Account for payment hereunder and that the Trustee is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the other parties to the Agreement.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
for each Distribution Date is the last Business Day of the applicable Interest
Accrual Period for the related Distribution Date; provided, however, that for
any Definitive Certificates, the Record Date shall be the last Business Day of
the month immediately preceding the month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer
of immediately available funds to the account of the Holder hereof at a bank
or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Securities Administrator in
writing at least five (5) Business Days prior to the related Record Date and
such Certificateholder shall satisfy the conditions to receive such form of
payment set forth in the Agreement, or, if not, by check mailed by first class
mail to the address of such Certificateholder appearing in the Certificate
Register. The final distribution on each Certificate will be made in like
manner, but only upon presentment and surrender of such Certificate at the
office designated by the Securities Administrator for such purposes, or such
other location specified in the notice to Certificateholders of such final
distribution.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of
the Trustee and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Trustee and the other parties to the Agreement
with the consent of the Holders of Certificates affected by such
A-5
amendment evidencing the requisite Percentage Interest, as provided in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof,
in certain limited circumstances, without the consent of the Holders of any of
the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Securities Administrator upon surrender of this
Certificate for registration of transfer at the office designated by the
Securities Administrator for such purposes, accompanied by a written
instrument of transfer in form satisfactory to the Securities Administrator
duly executed by the holder hereof or such holder's attorney duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in
the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Securities Administrator may require payment of
a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
The Trustee, the Depositor and the Securities Administrator and
any agent of the Trustee, the Depositor or the Securities Administrator may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Trustee, the
Securities Administrator, nor any such agent shall be affected by any notice
to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 11.01 of the Agreement
will have the option to effectuate the purchase, in whole, from the Trust Fund
all remaining Mortgage Loans and all property acquired in respect of the
Mortgage Loans at a purchase price determined and in the manner as provided in
the Agreement. The obligations and responsibilities created by this Agreement
will terminate as provided in Section 11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have
the meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
A-6
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
_____________________________________________________________________________.
Dated:
___________________________________________
Signature by or on behalf of assignor
A-7
DISTRIBUTION INSTRUCTIONS
-------------------------
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to________________________________________________,
______________________________________________________________________________,
for the account of ___________________________________________________________,
account number ______, or, if mailed by check, to ____________________________.
Applicable statements should be mailed to ____________________________________,
______________________________________________________________________________.
This information is provided by __________________________________,
the assignee named above, or _________________________________________________,
as its agent.
A-8
EXHIBIT B
FORM OF CLASS P CERTIFICATE
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFEROR
CERTIFICATE (THE "TRANSFEROR CERTIFICATE") IN THE FORM OF EXHIBIT H TO THE
AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE SECURITIES ADMINISTRATOR
RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED
TO HEREIN OR (II) THE TRUSTEE RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE
EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR EITHER A REPRESENTATION
LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN
SUBJECT TO APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR A PERSON INVESTING
ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN, OR IF THE TRANSFEREE IS AN
INSURANCE COMPANY AND THE CERTIFICATE HAS BEEN THE SUBJECT OF AN
ERISA-QUALIFYING UNDERWRITING, A REPRESENTATION LETTER THAT IT IS USING THE
ASSETS OF ITS GENERAL ACCOUNT AND THAT THE PURCHASE AND HOLDING OF THIS
CERTIFICATE SATISFY THE REQUIREMENTS FOR EXEMPTIVE RELIEF UNDER SECTIONS I AND
III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, OR AN OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE, THE SECURITIES ADMINISTRATOR AND THE DEPOSITOR,
TO THE EFFECT THAT THE PURCHASE AND HOLDING OF THIS 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 MASTER SERVICER, THE DEPOSITOR OR THE SECURITIES ADMINISTRATOR TO
ANY OBLIGATION IN ADDITION TO THOSE EXPRESSLY UNDERTAKEN IN THIS AGREEMENT OR
TO ANY LIABILITY. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY
PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN SUBJECT TO TITLE I OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW
WITHOUT THE REPRESENTATION LETTER OR OPINION OF COUNSEL SATISFACTORY TO THE
SECURITIES ADMINISTRATOR AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
B-1
Certificate No. : 1
Cut-off Date : April 1, 2006
First Distribution Date : May 25, 2006
Percentage Interest of this
Certificate
("Denomination") : [_____]%
CUSIP :
ISIN :
B-2
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2006-6
Asset-Backed Certificates, Series 2006-6
Class P
evidencing a percentage interest in the distributions allocable to the
Certificates of the above referenced Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Certificate does not evidence an obligation
of, or an interest in, and is not guaranteed by the Depositor, the Master
Servicer, the Securities Administrator or the Trustee referred to below or any
of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
This certifies that [_______________________] is the registered
owner of the Percentage Interest evidenced by this Certificate (obtained by
dividing the denomination of this Certificate by the aggregate of the
denominations of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions pursuant to a Master Servicing and
Trust Agreement dated as of the Cut-off Date specified above (the "Agreement")
among GS Mortgage Securities Corp., as depositor (the "Depositor"), U.S. Bank
National Association, as trustee (the "Trustee"), JPMorgan Chase Bank,
National Association, as Master Servicer (in such capacity, the "Master
Servicer") and Securities Administrator (in such capacity, the "Securities
Administrator"), Deutsche Bank National Trust Company, as a custodian and
JPMorgan Chase Bank, National Association, as a custodian. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
in the Agreement. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
This Certificate does not have a Pass-Through Rate and will be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the
Trust will be made only upon presentment and surrender of this Certificate at
the office designated by the Securities Administrator for such purposes or the
office or agency maintained by the Securities Administrator.
No transfer of a Certificate of this Class shall be made unless
such disposition is exempt from the registration requirements of the
Securities Act of 1933, as amended (the "1933 Act"), and any applicable state
securities laws or is made in accordance with the 1933 Act and such laws. In
the event of any such transfer, the Securities Administrator shall require the
transferor to execute a transferor certificate (in substantially the form
attached to the Agreement) and deliver either (i) a Rule 144A Letter, (in
substantially the form attached to the Agreement), or (ii) a written Opinion
of Counsel to the Securities Administrator that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the 1933 Act or is being made pursuant to the 1933 Act, which
Opinion of Counsel shall be an expense of the transferor. No transfer of a
Certificate of this Class shall be made unless the Securities Administrator
shall have received either (i) a representation letter from the transferee
B-3
of such Certificate, acceptable to and in form and substance satisfactory to
the Securities Administrator, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA or Section 4975 of the
Code or any materially similar provisions of applicable federal, state or
local law ("Similar Law") or a person acting on behalf of or investing plan
assets of any such plan, which representation letter shall not be an expense
of the Securities Administrator, or (ii) if the transferee is an insurance
company and the certificate has been the subject of an ERISA-Qualifying
Underwriting, a representation letter that it is purchasing such Certificates
with the assets of its general account and that the purchase and holding of
such Certificates satisfy the requirements for exemptive relief under Sections
I and III of PTCE 95-60, or (iii) in the case of a Certificate presented for
registration in the name of an employee benefit plan subject to ERISA, or a
plan or arrangement subject to Section 4975 of the Code (or comparable
provisions of any subsequent enactments) or a plan subject to Similar Law, or
a trustee of any such plan or any other person acting on behalf of any such
plan or arrangement or using such plan's or arrangement's assets, an Opinion
of Counsel satisfactory to the Securities Administrator, which Opinion of
Counsel shall not be an expense of the Securities Administrator, the
Depositor, the Trustee or the Trust Fund, addressed to the Securities
Administrator, the Trustee and the Depositor to the effect that the purchase
and holding of such Certificate will not constitute or result in a non-exempt
prohibited transaction within the meaning of ERISA, Section 4975 of the Code
or any Similar Law and will not subject the Trustee to any obligation in
addition to those expressly undertaken in this Agreement or to any liability.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
* * *
B-4
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
not in its individual
capacity, but solely as
Securities Administrator
By:
----------------------------
Authenticated:
By:
-----------------------------------------
Authorized Signatory of
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, not in
its individual capacity,
but solely as Securities Administrator
B-5
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2006-6
Asset-Backed Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAA Home Equity Trust 2006-6 Asset-Backed Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Distribution
Account for payment hereunder and that the Trustee is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the other parties to the Agreement.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (the "Distribution Date"), commencing
on the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
for each Distribution Date is the last Business Day of the month immediately
preceding the month in which such Distribution Date occurs.
Distributions on this Certificate shall be made by wire transfer
of immediately available funds to the account of the Holder hereof at a bank
or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Securities Administrator in
writing at least five (5) Business Days prior to the related Record Date and
such Certificateholder shall satisfy the conditions to receive such form of
payment set forth in the Agreement, or, if not, by check mailed by first class
mail to the address of such Certificateholder appearing in the Certificate
Register. The final distribution on each Certificate will be made in like
manner, but only upon presentment and surrender of such Certificate at the
office designated by the Securities Administrator for such purposes or such
other location specified in the notice to Certificateholders of such final
distribution.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of
the Trustee and the rights of the Certificateholders under the Agreement at
any time by the Trustee and the other parties to the Agreement with the
consent of the Holders of Certificates affected by such amendment evidencing
the requisite Percentage Interest, as provided in the Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future
B-6
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of
the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Securities Administrator upon surrender of this
Certificate for registration of transfer at the office designated by the
Securities Administrator for such purposes, accompanied by a written
instrument of transfer in form satisfactory to the Securities Administrator
duly executed by the holder hereof or such holder's attorney duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in
the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Securities Administrator may require payment of
a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
The Trustee, the Depositor and the Securities Administrator and
any agent of the Trustee, the Depositor or the Securities Administrator may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Trustee, the Depositor, the
Securities Administrator, nor any such agent shall be affected by any notice
to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 11.01 of the Agreement
will have the option to effectuate the purchase, in whole, from the Trust Fund
all remaining Mortgage Loans and all property acquired in respect of the
Mortgage Loans at a purchase price determined and in the manner as provided in
the Agreement. The obligations and responsibilities created by this Agreement
will terminate as provided in Section 11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have
the meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
B-7
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
______________________________________________________________________________.
Dated:
__________________________________________
Signature by or on behalf of assignor
B-8
DISTRIBUTION INSTRUCTIONS
-------------------------
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _______________________________________________,
______________________________________________________________________________,
for the account of ___________________________________________________________,
account number ______, or, if mailed by check, to ____________________________.
Applicable statements should be mailed to ____________________________________,
______________________________________________________________________________.
This information is provided by __________________________________,
the assignee named above, or _________________________________________________,
as its agent.
B-9
EXHIBIT C
FORM OF CLASS R, CLASS RC AND CLASS RX CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFER
AFFIDAVIT IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO
HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A REPRESENTATION LETTER TO
THE EFFECT THAT SUCH TRANSFEREE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A
PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO MATERIALLY
SIMILAR PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN, OR AN
OPINION OF COUNSEL AS DESCRIBED IN THE AGREEMENT. IN THE EVENT THAT SUCH
REPRESENTATION IS VIOLATED, OR ANY ATTEMPT IS MADE TO TRANSFER TO A PLAN OR
ARRANGEMENT SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO SECTION 4975 OF
THE CODE OR A PLAN SUBJECT TO SIMILAR LAW, OR A PERSON ACTING ON BEHALF OF ANY
SUCH PLAN OR ARRANGEMENT OR USING THE ASSETS OF ANY SUCH PLAN OR ARRANGEMENT
WITHOUT AN OPINION OF COUNSEL AS DESCRIBED IN THE AGREEMENT, SUCH ATTEMPTED
TRANSFER OR ACQUISITION SHALL BE VOID AND OF NO EFFECT.
Certificate No. : [R][RC][RX]
Cut-off Date : April 1, 2006
First Distribution Date : May 25, 2006
Initial Certificate Balance of this
Certificate ("Denomination") : $100
Initial Certificate Balance of all
Certificates of this Class: : $100
CUSIP :
ISIN :
C-1
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2006-6
Asset-Backed Certificates, Series 2006-6
Class [R] [RC][RX]
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class.
Principal in respect of this Certificate is distributable monthly
as set forth herein. Accordingly, the Certificate Balance at any time may be
less than the Certificate Balance as set forth herein. This Certificate does
not evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Master Servicer, the Securities Administrator or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that [____________] is the registered owner of the
Percentage Interest specified above of any monthly distributions due to the
Class [R][RC][RX] Certificates pursuant to a Master Servicing and Trust
Agreement dated as of the Cut-off Date specified above (the "Agreement") among
GS Mortgage Securities Corp., as depositor (the "Depositor"), U.S. Bank
National Association, as trustee (the "Trustee"), JPMorgan Chase Bank,
National Association, as Master Servicer (in such capacity, the "Master
Servicer") and Securities Administrator (in such capacity, the "Securities
Administrator"), Deutsche Bank National Trust Company, as a custodian and
JPMorgan Chase Bank, National Association, as a custodian. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
in the Agreement. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the
Trust Fund will be made only upon presentment and surrender of this Class
[R][RC][RX] Certificate at the office designated by the Securities
Administrator for such purposes.
No transfer of a Class [R][RC][RX] Certificate shall be made
unless the Securities Administrator shall have received a representation
letter from the transferee of such Certificate, acceptable to and in form and
substance satisfactory to the Securities Administrator, to the effect that
such transferee is not an employee benefit plan or arrangement subject to
Section 406 of ERISA, a plan or arrangement subject to Section 4975 of the
Code or a plan subject to Similar Law, or a person acting on behalf of any
such plan or arrangement or using the assets of any such plan or arrangement
to effect such transfer, which representation letter shall not be an expense
of the Securities Administrator or the Trust Fund, or, alternatively, an
opinion of counsel as described in the Agreement. In the event that such
representation is violated, or any attempt is made to transfer to a plan or
arrangement subject to Section 406 of ERISA or a plan subject to Section 4975
of the Code or a plan subject to Similar Law, or a person acting on behalf of
any such plan or arrangement or using the assets of any such plan or
arrangement, without an opinion
C-2
of counsel as described in the Agreement, such attempted transfer or
acquisition shall be void and of no effect.
Each Holder of this Class [R][RC][RX] Certificate shall be deemed
by the acceptance or acquisition an Ownership Interest in this Class
[R][RC][RX] Certificate to have agreed to be bound by the following
provisions, and the rights of each Person acquiring any Ownership Interest in
this Class [R][RC][RX] Certificate are expressly subject to the following
provisions: (i) each Person holding or acquiring any Ownership Interest in
this Class [R][RC][RX] Certificate shall be a Permitted Transferee and shall
promptly notify the Securities Administrator of any change or impending change
in its status as a Permitted Transferee, (ii) no Ownership Interest in this
Class [R][RC][RX] Certificate may be registered on the Closing Date or
thereafter transferred, and the Securities Administrator shall not register
the Transfer of this Certificate unless, in addition to the certificates
required to be delivered to the Securities Administrator under Section 5.02(b)
of the Agreement, the Securities Administrator shall have been furnished with
a Transfer Affidavit of the initial owner or the proposed transferee in the
form attached as Exhibit G to the Agreement, (iii) each Person holding or
acquiring any Ownership Interest in this Class [R][RC][RX] Certificate shall
agree (A) to obtain a Transfer Affidavit from any other Person to whom such
Person attempts to Transfer its Ownership Interest this Class [R][RC][RX]
Certificate, (B) to obtain a Transfer Affidavit from any Person for whom such
Person is acting as nominee, trustee or agent in connection with any Transfer
of this Class [R][RC][RX] Certificate, (C) not to cause income with respect to
the Class [R][RC][RX] Certificate to be attributable to a foreign permanent
establishment or fixed base, within the meaning of an applicable income tax
treaty, of such Person or any other U.S. Person and (D) not to Transfer the
Ownership Interest in this Class [R][RC][RX] Certificate or to cause the
Transfer of the Ownership Interest in this Class [R][RC][RX] Certificate to
any other Person if it has actual knowledge that such Person is not a
Permitted Transferee and (iv) any attempted or purported Transfer of the
Ownership Interest in this Class [R][RC][RX] Certificate in violation of the
provisions herein shall be absolutely null and void and shall vest no rights
in the purported Transferee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
C-3
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
not in its individual capacity,
but solely as Securities
Administrator
By:________________________________
Authenticated:
By:__________________________________
Authorized Signatory of
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
not in its individual capacity, but solely
as Securities Administrator
C-4
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2006-6
Asset-Backed Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAA Home Equity Trust 2006-6 Asset-Backed Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Distribution
Account for payment hereunder and that the Trustee is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the other parties to the Agreement.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
for each Distribution Date is the last Business Day of the month immediately
preceding the month in which such Distribution Date occurs.
Distributions on this Certificate shall be made by wire transfer
of immediately available funds to the account of the Holder hereof at a bank
or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Securities Administrator in
writing at least five (5) Business Days prior to the related Record Date and
such Certificateholder shall satisfy the conditions to receive such form of
payment set forth in the Agreement, or, if not, by check mailed by first class
mail to the address of such Certificateholder appearing in the Certificate
Register. The final distribution on each Certificate will be made in like
manner, but only upon presentment and surrender of such Certificate at the
office designated by the Securities Administrator for such purposes, or such
other location specified in the notice to Certificateholders of such final
distribution.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of
the Trustee and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Trustee and the other parties to the Agreement
with the consent of the Holders of Certificates affected by such amendment
evidencing the requisite Percentage Interest, as provided in the Agreement.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder
C-5
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Securities Administrator upon surrender of this
Certificate for registration of transfer at the office designated by the
Securities Administrator for such purposes, accompanied by a written
instrument of transfer in form satisfactory to the Securities Administrator
duly executed by the holder hereof or such holder's attorney duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in
the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Securities Administrator may require payment of
a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
The Trustee, the Depositor, the Securities Administrator and any
agent of the Trustee, the Depositor or the Securities Administrator may treat
the Person in whose name this Certificate is registered as the owner hereof
for all purposes, and none of the Depositor, the Trustee or Securities
Administrator, nor any such agent shall be affected by any notice to the
contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 11.01 of the Agreement
will have the option to effectuate the purchase, in whole, from the Trust Fund
all remaining Mortgage Loans and all property acquired in respect of the
Mortgage Loans at a purchase price determined and in the manner as provided in
the Agreement. The obligations and responsibilities created by this Agreement
will terminate as provided in Section 11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have
the meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
C-6
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
______________________________________________________________________________.
Dated:
_______________________________________
Signature by or on behalf of assignor
C-7
DISTRIBUTION INSTRUCTIONS
-------------------------
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _______________________________________________,
______________________________________________________________________________,
for the account of ___________________________________________________________,
account number ______, or, if mailed by check, to ____________________________.
Applicable statements should be mailed to ____________________________________,
______________________________________________________________________________.
This information is provided by __________________________________,
the assignee named above, or _________________________________________________,
as its agent.
C-8
EXHIBIT D
FORM OF CLASS X CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") AND CERTAIN OTHER ASSETS
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFEROR
CERTIFICATE (THE "TRANSFEROR CERTIFICATE") IN THE FORM OF EXHIBIT H TO THE
AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE SECURITIES ADMINISTRATOR
RECEIVES A RULE 144A LETTER (THE "RULE 144A LETTER") IN THE FORM OF EXHIBIT I
TO THE AGREEMENT REFERRED TO HEREIN OR (II) THE SECURITIES ADMINISTRATOR
RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE TRANSFEROR,
THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT
OF 1933, AS AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR EITHER A REPRESENTATION
LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN
SUBJECT TO APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR A PERSON INVESTING
ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN, OR IF THE TRANSFEREE IS AN
INSURANCE COMPANY AND THE CERTIFICATE HAS BEEN THE SUBJECT OF AN
ERISA-QUALIFYING UNDERWRITING, A REPRESENTATION LETTER THAT IT IS USING THE
ASSETS OF ITS GENERAL ACCOUNT AND THAT THE PURCHASE AND HOLDING OF THIS
CERTIFICATE SATISFY THE REQUIREMENTS FOR EXEMPTIVE RELIEF UNDER SECTIONS I AND
III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, OR AN OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE, THE SECURITIES ADMINISTRATOR AND THE DEPOSITOR,
TO THE EFFECT THAT THE PURCHASE AND HOLDING OF THIS 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 MASTER SERVICER, THE DEPOSITOR OR THE SECURITIES ADMINISTRATOR TO
ANY OBLIGATION IN ADDITION TO THOSE EXPRESSLY UNDERTAKEN IN THIS AGREEMENT OR
TO ANY LIABILITY. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY
PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN SUBJECT TO TITLE I OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW
WITHOUT THE REPRESENTATION
D-1
LETTER OR OPINION OF COUNSEL SATISFACTORY TO THE SECURITIES ADMINISTRATOR AS
DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
Certificate No. : X-1
Cut-off Date : April 1, 2006
First Distribution Date : May 25, 2006
Percentage Interest of this Certificate
("Denomination") : 100%
CUSIP :
ISIN :
D-2
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2006-6
Asset-Backed Certificates, Series 2006-6
Class X
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Certificate does not evidence an obligation
of, or an interest in, and is not guaranteed by the Depositor the Master
Servicer, to Securities Administrator or the Trustee referred to below or any
of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
This certifies that [_______________________] is the registered
owner of the Percentage Interest evidenced by this Certificate (obtained by
dividing the denomination of this Certificate by the aggregate of the
denominations of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions pursuant to a Master Servicing and
Trust Agreement dated as of the Cut-off Date specified above (the "Agreement")
among GS Mortgage Securities Corp., as depositor (the "Depositor"), U.S. Bank
National Association, as trustee (the "Trustee"), JPMorgan Chase Bank, as
Master Servicer (in such capacity, the "Master Servicer") and Securities
Administrator (in such capacity, the "Securities Administrator"), Deutsche
Bank National Trust Company, as a custodian and JPMorgan Chase Bank, National
Association, as a custodian. To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
This Certificate does not have a Pass-Through Rate and will be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the
Trust will be made only upon presentment and surrender of this Certificate at
the office designated by the Securities Administrator for such purposes or the
office or agency maintained by the Securities Administrator.
No transfer of a Certificate of this Class shall be made unless
such disposition is exempt from the registration requirements of the
Securities Act of 1933, as amended (the "1933 Act"), and any applicable state
securities laws or is made in accordance with the 1933 Act and such laws. In
the event of any such transfer, the Securities Administrator shall require the
transferor to execute a transferor certificate (in substantially the form
attached to the Agreement) and deliver either (i) a Rule 144A Letter (in
substantially the form attached to the Agreement), or (ii) a written Opinion
of Counsel to the Securities Administrator that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the 1933 Act or is being made pursuant to the 1933 Act, which
Opinion of Counsel shall be an expense of the transferor. No transfer of a
Certificate of this Class shall be made unless the Securities Administrator
shall have received either (i) a representation letter from the transferee
D-3
of such Certificate, acceptable to and in form and substance satisfactory to
the Securities Administrator, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA or Section 4975 of the
Code or any materially similar provisions of applicable federal, state or
local law ("Similar Law") or a person acting on behalf of or investing plan
assets of any such plan, which representation letter shall not be an expense
of the Securities Administrator, or (ii) if the transferee is an insurance
company and the certificate has been the subject of an ERISA-Qualifying
Underwriting, a representation letter that it is purchasing such Certificates
with the assets of its general account and that the purchase and holding of
such Certificates satisfy the requirements for exemptive relief under Sections
I and III of PTCE 95-60, or (iii) in the case of a Certificate presented for
registration in the name of an employee benefit plan subject to ERISA, or a
plan or arrangement subject to Section 4975 of the Code (or comparable
provisions of any subsequent enactments) or a plan subject to Similar Law, or
a trustee of any such plan or any other person acting on behalf of any such
plan or arrangement or using such plan's or arrangement's assets, an Opinion
of Counsel satisfactory to the Securities Administrator, which Opinion of
Counsel shall not be an expense of the Securities Administrator, the
Depositor, the Trustee or the Trust Fund, addressed to the Securities
Administrator, the Trustee and the Depositor to the effect that the purchase
and holding of such Certificate will not constitute or result in a non-exempt
prohibited transaction within the meaning of ERISA, Section 4975 of the Code
or any Similar Law and will not subject the Trustee to any obligation in
addition to those expressly undertaken in this Agreement or to any liability.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
* * *
D-4
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Securities Administrator
By:
--------------------------------------
Authenticated:
By:
-----------------------------------------
Authorized Signatory of
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Securities Administrator
D-5
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2006-6
Asset-Backed Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAA Home Equity Trust 2006-6 Asset-Backed Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Distribution
Account for payment hereunder and that the Trustee is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the other parties to the Agreement.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (the "Distribution Date"), commencing
on the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
for each Distribution Date is the last Business Day of the month immediately
preceding the month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer
of immediately available funds to the account of the Holder hereof at a bank
or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Securities Administrator in
writing at least five (5) Business Days prior to the related Record Date and
such Certificateholder shall satisfy the conditions to receive such form of
payment set forth in the Agreement, or, if not, by check mailed by first class
mail to the address of such Certificateholder appearing in the Certificate
Register. The final distribution on each Certificate will be made in like
manner, but only upon presentment and surrender of such Certificate at the
office designated by the Securities Administrator for such purposes or such
other location specified in the notice to Certificateholders of such final
distribution.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of
the Trustee and the rights of the Certificateholders under the Agreement at
any time by the Trustee and the other parties to the Agreement with the
consent of the Holders of Certificates affected by such amendment evidencing
the requisite Percentage Interest, as provided in the Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future
D-6
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of
the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Securities Administrator upon surrender of this
Certificate for registration of transfer at the office designated by the
Securities Administrator for such purposes, accompanied by a written
instrument of transfer in form satisfactory to the Securities Administrator
duly executed by the holder hereof or such holder's attorney duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in
the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Securities Administrator may require payment of
a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
The Trustee, the Depositor and the Securities Administrator and
any agent of the Trustee, the Depositor or the Securities Administrator may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Trustee, the Depositor, the
Securities Administrator, nor any such agent shall be affected by any notice
to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 11.01 of the Agreement
will have the option to effectuate the purchase, in whole, from the Trust Fund
all remaining Mortgage Loans and all property acquired in respect of the
Mortgage Loans at a purchase price determined and in the manner as provided in
the Agreement. The obligations and responsibilities created by this Agreement
will terminate as provided in Section 11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have
the meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
D-7
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
______________________________________________________________________________.
Dated:
______________________________________
Signature by or on behalf of assignor
D-8
DISTRIBUTION INSTRUCTIONS
-------------------------
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _______________________________________________,
______________________________________________________________________________,
for the account of ___________________________________________________________,
account number ______, or, if mailed by check, to ____________________________.
Applicable statements should be mailed to ____________________________________,
______________________________________________________________________________.
This information is provided by ___, the assignee named above, or
, as its agent.
D-9
EXHIBIT E
FORM OF INITIAL CERTIFICATION OF CUSTODIAN
[date]
[Depositor]
[Trustee]
_____________________
_____________________
Re: Master Servicing and Trust Agreement, dated as of April 1,
2006, among GS Mortgage Securities Corp., as depositor, U.S.
Bank National Association, as trustee, JPMorgan Chase Bank,
National Association, as Master Servicer and Securities
Administrator, Deutsche Bank National Trust Company, as a
custodian, Xxxxx Fargo Bank, N.A., as a custodian and
JPMorgan Chase Bank, National Association, as a custodian
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Master
Servicing and Trust Agreement (the "Trust Agreement"), the undersigned, as
Custodian, for each Mortgage Loan listed in the Mortgage Loan Schedule for
which the undersigned is specified as the Custodian (other than any Mortgage
Loan listed in the attached exception report), it has received:
(i) the original Mortgage Note, endorsed as provided in the
following form: "Pay to the order of ________, without recourse"; and
(ii) except with respect to a MERS Loan, an executed Assignment of
Mortgage (which may be included in a blanket assignment or assignments).
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
Mortgage Loan.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Trust Agreement. The Custodian makes no representations as to: (i) the
validity, legality, sufficiency, enforceability, recordability or genuineness
of any of the documents contained in each Mortgage File of any of the Mortgage
Loans identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan or the
perfection or priority of any Mortgage. Notwithstanding anything herein to the
contrary, the Custodian has made no determination and makes no representations
as to whether (i) any endorsement is sufficient to transfer all right, title
and interest of the party so endorsing, as noteholder or assignee thereof, in
and to that Mortgage Note or (ii) any assignment is in recordable form or
sufficient to effect the
E-1
assignment of and transfer to the assignee thereof, under the Mortgage to
which the assignment relates.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the Trust Agreement.
[DEUTSCHE BANK NATIONAL TRUST
COMPANY], [JPMORGAN CHASE BANK,
NATIONAL ASSOCIATION][XXXXX FARGO
BANK, N.A.], not in its individual
capacity, but solely as Custodian
By:_________________________________
Name:_______________________________
Title:________________________________
E-2
EXHIBIT F
FORM OF DOCUMENT CERTIFICATION
AND EXCEPTION REPORT OF CUSTODIAN
[date]
[Depositor]
[Trustee]
______________________
______________________
Re: Master Servicing and Trust Agreement, dated as of April 1,
2006, among GS Mortgage Securities Corp., as depositor, U.S.
Bank National Association, as trustee, JPMorgan Chase Bank,
as Master Servicer and Securities Administrator, Deutsche
Bank National Trust Company, as a custodian, Xxxxx Fargo
Bank, N.A., as a custodian and JPMorgan Chase Bank, National
Association, as a custodian
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Master
Servicing and Trust Agreement (the "Trust Agreement"), the undersigned, as
Custodian, hereby certifies, subject to any exceptions listed on the exception
report attached hereto, that as to each Mortgage Loan listed in the Mortgage
Loan Schedule for which the undersigned is specified as the Custodian (other
than any Mortgage Loan paid in full or listed on the attached exception
report) it has received:
(a) the original Mortgage Note, endorsed without recourse in blank
by the last endorsee, including all intervening endorsements showing a
complete chain of endorsement from the originator to the last endorsee;
(b) the original Assignment of Mortgage in blank, unless the
Mortgage Loan is a MERS Loan;
(c) personal endorsement and/or guaranty agreements executed in
connection with all non individual Mortgage Loans (corporations, partnerships,
trusts, estates, etc. (if provided);
(d) the related original Mortgage and evidence of its recording or
a certified copy of the mortgage with evidence of recording;
(e) except with respect to a MERS Loan, originals of any
intervening Mortgage assignment or certified copies in either case evidencing
recording; provided that the
F-1
assignment may be in the form of a blanket assignment or assignments, a copy
of which with evidence of recording shall be acceptable;
(f) if provided, originals of all assumption, modification,
agreements or certified copies thereof, in either case with evidence of
recording if required to maintain the lien of the mortgage or if otherwise
required, or, if recordation is not required, an original or copy of the
agreement;
(g) an original or copy of a title insurance policy, a certificate
of title, or attorney's opinion of title and abstract of title;
(h) to the extent applicable, (1) an original power of attorney,
or a certified copy thereof, in either case with evidence of recordation if
the document to which such power of attorney relates is recorded, and (2) if
provided, an original or copy of any surety agreement or guaranty agreement;
(i) for each Mortgage Loan with respect to which the Mortgagor's
name as it appears on the note does not match the borrower's name on the
mortgage loan schedule, one of the following: the original of the assumption
agreement, or a certified copy thereof;
(j) a security agreement, chattel mortgage or equivalent document
executed in connection with the mortgage, if provided.
Based on its review and examination and only as to the foregoing
documents, (a) such documents appear regular on their face and related to such
Mortgage Loan, and (b) the information set forth in items 2, 8, 33 and 34 of
the Mortgage Loan Schedule accurately reflects information set forth in the
Custodial File.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review of the Custodial File
specifically required in the Trust Agreement. The Custodian makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any
of the Mortgage Loans identified on the Mortgage Loan Schedule, or (ii) the
collectability, insurability, effectiveness or suitability of any such
Mortgage Loan or the perfection or priority of any Mortgage. Notwithstanding
anything herein to the contrary, the Custodian has made no determination and
makes no representations as to whether (i) any endorsement is sufficient to
transfer all right, title and interest of the party so endorsing, as
noteholder or assignee thereof, in and to that Mortgage Note or (ii) any
assignment is in recordable form or sufficient to effect the assignment of and
transfer to the assignee thereof, under the Mortgage to which the assignment
relates.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the Trust Agreement.
F-2
[DEUTSCHE BANK NATIONAL TRUST COMPANY],
[JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION][XXXXX FARGO BANK, N.A.]
not in its individual capacity, but
solely as Custodian
By:_________________________________
Name:_______________________________
Title:________________________________
F-3
EXHIBIT G
FORM OF RESIDUAL TRANSFER AFFIDAVIT
GSAA Home Equity Trust 2006-6,
Asset-Backed Certificates, Series 2006-6
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as
follows:
1. The undersigned is an officer of ___________________, the
proposed Transferee of an Ownership Interest in a Class [R][RC][RX]
Certificate (the "Certificate") issued pursuant to the Master Servicing and
Trust Agreement (the "Agreement"), among GS Mortgage Securities Corp., as
depositor (the "Depositor"), U.S. Bank National Association, as trustee (the
"Trustee"), JPMorgan Chase Bank, as Master Servicer (in such capacity, the
"Master Servicer") and Securities Administrator (in such capacity, the
"Securities Administrator"), Deutsche Bank National Trust Company, as a
custodian, Xxxxx Fargo Bank, N.A., as a custodian and JPMorgan Chase Bank,
National Association, as a custodian. Capitalized terms used, but not defined
herein, shall have the meanings ascribed to such terms in the Agreement. The
Transferee has authorized the undersigned to make this affidavit on behalf of
the Transferee for the benefit of the Depositor, the Securities Administrator
and the Trustee.
2. The Transferee is, as of the date hereof, and will be, as of
the date of the Transfer, a Permitted Transferee. The Transferee is acquiring
its Ownership Interest in the Certificate for its own account. The Transferee
has no knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a
tax will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability
for the tax if the subsequent Transferee furnished to such Person an affidavit
that such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax
will be imposed on a "pass-through entity" holding the Certificate if at any
time during the taxable year of the pass through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass through entity an
affidavit that such record holder is a Permitted Transferee and the pass
through entity does not have actual knowledge that such affidavit is false.
(For this purpose, a "pass through entity" includes a regulated investment
company, a real estate investment trust or common trust fund, a
G-1
partnership, trust or estate, and certain cooperatives and, except as may be
provided in Treasury Regulations, persons holding interests in pass through
entities as a nominee for another Person.)
5. The Transferee has reviewed the provisions of Section 5.02(c)
of the Agreement and understands the legal consequences of the acquisition of
an Ownership Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding voiding the
Transfer and mandatory sales. The Transferee expressly agrees to be bound by
and to abide by the provisions of Section 5.02(c) of the Agreement and the
restrictions noted on the face of the Certificate. The Transferee understands
and agrees that any breach of any of the representations included herein shall
render the Transfer to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer its Ownership Interest in
the Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Securities Administrator a certificate
substantially in the form set forth as Exhibit H to the Agreement (a
"Transferor Certificate") to the effect that such Transferee has no actual
knowledge that the Person to which the Transfer is to be made is not a
Permitted Transferee.
7. The Transferee has historically paid its debts as they have
come due, intends to pay its debts as they come due in the future, and
understands that the taxes payable with respect to the Certificate may exceed
the cash flow with respect thereto in some or all periods and intends to pay
such taxes as they become due. The Transferee does not have the intention to
impede the assessment or collection of any tax legally required to be paid
with respect to the Certificate.
8. The Transferee's taxpayer identification number is __________.
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
10. The Transferee is aware that the Certificate may be a
"noneconomic residual interest" within the meaning of proposed Treasury
regulations promulgated pursuant to the Code and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with
respect to the income on such residual interest, unless no significant purpose
of the transfer was to impede the assessment or collection of tax.
11. The Transferee will not cause income from the Certificate to
be attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of the Transferee or any other
U.S. person.
12. Check one of the following:
|_| The present value of the anticipated tax liabilities
associated with holding the Certificate, as applicable, does not exceed the
sum of:
G-2
(i) the present value of any consideration given to the Transferee
to acquire such Certificate;
(ii) the present value of the expected future distributions on
such Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such Certificate as the related REMIC generates losses.
For purposes of this calculation, (i) the Transferee is assumed to
pay tax at the highest rate currently specified in Section 11(b) of the Code
(but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of
the highest rate specified in Section 11(b) of the Code if the Transferee has
been subject to the alternative minimum tax under Section 55 of the Code in
the preceding two years and will compute its taxable income in the current
taxable year using the alternative minimum tax rate) and (ii) present values
are computed using a discount rate equal to the short-term Federal rate
prescribed by Section 1274(d) of the Code for the month of the transfer and
the compounding period used by the Transferee.
|_| The transfer of the Certificate complies with U.S. Treasury
Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly,
(iv) the Transferee is an "eligible corporation," as defined in
U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), as to which income
from the Certificate will only be taxed in the United States;
(v) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the transfer, the
Transferee had gross assets for financial reporting purposes (excluding
any obligation of a person related to the Transferee within the meaning
of U.S. Treasury Regulations Section 1.860E-1(c)(6)(ii)) in excess of
$100 million and net assets in excess of $10 million;
(vi) the Transferee will transfer the Certificate only to another
"eligible corporation," as defined in U.S. Treasury Regulations Section
1.860E-1(c)(6)(i), in a transaction that satisfies the requirements of
Sections 1.860E-1(c)(4)(i), (ii) and (iii) and Section 1.860E-1(c)(5) of
the U.S. Treasury Regulations; and
(vii) the Transferee determined the consideration paid to it to
acquire the Certificate based on reasonable market assumptions
(including, but not limited to, borrowing and investment rates,
prepayment and loss assumptions, expense and reinvestment assumptions,
tax rates and other factors specific to the Transferee) that it has
determined in good faith.
|_| None of the above.
13. The Transferee is not an employee benefit plan that is subject
to Title I of ERISA or a plan that is subject to Section 4975 of the Code or a
plan subject to any federal, state or local law that is substantially similar
to Title I of ERISA or Section 4975 of the Code, and the Transferee is not
acting on behalf of or investing plan assets of such a plan.
G-3
IN WITNESS WHEREOF, the Transferee has caused this instrument to
be executed on its behalf, pursuant to authority of its Board of Directors, by
its duly authorized officer and its corporate seal to be hereunto affixed,
duly attested, this ____ day of _______, 20__.
________________________________
Print Name of Transferee
By:______________________________
Name:
Title:
[Corporate Seal]
ATTEST:
_______________________________
[Assistant] Secretary
Personally appeared before me the above-named __________, known or
proved to me to be the same person who executed the foregoing instrument and
to be the ___________ of the Transferee, and acknowledged that he executed the
same as his free act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this ____ day of ________, 20__.
_____________________
NOTARY PUBLIC
My Commission expires
the __ day
of _________, 20__
G-4
EXHIBIT H
FORM OF TRANSFEROR CERTIFICATE
__________, 20__
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
JPMorgan Chase Bank, National Association
[Address]
Re: GSAA Home Equity Trust 2006-6, Asset-Backed Certificates
Series 2006-6, Class [ ]
------------------------
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being
disposed by us in a transaction that is exempt from the registration
requirements of the Act, (b) we have not offered or sold any Certificates to,
or solicited offers to buy any Certificates from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner
that would be deemed, or taken any other action which would result in, a
violation of Section 5 of the Act and (c) to the extent we are disposing of a
Residual Certificate, (A) we have no knowledge the Transferee is not a
Permitted Transferee and (B) after conducting a reasonable investigation of
the financial condition of the Transferee, we have no knowledge and no reason
to believe that the Transferee will not pay all taxes with respect to the
Residual Certificates as they become due and (C) we have no reason to believe
that the statements made in paragraphs 7, 10 and 11 of the Transferee's
Residual Transfer Affidavit are false.
Very truly yours,
__________________________________
Print Name of Transferor
By:
Authorized Officer
H-1
EXHIBIT I
FORM OF RULE 144A LETTER
____________, 20__
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
JPMorgan Chase Bank, National Association.
[Address]
Re: GSAA Home Equity Trust 2006-6, Asset-Backed Certificates,
Series 2006-6, Class [__]
-------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is
exempt from the registration requirements of the Act and any such laws, (b) we
have such knowledge and experience in financial and business matters that we
are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificates and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Certificates, (d) either we are purchasing a Class
AV-1 Certificate, Class AF-2 Certificate, Class AF-3 Certificate, Class AF-4
Certificate, Class AF-5 Certificate, Class AF-6 Certificate, Class AF-7
Certificate, Class M-1 Certificate, Class M-2 Certificate, Class M-3
Certificate, Class M-4 Certificate, Class M-5 Certificate, Class M-6
Certificate, Class B-1, Class B-2, Class B-3 Certificate or Class B-4
Certificate, or we are not an employee benefit plan that is subject to Title I
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
or a plan or arrangement that is subject to Section 4975 of the Internal
Revenue Code of 1986, as amended (the "Code"), or a plan subject to any
federal, state or local law materially similar to the foregoing provisions of
ERISA or the Code, nor are we acting on behalf of any such plan or arrangement
or using the assets of any such plan or arrangement to effect such
acquisition, or, with respect to a Class B-4, Class X Certificate or Class P
Certificate that has been the subject of an ERISA-Qualifying Underwriting, the
purchaser is an insurance company that is purchasing this certificate with
funds contained in an "insurance company general account" (as such term is
defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE
95-60")) and the purchase and holding of such Certificates satisfy the
requirements for exemptive relief under Sections I and III of PTCE 95-60, (e)
we have not, nor has anyone acting on our behalf offered, transferred,
pledged, sold or otherwise disposed of the Certificates, any interest in the
Certificates or any other similar security to, or solicited any offer to buy
or accept a transfer, pledge or other disposition of the Certificates, any
interest in the Certificates or any other similar security from, or otherwise
approached or negotiated with
J-1
respect to the Certificates, any interest in the Certificates or any other
similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken
any other action, that would constitute a distribution of the Certificates
under the Securities Act or that would render the disposition of the
Certificates a violation of Section 5 of the Securities Act or require
registration pursuant thereto, nor will act, nor has authorized or will
authorize any person to act, in such manner with respect to the Certificates
and (f) we are a "qualified institutional buyer" as that term is defined in
Rule 144A under the Securities Act and have completed either of the forms of
certification to that effect attached hereto as Annex 1 or Annex 2. We are
aware that the sale to us is being made in reliance on Rule 144A. We are
acquiring the Certificates for our own account or for resale pursuant to Rule
144A and further, understand that such Certificates may be resold, pledged or
transferred only (i) to a person reasonably believed to be a qualified
institutional buyer that purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given that the resale, pledge
or transfer is being made in reliance on Rule 144A, or (ii) pursuant to
another exemption from registration under the Securities Act.
J-2
ANNEX 1 TO EXHIBIT I
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A"), because (i) the Buyer owned
and/or invested on a discretionary basis $___________(1) in securities (except
for the excluded securities referred to below) as of the end of the Buyer's
most recent fiscal year (such amount being calculated in accordance with Rule
144A and (ii) the Buyer satisfies the criteria in the category marked below.
____ Corporation, etc. The Buyer is a corporation (other than a
bank, savings and loan association or similar institution), Massachusetts or
similar business trust, partnership, or charitable organization described in
Section 501(c)(3) of the Internal Revenue Code of 1986, as amended.
____ Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the District of Columbia,
the business of which is substantially confined to banking and is supervised
by the State or territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial statements, a
copy of which is attached hereto.
____ Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association, cooperative bank, homestead
association or similar institution, which is supervised and examined by a
State or Federal authority having supervision over any such institutions or is
a foreign savings and loan association or equivalent institution and (b) has
an audited net worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto.
____ Broker-dealer. The Buyer is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
____ Insurance Company. The Buyer is an insurance company whose
primary and predominant business activity is the writing of insurance or the
reinsuring of risks
-----------------
(1) Buyer must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Buyer is a dealer, and, in that case,
Buyer must own and/or invest on a discretionary basis at least
$10,000,000 in securities.
J-3
underwritten by insurance companies and which is subject to supervision by the
insurance commissioner or a similar official or agency of a State, territory
or the District of Columbia.
____ State or Local Plan. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the benefit of
its employees.
____ ERISA Plan. The Buyer is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of 1974.
____ Investment Advisor. The Buyer is an investment advisor
registered under the Investment Advisors Act of 1940.
____ Small Business Investment Company. Buyer is a small business
investment company licensed by the U.S. Small Business Administration under
Section 301(c) or (d) of the Small Business Investment Act of 1958.
____ Business Development Company. Buyer is a business development
company as defined in Section 202(a)(22) of the Investment Advisors Act of
1940.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer
is a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned
but subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used
the cost of such securities to the Buyer and did not include any of the
securities referred to in the preceding paragraph, except (i) where the Buyer
reports its securities holdings in its financial statements on the basis of
their market value, and (ii) no current information with respect to the cost
of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market. Further, in
determining such aggregate amount, the Buyer may have included securities
owned by subsidiaries of the Buyer, but only if such subsidiaries are
consolidated with the Buyer in its financial statements prepared in accordance
with generally accepted accounting principles and if the investments of such
subsidiaries are managed under the Buyer's direction. However, such securities
were not included if the Buyer is a majority-owned, consolidated subsidiary of
another enterprise and the Buyer is not itself a reporting company under the
Securities Exchange Act of 1934, as amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the
Certificates are relying and will continue to rely on the statements made
herein because one or more sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the
Buyer will notify each of the parties to which this certification is made of
any changes in the information
J-4
and conclusions herein. Until such notice is given, the Buyer's purchase of
the Certificates will constitute a reaffirmation of this certification as of
the date of such purchase. In addition, if the Buyer is a bank or savings and
loan is provided above, the Buyer agrees that it will furnish to such parties
updated annual financial statements promptly after they become available.
-----------------------------
Print Name of Transferee
By:
------------------------------------
Name:
Title:
Date:
----------------------------------
J-5
ANNEX 2 TO EXHIBIT I
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A"), because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
Adviser.
2. In connection with purchases by Buyer, the Buyer is a
"qualified institutional buyer" as defined in SEC Rule 144A because (i) the
Buyer is an investment company registered under the Investment Company Act of
1940, as amended and (ii) as marked below, the Buyer alone, or the Buyer's
Family of Investment Companies, owned at least $100,000,000 in securities
(other than the excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year. For purposes of determining the amount of
securities owned by the Buyer or the Buyer's Family of Investment Companies,
the cost of such securities was used, except (i) where the Buyer or the
Buyer's Family of Investment Companies reports its securities holdings in its
financial statements on the basis of their market value, and (ii) no current
information with respect to the cost of those securities has been published.
If clause (ii) in the preceding sentence applies, the securities may be valued
at market.
____ The Buyer owned $___________ in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with Rule
144A).
____ The Buyer is part of a Family of Investment Companies which
owned in the aggregate $__________ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent fiscal
year (such amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue
of being majority owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or guaranteed
by the U.S. or any instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements,
(vi) securities owned but subject to a repurchase agreement and (vii)
currency, interest rate and commodity swaps.
J-6
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, the undersigned
will notify the parties listed in the Rule 144A Transferee Certificate to
which this certification relates of any changes in the information and
conclusions herein. Until such notice is given, the Buyer's purchase of the
Certificates will constitute a reaffirmation of this certification by the
undersigned as of the date of such purchase.
---------------------------------
Print Name of Transferee
By:
-------------------------------
Name:
Title:
IF AN ADVISER:
----------------------------------
Print Name of Buyer
Date:
-----------------------------
J-7
EXHIBIT J-1
FORM OF PERFORMANCE CERTIFICATION
(Master Servicer)
Re: Master Servicing and Trust Agreement, dated as of April 1,
2006 (the "Agreement"), among GS Mortgage Securities Corp., as depositor (the
"Depositor"), U.S. Bank, National Association, as trustee (the "Trustee"),
JPMorgan Chase Bank, National Association, as master servicer (the "Master
Servicer"), securities administrator and as a custodian (the "Securities
Administrator"), Deutsche Bank National Trust Company, as a custodian and
Xxxxx Fargo Bank, N.A., as a custodian (each, a "Custodian").
I, ________________________________, the _______________________
of [NAME OF COMPANY] (the "Company"), certify to the Depositor, and its
officers, with the knowledge and intent that they will rely upon this
certification, that:
(1) I have reviewed the servicer compliance statement of the
Company provided in accordance with Item 1123 of Regulation AB
(the "Compliance Statement"), the report on assessment of the
Company's compliance with the servicing criteria set forth in Item
1122(d) of Regulation AB (the "Servicing Criteria"), provided in
accordance with Rules 13a-18 and 15d-18 under Securities Exchange
Act of 1934, as amended (the "Exchange Act") and Item 1122 of
Regulation AB (the "Servicing Assessment"), all servicing reports,
officer's certificates and other information relating to the
servicing of the Mortgage Loans by the Company during 200[ ] that
were prepared and delivered by the Company to the Depositor and
the Securities Administrator pursuant to the Agreement, and as may
have been subsequently amended in a report, certification or
document subsequently prepared and delivered by the Company
(collectively, the "Company Servicing Information");
(2) Based on my knowledge, the Company Servicing
Information, taken as a whole, does not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements made, in the light of the
circumstances under which such statements were made, not
misleading with respect to the period of time covered by the
Company Servicing Information;
(3) Based on my knowledge, all of the Company Servicing
Information required to be provided by the Company under the
Agreement has been provided to the Depositor;
(4) I am responsible for reviewing the activities performed
by the Company as a servicer under the Agreement, and based on my
knowledge and the compliance review conducted in preparing the
Compliance Statement and except as disclosed in the Compliance
Statement or the Servicing Assessment, the Company has fulfilled
its obligations under the Agreement; and
(5) The Compliance Statement required to be delivered by the
Company pursuant to the Agreement and the Servicing Assessment
required to be
J-1
provided by the Company and by any Subservicer or Subcontractor
pursuant to the Agreement, have been provided to the Depositor.
Any material instances of noncompliance have been disclosed in
such reports.
Date: _______________________
By: ___________________________
Name:
Title:
X-0
XXXXXXX X-0
FORM OF PERFORMANCE CERTIFICATION
(Securities Administrator)
Re: Master Servicing and Trust Agreement, dated as of April 1, 2006 (the
"Agreement"), among GS Mortgage Securities Corp., as depositor (the
"Depositor"), U.S. Bank, National Association, as trustee (the
"Trustee"), JPMorgan Chase Bank, National Association, as master
servicer (the "Master Servicer"), securities administrator and as a
custodian (the "Securities Administrator"), Deutsche Bank National Trust
Company, as a custodian and Xxxxx Fargo Bank, N.A., as a custodian
(each, a "Custodian").
The Securities Administrator (the "Company"), certifies to the
Depositor, and its officers, with the knowledge and intent that they will rely
upon this certification, that:
(1) The Securities Administrator has reviewed the report on
assessment of the Company's compliance with the servicing criteria set
forth in Item 1122(d) of Regulation AB (the "Servicing Criteria"),
provided in accordance with Rules 13a-18 and 15d-18 under Securities
Exchange Act of 1934, as amended (the "Exchange Act") and Item 1122 of
Regulation AB (the "Servicing Assessment"), all reports on Form 10-D
containing statements to certificateholders filed in respect of the
period included in the year covered by the annual report of the Trust
Fund (collectively, the "Distribution Date Statements");
(2) Assuming the accuracy and completeness of the information
delivered to the Company by the Master Servicer as provided in the
Agreement and subject to paragraph (4) below, the distribution
information determined by the Company and set forth in the Distribution
Date Statements contained in all Form 10-D's included in the year
covered by the annual report of such Trust on Form 10-K for the calendar
year 200[ ], is complete and does not contain any material misstatement
of fact as of the last day of the period covered by such annual report;
(3) Based solely on the information delivered to the Company by
the Master Servicer as provided in the Agreement, (i) the distribution
information required under the Agreement to be contained in the Trust
Fund's Distribution Date Statements and (ii) the servicing information
required to be provided by the Master Servicer to the Securities
Administrator for inclusion in the Trust Fund's Distribution Date
Statements, to the extent received by the Securities Administrator from
the Master Servicer in accordance with the Agreement, is included in
such Distribution Date Statements;
(4) The Company is not certifying as to the accuracy, completeness
or correctness of the information which it received from the Master
Servicer and did not independently verify or confirm the accuracy,
completeness or correctness of the information provided by the Master
Servicer; and
(5) The Servicing Assessment required to be provided by the
Company pursuant to the Agreement, has been provided to the Depositor.
Any material instances of noncompliance described in such report have
been disclosed to the Depositor. Any
J-2-1
material instance of noncompliance with the Servicing Criteria has been
disclosed in such report.
Date: _________________________
By: ________________________________
Name:
Title:
J-2-2
EXHIBIT K
FORM OF SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE STATEMENT
The assessment of compliance to be delivered by the [Master
Servicer] [Securities Administrator] [Custodian] shall address, at a
minimum, the criteria identified as below as "Applicable Servicing
Criteria":
-----------------------------------------------------------------------------------------------------------------------------------
Securities
Servicing Criteria Master Servicer Administrator Custodian
-----------------------------------------------------------------------------------------------------------------------------------
Reference Criteria
-----------------------------------------------------------------------------------------------------------------------------------
General Servicing Considerations
----------------------- ------------------------------------------------------
Policies and procedures are instituted to monitor
any performance or other triggers and events of
default in accordance with the transaction
1122(d)(1)(i agreements.
----------------------- ------------------------------------------------------
If any material servicing activities are outsourced to
third parties, policies and procedures are instituted
to monitor the third party's performance and
1122(d)(1)(ii) compliance with such servicing activities.
----------------------- ------------------------------------------------------
Any requirements in the transaction agreements to
maintain a back-up servicer for the mortgage loans
1122(d)(1)(iii) are maintained.
----------------------- ------------------------------------------------------
A fidelity bond and errors and omissions policy is
in effect on the party participating in the
servicing function throughout the reporting period
in the amount of coverage required by and
otherwise in accordance with the terms of the
1122(d)(1)(iv) transaction agreements. X
----------------------- ------------------------------------------------------
Cash Collection and Administration
----------------------- ------------------------------------------------------
Payments on mortgage loans are deposited into the
appropriate custodial bank accounts and related
bank clearing accounts no more than two business
days following receipt, or such other number of
1122(d)(2)(i) days specified in the transaction agreements. X X
----------------------- ------------------------------------------------------
K-1
-----------------------------------------------------------------------------------------------------------------------------------
Securities
Servicing Criteria Master Servicer Administrator Custodian
-----------------------------------------------------------------------------------------------------------------------------------
Reference Criteria
-----------------------------------------------------------------------------------------------------------------------------------
Disbursements made via wire transfer on behalf of
an obligor or to an investor are made only by
1122(d)(2)(ii) authorized personnel. X X
----------------------- ------------------------------------------------------
Advances of funds or guarantees regarding
collections, cash flows or distributions, and any
interest or other fees charged for such advances,
are made, reviewed and approved as specified in
1122(d)(2)(iii) the transaction agreements. X
----------------------- ------------------------------------------------------
The related accounts for the transaction, such as
cash reserve accounts or accounts established as a
form of overcollateralization, are separately
maintained (e.g., with respect to commingling of
1122(d)(2)(iv) cash) as set forth in the transaction agreements. X X
----------------------- ------------------------------------------------------
Each custodial account is maintained at a federally
insured depository institution as set forth in the
transaction agreements. For purposes of this
criterion, "federally insured depository institution"
with respect to a foreign financial institution means
a foreign financial institution that meets the
requirements of Rule 13k-1(b)(1) of the Securities
1122(d)(2)(v) Exchange Act. X X(2)
----------------------- ------------------------------------------------------
Unissued checks are safeguarded so as to prevent
1122(d)(2)(vi unauthorized access.
----------------------- ------------------------------------------------------
Reconciliations are prepared on a monthly basis
for all asset-backed securities related bank
accounts, including custodial accounts and related
bank clearing accounts. These reconciliations are
(A) mathematically accurate; (B) prepared within
30 calendar days after the bank statement cutoff
1122(d)(2)(vii) date, or X X
----------------------- ------------------------------------------------------
--------------------
(2) For 1122(d)(2)(v) the Securities Administrator needs to provide only if
it is a "custodial account" for purposes of these servicing criteria.
Subject to further clarification from the Commission.
K-2
-----------------------------------------------------------------------------------------------------------------------------------
Securities
Servicing Criteria Master Servicer Administrator Custodian
-----------------------------------------------------------------------------------------------------------------------------------
Reference Criteria
-----------------------------------------------------------------------------------------------------------------------------------
such other number of days specified in the transaction
agreements; (C) reviewed and approved by someone other
than the person who prepared the reconciliation; and
(D) contain explanations for reconciling items. These
reconciling items are resolved within 90 calendar days
of their original identification, or such other number
of days specified in the transaction agreements.
----------------------- ------------------------------------------------------
Investor Remittances and Reporting
----------------------- ------------------------------------------------------
Reports to investors, including those to be filed
with the Commission, are maintained in accordance
with the transaction agreements and applicable
Commission requirements. Specifically, such
reports (A) are prepared in accordance with
timeframes and other terms set forth in the
transaction agreements; (B) provide information
calculated in accordance with the terms specified
in the transaction agreements; (C) are filed with
the Commission as required by its rules and
regulations; and (D) agree with investors' or the
trustee's records as to the total unpaid principal
balance and number of mortgage loans serviced by
1122(d)(3)(i) the Servicer. X X
----------------------- ------------------------------------------------------
Amounts due to investors are allocated and remitted in
accordance with timeframes, distribution priority and
1122(d)(3)(ii) other terms set forth in the transaction agreements. X
----------------------- ------------------------------------------------------
Disbursements made to an investor are posted within
two business days to the Servicer's investor records,
or such other number of days specified in the
1122(d)(3)(iii) transaction agreements. X
----------------------- ------------------------------------------------------
Amounts remitted to investors per the investor
reports agree with cancelled checks, or other form
1122(d)(3)(iv) of payment, or custodial bank X
----------------------- ------------------------------------------------------
K-3
-----------------------------------------------------------------------------------------------------------------------------------
Securities
Servicing Criteria Master Servicer Administrator Custodian
-----------------------------------------------------------------------------------------------------------------------------------
Reference Criteria
-----------------------------------------------------------------------------------------------------------------------------------
statements.
Pool Asset Administration
----------------------- ------------------------------------------------------
Collateral or security on mortgage loans is
maintained as required by the transaction
1122(d)(4)(i) agreements or related mortgage loan documents. X
----------------------- ------------------------------------------------------
Mortgage loan and related documents are
safeguarded as required by the transaction
1122(d)(4)(ii) agreements. X
----------------------- ------------------------------------------------------
Any additions, removals or substitutions to the asset
pool are made, reviewed and approved in accordance
with any conditions or requirements in the transaction
1122(d)(4)(iii) agreements.
----------------------- ------------------------------------------------------
Payments on mortgage loans, including any payoffs,
made in accordance with the related mortgage loan
documents are posted to the Servicer's obligor records
maintained no more than two business days after
receipt, or such other number of days specified in the
transaction agreements, and allocated to principal,
interest or other items (e.g., escrow) in accordance
1122(d)(4)(iv) with the related mortgage loan documents.
----------------------- ------------------------------------------------------
The Servicer's records regarding the mortgage
loans agree with the Servicer's records with
1122(d)(4)(v) respect to an obligor's unpaid principal balance.
----------------------- ------------------------------------------------------
Changes with respect to the terms or status of an
obligor's mortgage loans (e.g., loan modifications or
re-agings) are made, reviewed and approved by
authorized personnel in accordance with the
1122(d)(4)(vi) transaction agreements and related pool asset
----------------------- ------------------------------------------------------
K-4
-----------------------------------------------------------------------------------------------------------------------------------
Securities
Servicing Criteria Master Servicer Administrator Custodian
-----------------------------------------------------------------------------------------------------------------------------------
Reference Criteria
-----------------------------------------------------------------------------------------------------------------------------------
documents.
----------------------- ------------------------------------------------------
Loss mitigation or recovery actions (e.g., forbearance
plans, modifications and deeds in lieu of foreclosure,
foreclosures and repossessions, as applicable) are
initiated, conducted and concluded in accordance with
the timeframes or other requirements established by
1122(d)(4)(vii) the transaction agreements.
----------------------- ------------------------------------------------------
Records documenting collection efforts are maintained
during the period a mortgage loan is delinquent in
accordance with the transaction agreements. Such
records are maintained on at least a monthly basis, or
such other period specified in the transaction
agreements, and describe the entity's activities in
monitoring delinquent mortgage loans including, for
example, phone calls, letters and payment rescheduling
plans in cases where delinquency is deemed
1122(d)(4)(viii) temporary (e.g., illness or unemployment).
----------------------- ------------------------------------------------------
Adjustments to interest rates or rates of return for
mortgage loans with variable rates are computed based
1122(d)(4)(ix) on the related mortgage loan documents.
----------------------- ------------------------------------------------------
Regarding any funds held in trust for an obligor (such
as escrow accounts): (A) such funds are analyzed, in
accordance with the obligor's mortgage loan documents,
on at least an annual basis, or such other period
specified in the transaction agreements; (B) interest
on such funds is paid, or credited, to obligors in
accordance with applicable mortgage loan documents and
state laws; and (C) such funds are returned to the
obligor within 30 calendar days of full repayment of
the related mortgage loans, or such other number of
1122(d)(4)(x) days specified in the transaction
----------------------- ------------------------------------------------------
K-5
-----------------------------------------------------------------------------------------------------------------------------------
Securities
Servicing Criteria Master Servicer Administrator Custodian
-----------------------------------------------------------------------------------------------------------------------------------
Reference Criteria
-----------------------------------------------------------------------------------------------------------------------------------
agreements.
----------------------- ------------------------------------------------------
Payments made on behalf of an obligor (such as tax or
insurance payments) are made on or before the related
penalty or expiration dates, as indicated on the
appropriate bills or notices for such payments,
provided that such support has been received by the
servicer at least 30 calendar days prior to these
dates, or such other number of days specified in
1122(d)(4)(xi) the transaction agreements.
----------------------- ------------------------------------------------------
Any late payment penalties in connection with any
payment to be made on behalf of an obligor are paid
from the servicer's funds and not charged to the
obligor, unless the late payment was due to
1122(d)(4)(xii) the obligor's error or omission.
----------------------- ------------------------------------------------------
Disbursements made on behalf of an obligor are posted
within two business days to the obligor's records
maintained by the servicer, or such other number of
1122(d)(4)(xiii) days specified in the transaction agreements.
----------------------- ------------------------------------------------------
Delinquencies, charge-offs and uncollectible accounts
are recognized and recorded in accordance with the
1122(d)(4)(xiv) transaction agreements.
----------------------- ------------------------------------------------------
Any external enhancement or other support,
identified in Item 1114(a)(1) through (3) or Item
1115 of Regulation AB, is maintained as set forth
1122(d)(4)(xv) in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
K-6
EXHIBIT L
FORM OF REQUEST FOR RELEASE OF DOCUMENTS
To: U.S. Bank National Assoc. Attention: Document Custody Services
0000 Xxxxxx Xxxxx 000 Xxxxxxxxx Xxxx
XX-XX-XXXX FAX: (000) 000-0000 or 000-0000
Xx. Xxxx, XX 00000
RE: Custodial Agreement between U.S. Bank National Association, a custodian,
and ___________________ as the company stated in the "agreement".
In connection with and pursuant to Section____________, of the agreement, we
request the release and acknowledge of the custodial file for the mortgage
loan described below, for the reason indicated:
FROM: Servicer:__________________________________________, City/State_________
SERVICER LOAN #: ___________________________, U.S. BANK#______________________,
Deal Name: ____________________,
Mortgagor's Name: ______________________________ Original loan amount: ________
Property Address: ________________________________ Payment amount: ____________
City/State/Zip: _______________________________ Interest rate: ________________
REASON FOR REQUESTING DOCUMENTS (check one)
________1. Loan paid in full
________2. Loan in foreclosure
________3. Loan being substituted
________4. Loan being liquidated by company
________5. Other (please explain) ____________________________________________
If box 1 or 4 above is checked, and if all or part of the Custodial File was
previously released to us, then please provide a copy of the previous release
request (RR) to us as well as any additional documents in your possession
relating to the above specified mortgage loan.
If box 2 or 5 above is checked, then upon our return to you as custodian, all
of the documents for the above specified mortgage loan, please acknowledge
your receipt by signing in the space indicated below, and returning this form
to us.
COMPANY NAME:____________________________________________PHONE#________________
AUTHORIZED SIGNER: ____________________________________________________________
NAME(TYPED):_______________________________________________DATE:_______________
PHONE #:_____________________________________________________ DATE:____________
PLEASE MAIL DOCUMENTS BACK TO:
______________________________________________________________________________
____________________________________________________________________
X-0
XXXXXXX X-0
FORM OF REQUEST FOR RELEASE OF DOCUMENTS
To: Deutsche Bank National Trust Company
0000 Xxxx Xx. Xxxxxx Xxxxx,
Xxxxx Xxx, Xxxxxxxxxx 00000
Attention: Mortgage Custody - GS06AC
RE: Master Servicing and Trust Agreement, dated as of April 1, 2006 (the
"Agreement"), among GS Mortgage Securities Corp., as depositor (the
"Depositor"), U.S. Bank National Association, as trustee (in such capacity,
the "Trustee") and as a custodian, JPMorgan Chase Bank, National Association,
and Deutsche Bank National Trust Company, each as a custodian, and Xxxxx Fargo
Bank, N.A., as master servicer (in such capacity, the "Master Servicer"),
securities administrator (in such capacity, the "Securities Administrator")
and custodian.
In connection with and pursuant to Section____________, of the agreement, we
request the release and acknowledge of the custodial file for the mortgage
loan described below, for the reason indicated below. Further, any payments
received by the Servicer in connection with this request for release have been
deposited in the Distribution Account for the benefit of the Trust:
FROM: Servicer:__________________________________________, City/State_________
SERVICER LOAN #: ___________________________, DEUTSCHE BANK#__________________,
Deal Name: ____________________,
Mortgagor's Name: ______________________________ Original loan amount: ________
Property Address: ________________________________ Payment amount: ____________
City/State/Zip: _______________________________ Interest rate: ________________
REASON FOR REQUESTING DOCUMENTS (check one)
________1. Loan paid in full
________2. Loan in foreclosure
________3. Loan being substituted
________4. Loan being liquidated by company
________5. Other (please explain) ____________________________________________
If box 1 or 4 above is checked, and if all or part of the Custodial File was
previously released to us, then please provide a copy of the previous release
request (RR) to us as well as any additional documents in your possession
relating to the above specified mortgage loan.
If box 2 or 5 above is checked, then upon our return to you as custodian, all
of the documents for the above specified mortgage loan, please acknowledge
your receipt by signing in the space indicated below, and returning this form
to us.
COMPANY NAME:____________________________________________PHONE#________________
AUTHORIZED SIGNER: ____________________________________________________________
NAME(TYPED):_______________________________________________DATE:_______________
PHONE #:_____________________________________________________ DATE:____________
PLEASE MAIL DOCUMENTS BACK TO:
______________________________________________________________________________
____________________________________________________________________
X-0
XXXXXXX X-0
FORM OF REQUEST FOR RELEASE OF DOCUMENTS
To: JPMorgan Chase Bank, National Association
0000 Xxxxxxxxxx Xxxx., Xxxxx 000,
Xxxxxx, Xxxxx 00000
RE: Master Servicing and Trust Agreement, dated as of April 1, 2006 (the
"Agreement"), among GS Mortgage Securities Corp., as depositor (the
"Depositor"), U.S. Bank National Association, as trustee (in such capacity,
the "Trustee") and as a custodian, JPMorgan Chase Bank, National Association,
and Deutsche Bank National Trust Company, each as a custodian, and Xxxxx Fargo
Bank, N.A., as master servicer (in such capacity, the "Master Servicer"),
securities administrator (in such capacity, the "Securities Administrator")
and custodian.
In connection with and pursuant to Section____________, of the agreement, we
request the release and acknowledge of the custodial file for the mortgage
loan described below, for the reason indicated below. Further, any payments
received by the Servicer in connection with this request for release have been
deposited in the Distribution Account for the benefit of the Trust:
FROM: Servicer:__________________________________________, City/State_________
SERVICER LOAN #: ___________________________, JPMORGAN BANK#__________________,
Deal Name: ____________________,
Mortgagor's Name: ______________________________ Original loan amount: ________
Property Address: ________________________________ Payment amount: ____________
City/State/Zip: _______________________________ Interest rate: ________________
REASON FOR REQUESTING DOCUMENTS (check one)
________1. Loan paid in full
________2. Loan in foreclosure
________3. Loan being substituted
________4. Loan being liquidated by company
________5. Other (please explain) ____________________________________________
If box 1 or 4 above is checked, and if all or part of the Custodial File was
previously released to us, then please provide a copy of the previous release
request (RR) to us as well as any additional documents in your possession
relating to the above specified mortgage loan.
If box 2 or 5 above is checked, then upon our return to you as custodian, all
of the documents for the above specified mortgage loan, please acknowledge
your receipt by signing in the space indicated below, and returning this form
to us.
COMPANY NAME:____________________________________________PHONE#________________
AUTHORIZED SIGNER: ____________________________________________________________
NAME(TYPED):_______________________________________________DATE:_______________
PHONE #:_____________________________________________________ DATE:____________
PLEASE MAIL DOCUMENTS BACK TO:
______________________________________________________________________________
____________________________________________________________________
X-0
XXXXXXX X-0
FORM OF REQUEST FOR RELEASE OF DOCUMENTS
To: Xxxxx Fargo Bank, N. A.
0000 00xx Xxx XX
Xxxxxxxxxxx, XX 00000
Attn: GSAA 2006-6
RE: Master Servicing and Trust Agreement, dated as of April 1, 2006 (the
"Agreement"), among GS Mortgage Securities Corp., as depositor (the
"Depositor"), U.S. Bank National Association, as trustee (in such capacity,
the "Trustee") and as a custodian, JPMorgan Chase Bank, National Association,
and Deutsche Bank National Trust Company, each as a custodian, and Xxxxx Fargo
Bank, N.A., as master servicer (in such capacity, the "Master Servicer"),
securities administrator (in such capacity, the "Securities Administrator")
and custodian.
In connection with and pursuant to Section____________, of the agreement, we
request the release and acknowledge of the custodial file for the mortgage
loan described below, for the reason indicated below. Further, any payments
received by the Servicer in connection with this request for release have been
deposited in the Distribution Account for the benefit of the Trust:
FROM: Servicer:__________________________________________, City/State_________
SERVICER LOAN #: ___________________________, JPMORGAN BANK#__________________,
Deal Name: ____________________,
Mortgagor's Name: ______________________________ Original loan amount: ________
Property Address: ________________________________ Payment amount: ____________
City/State/Zip: _______________________________ Interest rate: ________________
REASON FOR REQUESTING DOCUMENTS (check one)
________1. Loan paid in full
________2. Loan in foreclosure
________3. Loan being substituted
________4. Loan being liquidated by company
________5. Other (please explain) ____________________________________________
If box 1 or 4 above is checked, and if all or part of the Custodial File was
previously released to us, then please provide a copy of the previous release
request (RR) to us as well as any additional documents in your possession
relating to the above specified mortgage loan.
If box 2 or 5 above is checked, then upon our return to you as custodian, all
of the documents for the above specified mortgage loan, please acknowledge
your receipt by signing in the space indicated below, and returning this form
to us.
COMPANY NAME:____________________________________________PHONE#________________
AUTHORIZED SIGNER: ____________________________________________________________
NAME(TYPED):_______________________________________________DATE:_______________
PHONE #:_____________________________________________________ DATE:____________
PLEASE MAIL DOCUMENTS BACK TO:
______________________________________________________________________________
____________________________________________________________________
L-4
EXHIBIT M
Master Mortgage Loan Purchase Agreement, dated as of July 1, 2004, between
Countrywide Home Loans, Inc. and Xxxxxxx Sachs Mortgage Company, as amended by
Amendment Reg AB
[See Exhibit 99.9 to Form 8-K/A filed with the Commission on March 13, 2006,
Accession No. 0000905148-06-002297]
M-1
EXHIBIT N
Mortgage Loan Sale and Servicing Agreement, among American Home Mortgage
Corp., American Home Mortgage Servicing, Inc. and Xxxxxxx Xxxxx Mortgage
Company, dated as of December 1, 2005
Exhibit N
EXECUTION COPY
------------------------------------------------------------------------------
MORTGAGE LOAN SALE AND SERVICING AGREEMENT
between
AMERICAN HOME MORTGAGE CORP.,
as Seller,
AMERICAN HOME MORTGAGE SERVICING, INC.,
as Servicer,
and
XXXXXXX SACHS MORTGAGE COMPANY,
as Purchaser
Dated as of December 1, 2005
Conventional,
Fixed and Adjustable Rate,
Residential Mortgage Loans
------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
----
SECTION 1. DEFINITIONS......................................................1
SECTION 2. PURCHASE AND CONVEYANCE.........................................17
SECTION 3. MORTGAGE LOAN SCHEDULE..........................................18
SECTION 4. PURCHASE PRICE..................................................18
SECTION 5. EXAMINATION OF MORTGAGE FILES...................................18
SECTION 6. DELIVERY OF MORTGAGE LOAN DOCUMENTS.............................19
Subsection 6.01 Possession of Mortgage Files.......................19
Subsection 6.02 Books and Records..................................19
Subsection 6.03 Delivery of Mortgage Loan Documents................20
Subsection 6.04 MERS Designated Loans..............................21
SECTION 7. REPRESENTATIONS, WARRANTIES AND COVENANTS; REMEDIES FOR BREACH..21
Subsection 7.01 Representations and Warranties Regarding
Individual Mortgage Loans...........................21
Subsection 7.02 Seller and Servicer Representations.................31
Subsection 7.03 Remedies for Breach of Representations and
Warranties..........................................31
SECTION 8. CLOSING..........................................................31
SECTION 9. CLOSING DOCUMENTS................................................31
SECTION 10. COSTS............................................................31
SECTION 11. ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS...............31
Subsection 11.01 Servicer to Act as Servicer.........................31
Subsection 11.02 Liquidation of Mortgage Loans.......................31
Subsection 11.03 Collection of Mortgage Loan Payments................31
Subsection 11.04 Establishment of Custodial Account; Deposits in
Custodial Account...................................31
-i-
Subsection 11.05 Withdrawals From the Custodial Account..............31
Subsection 11.06 Establishment of Escrow Account; Deposits in
Escrow Account......................................31
Subsection 11.07 Withdrawals From Escrow Account.....................31
Subsection 11.08 Payment of Taxes, Insurance and Other Charges;
Collections Thereunder..............................31
Subsection 11.09 Transfer of Accounts................................31
Subsection 11.10 Maintenance of Hazard Insurance.....................31
Subsection 11.11 Fidelity Bond; Errors and Omissions Insurance.......31
Subsection 11.12 Title, Management and Disposition of REO Property...31
Subsection 11.13 Servicing Compensation..............................31
Subsection 11.14 Distributions.......................................31
Subsection 11.15 Statements to the Purchaser.........................31
Subsection 11.16 Advances by the Servicer............................31
Subsection 11.17 Assumption Agreements...............................31
Subsection 11.18 Satisfaction of Mortgages and Release of Mortgage
Files...............................................31
Subsection 11.19 Annual Statement as to Compliance...................31
Subsection 11.20 Annual Independent Public Accountants' Servicing
Report or Attestation...............................31
Subsection 11.21 Servicer Shall Provide Access and Information as
Reasonably Required.................................31
Subsection 11.22 Transfer of Servicing...............................31
Subsection 11.23 Notification of Maturity Date.......................31
Subsection 11.24 Notification of Adjustments.........................31
SECTION 12. THE SERVICER.....................................................31
Subsection 12.01 Indemnification; Third Party Claims.................31
Subsection 12.02 Merger or Consolidation of the Seller and the
Servicer............................................31
Subsection 12.03 Limitation on Liability of the Servicer and Others..31
Subsection 12.04 Seller and Servicer Not to Resign...................31
SECTION 13. DEFAULT..........................................................31
Subsection 13.01 Events of Default...................................31
Subsection 13.02 Waiver of Defaults..................................31
SECTION 14. TERMINATION......................................................31
Subsection 14.01 Termination.........................................31
Subsection 14.02 Termination of the Servicer Without Cause...........31
Subsection 14.03 Successors to the Servicer..........................31
SECTION 15. COOPERATION OF SELLER WITH A RECONSTITUTION......................31
SECTION 16. NOTICES..........................................................31
-ii-
SECTION 17. SEVERABILITY CLAUSE..............................................31
SECTION 18. NO PARTNERSHIP...................................................31
SECTION 19. COUNTERPARTS.....................................................31
SECTION 20. GOVERNING LAW JURISDICTION; CONSENT TO SERVICE OF PROCESS........31
SECTION 21. MANDATORY DELIVERY; GRANT OF SECURITY INTEREST...................31
SECTION 22. INTENTION OF THE PARTIES.........................................31
SECTION 23. SUCCESSORS AND ASSIGNS...........................................31
SECTION 24. WAIVERS..........................................................31
SECTION 25. EXHIBITS.........................................................31
SECTION 26. GENERAL INTERPRETIVE PRINCIPLES..................................31
SECTION 27. REPRODUCTION OF DOCUMENTS........................................31
SECTION 28. AMENDMENT........................................................31
SECTION 29. CONFIDENTIALITY..................................................31
SECTION 30. ENTIRE AGREEMENT.................................................31
SECTION 31. FURTHER AGREEMENTS...............................................31
SECTION 32. NO SOLICITATION..................................................31
SECTION 33. WAIVER OF JURY TRIAL.............................................31
SECTION 34. COMPLIANCE WITH REGULATION AB....................................31
Subsection 34.01 (a) Intent of the Parties; Reasonableness...........31
Subsection 34.02 Additional Representations and Warranties of the
Seller and the Servicer.............................31
Subsection 34.03 Information to Be Provided by the Seller and the
Servicer............................................31
-iii-
Subsection 34.04 Servicer Compliance Statement.......................31
Subsection 34.05 Report on Assessment of Compliance and Attestation..31
Subsection 34.06 Use of Subservicers and Subcontractors..............31
Subsection 34.07 Indemnification; Remedies...........................31
Subsection 34.08 Loan Performance Information........................31
EXHIBITS
EXHIBIT 1 MORTGAGE LOAN DOCUMENTS
EXHIBIT 2 CONTENTS OF EACH MORTGAGE FILE
EXHIBIT 3 FORM OF INDEMNIFICATION AND CONTRIBUTION AGREEMENT
EXHIBIT 4 FORM OF CUSTODIAL ACCOUNT CERTIFICATION
EXHIBIT 5 FORM OF CUSTODIAL ACCOUNT LETTER AGREEMENT
EXHIBIT 6 FORM OF ESCROW ACCOUNT CERTIFICATION
EXHIBIT 7 FORM OF ESCROW ACCOUNT LETTER AGREEMENT
EXHIBIT 8 SELLER'S UNDERWRITING GUIDELINES
EXHIBIT 9 REQUIRED FIELDS OF MONTHLY REMITTANCE REPORT
EXHIBIT 10 FORM OF SELLER'S OFFICER'S CERTIFICATE
EXHIBIT 11 FORM OF OPINION OF COUNSEL TO THE SELLER
EXHIBIT 12 FORM OF SECURITY RELEASE CERTIFICATION
EXHIBIT 13 FORM OF SECURITY RELEASE CERTIFICATION
EXHIBIT 14 FORM OF ASSIGNMENT AND CONVEYANCE AGREEMENT
EXHIBIT 15 FORM OF ASSIGNMENT AND RECOGNITION AGREEMENT
EXHIBIT 16 FORM OF ANNUAL CERTIFICATION
EXHIBIT 17 SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
-iv-
MORTGAGE LOAN SALE AND SERVICING AGREEMENT
THIS MORTGAGE LOAN SALE AND SERVICING AGREEMENT (the "Agreement"),
dated as of December 1, 2005 is hereby executed by and between XXXXXXX XXXXX
MORTGAGE COMPANY, a New York limited partnership (the "Purchaser"), and
AMERICAN HOME MORTGAGE CORP., a New York corporation (the "Seller") and
American Home Mortgage Servicing, Inc., a Maryland corporation (the
"Servicer").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Seller desires to sell, from time to time, to the
Purchaser, and the Purchaser desires to purchase, from time to time, from the
Seller, certain conventional fixed and adjustable rate residential first-lien
mortgage loans (the "Mortgage Loans") on a servicing-retained basis as
described herein, and which shall be delivered in pools of whole loans (each,
a "Mortgage Loan Package") on various dates as provided herein (each, a
"Closing Date");
WHEREAS, each Mortgage Loan is secured by a mortgage, deed of
trust or other security instrument creating a first lien on a residential
dwelling located in the jurisdiction indicated on the Mortgage Loan Schedule
for the related Mortgage Loan Package;
WHEREAS, the Purchaser, the Seller and the Servicer wish to
prescribe the manner of the conveyance, servicing and control of the Mortgage
Loans; and
WHEREAS, following its purchase of the Mortgage Loans from the
Seller, the Purchaser desires to sell some or all of the Mortgage Loans to one
or more purchasers as a whole loan transfer or a public or private, rated or
unrated mortgage pass-through transaction.
NOW, THEREFORE, in consideration of the premises and mutual
agreements set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Purchaser,
the Seller and the Servicer agree as follows:
Section 1. Definitions. For purposes of this Agreement, the
following capitalized terms shall have the respective meanings set forth
below.
Accepted Servicing Procedures: Procedures (including collection
procedures) that the Servicer customarily employs and exercises in servicing
and administering mortgage loans for its own account that are similar to the
Mortgage Loans and which are in accordance with accepted mortgage servicing
practices of prudent mortgage lending institutions which service mortgage
loans of the same type as the Mortgage Loans in the jurisdictions where the
related Mortgaged Properties are located.
Adjustable Rate Mortgage Loan: A Mortgage Loan purchased pursuant
to this Agreement, the Mortgage Interest Rate of which is adjusted from time
to time in accordance with the terms of the related Mortgage Note.
Affiliate: With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect
to any specified Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Agency Transfer: A Xxxxxx Mae Transfer or a Xxxxxxx Mac Transfer.
Agreement: This Mortgage Loan Sale and Servicing Agreement
including all exhibits, schedules, amendments and supplements hereto.
ALTA: The American Land Title Association.
Appraised Value: With respect to any Mortgaged Property, the
lesser of (i) the value thereof as determined by an appraisal made for the
originator of the Mortgage Loan at the time of origination of the Mortgage
Loan by a Qualified Appraiser and (ii) the purchase price paid for the related
Mortgaged Property by the Mortgagor with the proceeds of the Mortgage Loan;
provided, however, that in the case of a Refinanced Mortgage Loan, such value
of the Mortgaged Property is based solely upon the value determined by an
appraisal made for the originator of such Refinanced Mortgage Loan at the time
of origination of such Refinanced Mortgage Loan by a Qualified Appraiser.
Assignment and Conveyance Agreement: As defined in Section 2.
Assignment of Mortgage: An individual assignment of the Mortgage,
notice of transfer or equivalent instrument in recordable form and in blank,
sufficient under the laws of the jurisdiction in which the related Mortgaged
Property is located to give record notice of the sale of the Mortgage to the
Purchaser.
Balloon Mortgage Loan: Any Mortgage Loan (a) that requires only
payments of interest until the stated maturity date of the Mortgage Loan or
(b) for which Monthly Payments of principal (not including the payment due on
its stated maturity date) are based on an amortization schedule that would be
insufficient to fully amortize the principal thereof by the stated maturity
date of the Mortgage Loan.
Business Day: Any day other than a Saturday or Sunday, or a day on
which banking and savings and loan institutions in the state in which (i) the
Servicer is located or (ii) the Custodial Account is maintained, are
authorized or obligated by law or executive order to be closed.
Cash-Out Refinance: A Refinanced Mortgage Loan in which the
proceeds received were in excess of the amount of funds required to repay the
principal balance of any existing first mortgage on the related Mortgaged
Property, pay related closing costs and satisfy
-2-
any outstanding subordinate mortgages on the related Mortgaged Property and
which provided incidental cash to the related Mortgagor of more than 1% of the
original principal balance of such Mortgage Loan.
Closing Date: The date or dates on which the Purchaser from time
to time shall purchase, and the Seller from time to time shall sell, the
Mortgage Loans listed on the related Mortgage Loan Schedule with respect to
the related Mortgage Loan Package.
Closing Documents: The documents required to be delivered on each
Closing Date pursuant to Section 9.
CLTA: The California Land Title Association.
Code: The Internal Revenue Code of 1986, as amended, or any
successor statute thereto.
Commission: The United States Securities and Exchange Commission.
Condemnation Proceeds: All awards, compensation and settlements in
respect of a taking of all or part of a Mortgaged Property, whether permanent
or temporary, partial or entire, by exercise of the power of condemnation or
the right of eminent domain, to the extent not required to be released to a
Mortgagor in accordance with the terms of the related Mortgage Loan Documents.
Co-op: A private, cooperative housing corporation, having only one
class of stock outstanding, which owns or leases land and all or part of a
building or buildings, including apartments, spaces used for commercial
purposes and common areas therein and whose board of directors authorizes the
sale of stock and the issuance of a Co-op Lease.
Co-op Lease: With respect to a Co-op Loan, the lease with respect
to a dwelling unit occupied by the Mortgagor and relating to the stock
allocated to the related dwelling unit.
Co-op Loan: A Mortgage Loan secured by the pledge of stock
allocated to a dwelling unit in a residential cooperative housing corporation
and a collateral assignment of the related Co-op Lease.
Covered Loan: A Mortgage Loan categorized as Covered pursuant to
Appendix E of Standard & Poor's Glossary.
Custodial Account: As defined in Subsection 11.04.
Custodial Agreement: The agreement governing the retention of the
originals of each Mortgage Note, Mortgage, Assignment of Mortgage and other
Mortgage Loan Documents. If more than one Custodial Agreement is in effect at
any given time, all of the individual Custodial Agreements shall collectively
be referred to as the "Custodial Agreement."
-3-
Custodian: Deutsche Bank National Trust Company, a national
banking association, and its successors in interest, or any successor to the
Custodian under the Custodial Agreement as therein provided.
Cut-off Date: The date or dates designated as such on the related
Mortgage Loan Schedule with respect to the related Mortgage Loan Package.
Cut-off Date Principal Balance: The aggregate Stated Principal
Balance of the Mortgage Loans as of the applicable Cut-off Date which is
determined after the application, to the reduction of principal, of payments
of principal due on or before such Cut-off Date, whether or not collected, and
of partial principal prepayments received before such Cut-off Date.
Deleted Mortgage Loan: A Mortgage Loan that is repurchased or to
be repurchased or replaced or to be replaced with a Qualified Substitute
Mortgage Loan by the Seller in accordance with the terms of this Agreement.
Delinquent Mortgage Loans: As defined in Subsection 11.01.
Depositor: The depositor, as such term is defined in Regulation
AB, with respect to any Securitization Transaction.
Determination Date: With respect to each Remittance Date, the 15th
day (or, if such 15th day is not a Business Day, the following Business Day)
of the month in which such Remittance Date occurs.
Due Date: With respect to each Remittance Date, the first day of
the calendar month in which such Remittance Date occurs, which is the day on
which the Monthly Payment is due on a Mortgage Loan, exclusive of any days of
grace.
Due Period: With respect to each Remittance Date and any Mortgage
Loan, the period beginning on the second day of the month preceding such
Remittance Date through and including the first day of the month in which such
Remittance Date occurs.
Eligible Investments: Any one or more of the following obligations
or securities:
(a) obligations of or guaranteed as to principal and interest by
Xxxxxxx Mac, Xxxxxx Xxx or any agency or instrumentality of the United States
when such obligations are backed by the full faith and credit of the United
States; provided, however, that such obligations of Xxxxxxx Mac or Xxxxxx Xxx
shall be limited to senior debt obligations and mortgage participation
certificates except that investments in mortgage-backed or mortgage
participation securities with yields evidencing extreme sensitivity to the
rate of principal payments on the underlying mortgages shall not constitute
Eligible Investments hereunder;
(b) repurchase agreements on obligations specified in clause (a)
maturing not more than one month from the date of acquisition thereof;
(c) federal funds, certificates of deposit, demand deposits, time
deposits and bankers' acceptances (which shall each have an original maturity
of not more than ninety
-4-
(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
thirty (30) days) denominated in United States dollars of any United States
depository institution or trust company incorporated under the laws of the
United States or any state thereof or of any domestic branch of a foreign
depository institution or trust company;
(d) commercial paper (having original maturities of not more than
365 days) of any corporation incorporated under the laws of the United States
or any state thereof which is rated not lower than "P-2" by Xxxxx'x Investors
Service, Inc. and rated not lower than "A-2" by Standard & Poor's; and
(e) a money market fund;
provided, however, that no instrument shall be an Eligible Investment if it
represents, either (1) the right to receive only interest payments with
respect to the underlying debt instrument or (2) the right to receive both
principal and interest payments derived from obligations underlying such
instrument and the principal and interest with respect to such instrument
provide a yield to maturity greater than 120% of the yield to maturity at par
of such underlying obligations.
Escrow Account: As defined in Subsection 11.06.
Escrow Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed
by the Mortgagor with the Mortgagee pursuant to the Mortgage or any other
document.
Event of Default: Any one of the conditions or circumstances
enumerated in Subsection 13.01.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Xxxxxx Xxx: The Federal National Mortgage Association or any
successor thereto.
Xxxxxx Mae Guides: The Xxxxxx Xxx Xxxxxxx' Guide and the Xxxxxx
Mae Servicers' Guide, as amended or restated from time to time.
Xxxxxx Xxx Transfer: As defined in Section 15.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHA: The Federal Housing Administration, an agency within the
United States Department of Housing and Urban Development, or any successor
thereto and including the Federal Housing Commissioner and the Secretary of
Housing and Urban Development where appropriate under the FHA Regulations.
-5-
Fidelity Bond: The fidelity bond required to be obtained by the
Servicer pursuant to Subsection 11.11.
FIRREA: The Financial Institutions Reform, Recovery, and
Enforcement Act of 1989, as amended and in effect from time to time.
Fixed Rate Mortgage Loan: A fixed rate mortgage loan purchased
pursuant to this Agreement.
Xxxxxxx Mac: The Federal Home Loan Mortgage Corporation, or any
successor thereto.
Xxxxxxx Mac Transfer: As defined in Section 15.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan,
the fixed percentage amount set forth in the related Mortgage Note which
amount is added to the Index in accordance with the terms of the related
Mortgage Note to determine on each Interest Rate Adjustment Date the Mortgage
Interest Rate for such Mortgage Loan.
High Cost Loan: A Mortgage Loan (a) covered by the Home Ownership
and Equity Protection Act of 1994, (b) classified as a "high cost home,"
"threshold," "covered," (excluding New Jersey "Covered Home Loans" as that
term was defined in clause (1) of the definition of that term in the New
Jersey Home Ownership Security Act of 2002 that were originated between
November 26, 2003 and July 7, 2004), "high risk home," "predatory" or similar
loan under any other applicable state, federal or local law (or a similarly
classified loan using different terminology under a law imposing heightened
regulatory scrutiny or additional legal liability for residential mortgage
loans having high interest rates, points and/or fees) or (c) a Mortgage Loan
categorized as High Cost pursuant to Appendix E of Standard & Poor's Glossary.
For avoidance of doubt, the parties agree that this definition shall apply to
any law regardless of whether such law is presently, or in the future becomes,
the subject of judicial review or litigation.
Home Loan: A Mortgage Loan categorized as a Home Loan pursuant to
Appendix E of Standard & Poor's Glossary.
HUD: The Department of Housing and Urban Development, or any
federal agency or official thereof which may from time to time succeed to the
functions thereof with regard to Mortgage Insurance issued by the FHA. The
term "HUD," for purposes of this Agreement, is also deemed to include
subdivisions thereof such as the FHA and Government National Mortgage
Association.
Index: The index indicated in the related Mortgage Note for each
Adjustable Rate Mortgage Loan.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds
of insurance policies insuring the Mortgage Loan or the related Mortgaged
Property.
-6-
Interest Rate Adjustment Date: With respect to each Adjustable
Rate Mortgage Loan, the date, specified in the related Mortgage Note and the
related Mortgage Loan Schedule, on which the Mortgage Interest Rate is
adjusted.
Interim Funder: With respect to each MERS Designated Mortgage
Loan, the Person named on the MERS System as the interim funder pursuant to
the MERS Procedures Manual.
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.
Lifetime Rate Cap: The provision of each Mortgage Note related to
an Adjustable Rate Mortgage Loan which provides for an absolute maximum
Mortgage Interest Rate thereunder. The Mortgage Interest Rate during the term
of each Adjustable Rate Mortgage Loan shall not at any time exceed the
Mortgage Interest Rate at the time of origination of such Adjustable Rate
Mortgage Loan by more than the amount per annum set forth on the related
Mortgage Loan Schedule.
Liquidation Proceeds: The proceeds received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or
assignment of such Mortgage Loan, trustee's sale, foreclosure sale or
otherwise or the sale of the related Mortgaged Property if the Mortgaged
Property is acquired in satisfaction of the Mortgage Loan, other than amounts
received following the acquisition of REO Property, Insurance Proceeds and
Condemnation Proceeds.
Loan-to-Value Ratio: With respect to any Mortgage Loan, as of any
date of determination, the ratio (expressed as a percentage) the numerator of
which is the outstanding principal balance of the Mortgage Loan as of the
related Cut-off Date (unless otherwise indicated), and the denominator of
which is the lesser of (a) the Appraised Value of the Mortgaged Property at
origination and (b) if the Mortgage Loan was made to finance the acquisition
of the related Mortgaged Property, the purchase price of the Mortgaged
Property.
LPMI Fee: With respect to each Mortgage Loan which has an LPMI
Policy, the portion of the Mortgage Interest Rate as set forth on the related
Mortgage Loan Schedule (which shall be payable solely from the interest
portion of Monthly Payments, Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds), which, during such period prior to the required
cancellation of the LPMI Policy, shall be used to pay the premium due on the
related LPMI Policy.
LPMI Loan: Any Mortgage Loan with respect to which Servicer is
responsible for paying the premium due on the related LPMI Policy with the
proceeds generated by the LPMI Fee relating to such Mortgage Loan, as set
forth on the related Mortgage Loan Schedule.
LPMI Policy: A policy of primary mortgage guaranty insurance
issued by an insurer acceptable under the Underwriting Guidelines and
qualified to do business in the jurisdiction where the Mortgaged Property is
located, pursuant to which the related premium is to be paid by the Servicer
of the related Mortgage Loan from payments of interest made by the Mortgagor
in an amount as is set forth in the related Mortgage Loan Schedule.
-7-
LTV: Loan-to-Value Ratio.
Manufactured Home: A single family residential unit that is
constructed in a factory in sections in accordance with the Federal
Manufactured Home Construction and Safety Standards adopted on June 15, 1976,
by the Department of Housing and Urban Development ("HUD Code"), as amended in
2000, which preempts state and local building codes. Each unit is identified
by the presence of a HUD Plate/Compliance Certificate label. The sections are
then transported to the site and joined together and affixed to a pre-built
permanent foundation (which satisfies the manufacturer's requirements and all
state, county, and local building codes and regulations). The manufactured
home is built on a non-removable, permanent frame chassis that supports the
complete unit of walls, floors, and roof. The underneath part of the home may
have running gear (wheels, axles, and brakes) that enable it to be transported
to the permanent site. The wheels and hitch are removed prior to anchoring the
unit to the permanent foundation. The manufactured home must be classified as
real estate and taxed accordingly. The permanent foundation may be on land
owned by the mortgager or may be on leased land.
MERS: Mortgage Electronic Registration Systems, Inc., a Delaware
corporation, and its successors in interest.
MERS Designated Mortgage Loan: Mortgage Loans for which (a) the
Seller has designated or will designate MERS as, and has taken or will take
such action as is necessary to cause MERS to be, the mortgagee of record, as
nominee for the Seller, in accordance with the MERS Procedures Manual and (b)
the Seller has designated or will designate the Purchaser 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 Report: The report from the MERS System listing MERS
Designated Mortgage Loans and other information.
MERS System: MERS mortgage electronic registry system, as more
particularly described in the MERS Procedures Manual.
Monthly Payment: With respect to any Mortgage Loan, the scheduled
payment of principal and interest payable by a Mortgagor under the related
Mortgage Note on each Due Date.
Mortgage: With respect to a Mortgage Loan that is not a Co-op
Loan, the mortgage, deed of trust or other instrument securing a Mortgage
Note, which creates a first lien on the Mortgaged Property. With respect to a
Co-op Loan, the Security Agreement.
Mortgage File: With respect to any Mortgage Loan, the Mortgage
Loan Documents and the items listed in Exhibit 2 hereto and any additional
documents required to be added to the Mortgage File pursuant to this
Agreement.
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Mortgage Interest Rate: With respect to each Mortgage Loan, the
annual rate at which interest accrues on such Mortgage Loan from time to time
in accordance with the provisions of the related Mortgage Note.
Mortgage Loan: Each mortgage loan sold, assigned and transferred
pursuant to this Agreement and identified on the applicable Mortgage Loan
Schedule, which Mortgage Loan includes, without limitation, the Mortgage File,
the Monthly Payments, Principal Prepayments, Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds, REO Disposition Proceeds, 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: With respect to any Mortgage Loan, the
documents listed in Exhibit 1 hereto.
Mortgage Loan Package: Each pool of Mortgage Loans, which shall be
purchased by the Purchaser from the Seller from time to time on each Closing
Date.
Mortgage Loan Remittance Rate: With respect to each Mortgage Loan,
the annual rate of interest payable to the Purchaser, which shall be equal to
the related Mortgage Interest Rate minus the related Servicing Fee Rate.
Mortgage Loan Schedule: The schedule of Mortgage Loans setting
forth the following information with respect to each Mortgage Loan in the
related Mortgage Loan Package: (1) the Seller's Mortgage Loan identifying
number; (2) the Mortgagor's name; (3) the social security number of the
Mortgagor; (4) a code indicating whether the Mortgagor's race and/or ethnicity
is (i) native American or Alaskan native, (ii) Asian/Pacific islander, (iii)
African American, (iv) white, (v) Hispanic or Latino, (vi) other minority,
(vii) not provided by the Mortgagor, (viii) not applicable (if the Mortgagor
is an entity) and (ix) unknown or missing; (5) the street address of the
Mortgaged Property including the city, state and zip code; (6) a code
indicating whether the Mortgagor is self-employed; (7) a code indicating
whether the Mortgaged Property is owner-occupied, investment property or a
second home; (8) a code indicating the number and type of residential units
constituting the Mortgaged Property (e.g. single family residence, two-family
residence, three-family residence, four-family residence, multifamily
residence, condominium, manufactured housing, mixed-use property, raw land and
other non-residential properties, planned unit development or cooperative
stock in a cooperative housing corporation); (9) the original months to
maturity or the remaining months to maturity from the related Cut-off Date, in
any case based on the original amortization schedule and, if different, the
maturity expressed in the same manner but based on the actual amortization
schedule; (10) the Loan-to-Value Ratio at origination; (11) the Mortgage
Interest Rate as of the related Cut-off Date; (12) the date on which the first
Monthly Payment was due on the Mortgage Loan and, if such date is not
consistent with the Due Date currently in effect, the Due Date; (13) the
stated maturity date; (14) the amount of the Monthly Payment as of the related
Cut-off Date; (15) the last payment date on which a payment was actually
applied to the outstanding principal balance; (16) the schedule of the payment
delinquencies in the prior 12 months; (17) the original principal amount of
the Mortgage Loan; (18) the principal balance of the Mortgage Loan as of the
close of business on the related Cut-off Date, after deduction of payments of
principal due and collected on or before the related Cut-off Date; (19)
whether the
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Mortgage Loan has Monthly Payments that are interest-only for a period of
time, and the interest-only period, if applicable; (20) with respect to each
Mortgage Loan with a second lien behind it, the combined principal balance of
the Mortgage Loan and the applicable second lien loan, as of the close of
business on the related Cut-off Date, after deduction of payments of principal
due and collected on or before the related Cut-off Date; (21) a code
indicating whether there is a simultaneous second; (22) with respect to
Adjustable Rate Mortgage Loans, the Interest Rate Adjustment Date; (23) with
respect to Adjustable Rate Mortgage Loans, the Gross Margin; (24) with respect
to Adjustable Rate Mortgage Loans, the Lifetime Rate Cap under the terms of
the Mortgage Note; (25) with respect to Adjustable Rate Mortgage Loans, a code
indicating the type of Index, including the methodology for rounding (e.g.
rounded upward, if necessary, to the nearest ten thousandth (.0001)) and the
applicable time frame for determining the Index; (26) the product type of
Mortgage Loan (i.e., Fixed Rate, Adjustable Rate); (27) a code indicating the
purpose of the loan (i.e., purchase, Rate/Term Refinance or Cash-Out
Refinance); (28) a code indicating the documentation style (i.e. no documents,
full, alternative, reduced, no income/no asset, stated income, no ration,
reduced or NIV); (29) asset verification (Y/N); (30) the loan credit
classification (as described in the Underwriting Guidelines); (31) whether
such Mortgage Loan provides for a Prepayment Penalty; (32) the Prepayment
Penalty period of such Mortgage Loan, if applicable; (33) a description of the
Prepayment Penalty, if applicable; (34) the Mortgage Interest Rate as of
origination; (35) the credit risk score (FICO score); (36) the date of
origination; (37) with respect to Adjustable Rate Mortgage Loans, the Mortgage
Interest Rate adjustment period; (38) with respect to Adjustable Rate Mortgage
Loans, the Mortgage Interest Rate adjustment percentage; (39) with respect to
Adjustable Rate Mortgage Loans, the Mortgage Interest Rate floor; (40) the
Mortgage Interest Rate calculation method (i.e., 30/360, simple interest,
other); (41) with respect to Adjustable Rate Mortgage Loans, the Periodic Rate
Cap as of the first Interest Rate Adjustment Date; (42) with respect to each
Adjustable Rate Mortgage Loan, a code indicating whether the Mortgage Loan
provides for negative amortization; (43) a code indicating whether the
Mortgage Loan has negative amortization and the maximum of such negative
amortization; (44) a code indicating whether the Mortgage Loan is a Balloon
Mortgage Loan; (45) a code indicating whether the Mortgage Loan by its
original terms or any modifications thereof provides for amortization beyond
its scheduled maturity date; (46) the original Monthly Payment due; (47) the
Appraised Value; (48) appraisal type; (49) appraisal date (50) a code
indicating whether the Mortgage Loan is covered by a PMI Policy and, if so,
identifying the PMI Policy provider; (51) the certificate number of the PMI
Policy, if applicable; (52) the amount of coverage of the PMI Policy, if
applicable; (53) in connection with a condominium unit, a code indicating
whether the condominium project where such unit is located is low-rise or
high-rise; (54) a code indicating whether the Mortgaged Property is a
leasehold estate; (55) with respect to the related Mortgagor, the
debt-to-income ratio; (56) sales price; (57) automated valuation model (AVM);
(58) a code indicating whether the Mortgage Loan is a MERS Designated Mortgage
Loan and the MERS Identification Number, if applicable; (59) a field
indicating whether such Mortgage Loan is a Home Loan; (60) the DU or LP
number, if applicable; and (61) a code indicating if the Mortgage Loan is a
High Cost Loan or Home Loan as such terms are defined in the then current
Standard & Poor's Glossary. With respect to the Mortgage Loans in the
aggregate, the related Mortgage Loan Schedule shall set forth the following
information, as of the related Cut-off Date: (1) the number of Mortgage Loans;
(2) the current aggregate outstanding principal balance of the Mortgage Loans;
(3) the weighted average Mortgage Interest Rate of the Mortgage Loans; (4) the
weighted average maturity of the
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Mortgage Loans; (5) the average principal balance of the Mortgage Loans; (6)
the applicable Cut-off Date; and (7) the applicable Closing Date.
Mortgage Note: The original executed note or other evidence of the
Mortgage Loan indebtedness of a Mortgagor, including any riders or addenda
thereto.
Mortgaged Property: With respect to a Mortgage Loan that is not a
Co-op Loan, the Mortgagor's real property securing repayment of a related
Mortgage Note, consisting of an unsubordinated estate in fee simple or, with
respect to real property located in jurisdictions in which the use of
leasehold estates for residential properties is a widely-accepted practice, a
leasehold estate, in a single parcel or multiple parcels of real property
improved by a Residential Dwelling. With respect to a Co-op Loan, the stock
allocated to a dwelling unit in the residential cooperative housing
corporation that was pledged to secure such Co-op Loan and the related Co-op
Lease.
Mortgagee: The mortgagee or beneficiary named in the Mortgage and
the successors and assigns of such mortgagee or beneficiary.
Mortgagor: The obligor on a Mortgage Note, who is an owner of the
Mortgaged Property and the grantor or mortgagor named in the Mortgage and such
grantor's or mortgagor's successors in title to the Mortgaged Property.
NAIC: The National Association of Insurance Commissioners or any
successor thereto.
OCC: Office of the Comptroller of the Currency, or any successor
thereto.
Officer's Certificate: A certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, a President or a Vice President and by
the Treasurer, the Secretary, or one of the Assistant Treasurers or the
Assistant Secretaries of the Person on behalf of whom such certificate is
being delivered.
Opinion of Counsel: A written opinion of counsel, who may be an
employee of the Seller or the Servicer, reasonably acceptable to the
Purchaser.
OTS: The Office of Thrift Supervision or any successor thereto.
Owner: As defined in Subsection 11.12.
P&I Advance: As defined in Subsection 11.16.
Payment Adjustment Date: As to each Adjustable Rate Mortgage Loan,
the date on which an adjustment to the Monthly Payment on a Mortgage Note
becomes effective.
Periodic Rate Cap: With respect to each Adjustable Rate Mortgage
Loan, the provision of each Mortgage Note which provides for an absolute
maximum amount by which the Mortgage Interest Rate therein may increase or
decrease on an Interest Rate Adjustment Date above or below the Mortgage
Interest Rate previously in effect. The Periodic Rate Cap for each
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Adjustable Rate Mortgage Loan is the rate set forth as such on the related
Mortgage Loan Schedule.
Periodic Rate Floor: With respect to each Adjustable Rate Mortgage
Loan, the provision of each Mortgage Note which provides for an absolute
maximum amount by which the Mortgage Interest Rate therein may decrease on an
Interest Rate Adjustment Date below the Mortgage Interest Rate previously in
effect.
Person: Any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof.
PMI Policy: A policy of primary mortgage guaranty insurance issued
by an insurer acceptable under the Underwriting Guidelines and qualified to do
business in the jurisdiction where the Mortgaged Property is located.
Preliminary Mortgage Schedule: As defined in Section 3.
Prepayment Penalty: With respect to each Mortgage Loan, the amount
of any premium or penalty required to be paid by the Mortgagor if the
Mortgagor prepays such Mortgage Loan as provided in the related Mortgage Note
or Mortgage.
Prime Rate: The prime rate announced to be in effect from time to
time, as published as the average rate in The Wall Street Journal (Northeast
edition).
Principal Prepayment: Any payment or other recovery of principal
on a Mortgage Loan which is received in advance of its scheduled Due Date,
including any Prepayment Penalty thereon, and which is not accompanied by an
amount of interest representing scheduled interest due on any date or dates in
any month or months subsequent to the month of prepayment.
Purchase Price: The price paid on the related Closing Date by the
Purchaser to the Seller in exchange for the Mortgage Loans purchased on such
Closing Date as calculated in Section 4 of this Agreement.
Purchase Price and Terms Agreement: Each of those certain
agreements setting forth the general terms and conditions of the purchase and
sale of the Mortgage Loans to be purchased from time to time hereunder, each
by and between the Seller and the Purchaser.
Purchase Price Percentage: The percentage of par (expressed as
decimal) set forth in the related Purchase Price and Terms Agreement.
Purchaser: Xxxxxxx Xxxxx Mortgage Company, a New York limited
partnership, and its successors in interest and assigns, or any successor to
the Purchaser under this Agreement as herein provided.
Qualified Appraiser: An appraiser, duly appointed by the
originator, who had no interest, direct or indirect, in the Mortgaged Property
or in any loan made on the security thereof, and whose compensation was not
affected by the approval or disapproval of the Mortgage Loan,
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and such appraiser and the appraisal made by such appraiser both satisfied the
requirements of Title XI of FIRREA and the regulations promulgated thereunder,
all as in effect on the date the Mortgage Loan was originated.
Qualified Correspondent: Any Person from which the Seller
purchased Mortgage Loans, provided that the following conditions are
satisfied: (i) such Mortgage Loans were originated pursuant to an agreement
between the Seller and such Person that contemplated that such Person would
underwrite mortgage loans from time to time, for sale to the Seller, in
accordance with underwriting guidelines designated by the Seller ("Designated
Guidelines") or guidelines that do not vary materially from such Designated
Guidelines; (ii) such Mortgage Loans were in fact underwritten as described in
clause (i) above and were acquired by the Seller within 180 days after
origination; (iii) either (x) the Designated Guidelines were, at the time such
Mortgage Loans were originated, used by the Seller in origination of mortgage
loans of the same type as the Mortgage Loans for the Seller's own account or
(y) the Designated Guidelines were, at the time such Mortgage Loans were
underwritten, designated by the Seller on a consistent basis for use by
lenders in originating mortgage loans to be purchased by the Seller; and (iv)
the Seller employed, at the time such Mortgage Loans were acquired by the
Seller, pre-purchase or post-purchase quality assurance procedures (which may
involve, among other things, review of a sample of mortgage loans purchased
during a particular time period or through particular channels) designed to
ensure that Persons from which it purchased mortgage loans properly applied
the underwriting criteria designated by the Seller.
Qualified Substitute Mortgage Loan: A mortgage loan eligible to be
substituted by the Seller for a Deleted Mortgage Loan which must, on the date
of such substitution, be approved by the Purchaser and (i) have an unpaid
principal balance, after deduction of all scheduled payments due in the month
of substitution (or in the case of a substitution of more than one mortgage
loan for a Deleted Mortgage Loan, an aggregate principal balance), not in
excess of the unpaid principal balance of the Deleted Mortgage Loan (the
amount of any shortfall will be deposited in the Custodial Account by the
Seller in the month of substitution); (ii) have a Mortgage Interest Rate not
less than and not more than one percent (1%) greater than the Mortgage
Interest Rate of the Deleted Mortgage Loan; (iii) have a remaining term to
maturity not greater than and not more than one (1) year less than that of the
Deleted Mortgage Loan; (iv) be of the same type as the Deleted Mortgage Loan
(i.e., fixed rate or adjustable rate with same Mortgage Interest Rate Cap and
Index); (v) comply as of the date of substitution with each representation and
warranty set forth in Subsection 7.01 of this Agreement; (vi) be current in
the payment of principal and interest; (vii) be secured by a Mortgaged
Property of the same type and occupancy status as secured the Deleted Mortgage
Loan; and (viii) have payment terms that do not vary in any material respect
from those of the Deleted Mortgage Loan.
Rate/Term Refinance: A Refinanced Mortgage Loan, in which the
proceeds received were not in excess of the amount of funds required to repay
the principal balance of any existing first mortgage loan on the related
Mortgaged Property, pay related closing costs and satisfy any outstanding
subordinate mortgages on the related Mortgaged Property and did not provide
incidental cash to the related Mortgagor of more than one percent (1%) of the
original principal balance of such Mortgage Loan.
Reconstitution: Any Securitization Transaction or Whole Loan
Transfer.
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Reconstitution Agreement: As defined in Section 15.
Record Date: The close of business of the last Business Day of the
month preceding the month of the related Remittance Date.
Refinanced Mortgage Loan: A Mortgage Loan the proceeds of which
were not used to purchase the related Mortgaged Property.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended
from time to time, and subject to such clarification and interpretation as
have been provided by the Commission in the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531
(Jan. 7, 2005)) or by the staff of the Commission, or as may be provided by
the Commission or its staff from time to time.
Remittance Date: No later than 1:00 p.m. New York time on the 18th
day of any month (or, if such 18th day is not a Business Day, the following
Business Day).
REO Disposition: The final sale by the Servicer of an REO
Property.
REO Disposition Proceeds: All amounts received with respect to an
REO Disposition pursuant to Subsection 11.12.
REO Property: A Mortgaged Property acquired by the Servicer
through foreclosure or deed in lieu of foreclosure, as described in Subsection
11.12.
Repurchase Price: With respect to any Mortgage Loan, a price equal
to the sum of: (i) the unpaid principal balance of such Mortgage Loan, (ii)
accrued interest on such unpaid principal balance at the applicable Mortgage
Interest Rate from the applicable Cut-off Date through the last day of the
month in which such repurchase takes place, (iii) the amount of any
outstanding advances owed to any servicer if the Seller is not the Servicer,
and (iv) all costs and expenses incurred by the Purchaser or any servicer
arising out of or based upon such breach, including without limitation costs
and expenses incurred in the enforcement of the Seller's repurchase obligation
hereunder.
Residential Dwelling: Any one of the following: (i) a detached
one-family dwelling, (ii) a detached two- to four-family dwelling, (iii) a
one-family dwelling unit in a condominium project, or (iv) a one-family
dwelling in a planned unit development, none of which is a co-operative,
mobile or Manufactured Home.
Securities Act: The federal Securities Act of 1933, as amended.
Securitization Transaction: Any transaction involving either (1) a
sale or other transfer of some or all of the Mortgage Loans directly or
indirectly to an issuing entity in connection with an issuance of publicly
offered or privately placed, rated or unrated mortgage-backed securities or
(2) an issuance of publicly offered or privately placed, rated or unrated
securities, the payments on which are determined primarily by reference to one
or more
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portfolios of residential mortgage loans consisting, in whole or in part, of
some or all of the Mortgage Loans.
Security Agreement: The agreement creating a security interest in
the stock allocated to a dwelling unit in the residential cooperative housing
corporation that was pledged to secure such Co-op Loan and the related Co-op
Lease.
Seller: As defined in the initial paragraph of this Agreement,
together with its successors in interest.
Servicer: As defined in the initial paragraph of this Agreement,
together with its successors and assigns as permitted under the terms of this
Agreement.
Servicer Information: As defined in Subsection 34.07(a).
Servicing Advances: All customary, reasonable and necessary
out-of-pocket costs and expenses incurred in the performance by the Servicer
of its servicing obligations, including, but not limited to, the cost of (i)
the preservation, restoration and protection of the Mortgaged Property, (ii)
any enforcement or judicial proceedings, including foreclosures, (iii) the
management and liquidation of the Mortgaged Property if the Mortgaged Property
is acquired in satisfaction of the Mortgage, and (iv) payments made by the
Servicer with respect to a Mortgaged Property pursuant to Subsection 11.08.
Servicing Criteria: The "servicing criteria" set forth in Item
1122(d) of Regulation AB, as such may be amended from time to time.
Servicing Fee: With respect to each Mortgage Loan, the amount of
the annual fee the Purchaser shall pay to the Servicer, which shall, for each
month, be equal to one-twelfth of (i) the product of the Servicing Fee Rate
and (ii) the Stated Principal Balance of such Mortgage Loan. Such fee shall be
payable monthly, computed on the basis of the same principal amount and period
respecting which any related interest payment on a Mortgage Loan is computed,
and if the Servicer is terminated or resigns hereunder shall be pro rated
(based upon the number of days of the related month the Servicer so acted as
Servicer relative to the number of days in that month) for each part thereof.
The obligation of the Purchaser to pay the Servicing Fee is limited to, and
payable solely from, the interest portion (including recoveries with respect
to interest from Liquidation Proceeds and other proceeds, to the extent
permitted by Subsection 11.05) of related Monthly Payments collected by the
Servicer, or as otherwise provided under Subsection 11.05.
Servicing Fee Rate: With respect to each Mortgage Loan, the per
annum rate set forth in the applicable Purchase Price and Terms Agreement.
Servicing File: With respect to each Mortgage Loan, the portion of
the Mortgage File, excluding the Mortgage Loan Documents, retained by the
Servicer pursuant to the terms of this Agreement.
Servicing Officer: Any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name appears on a list of servicing
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officers furnished to the Purchaser by the Servicer, as such list may be
amended from time to time.
Servicing Rights: Any and all of the following: (a) any and all
rights to service the Mortgage Loans; (b) any payments to or monies received
by the Seller for servicing the Mortgage Loans; (c) any late fees, penalties
or similar payments with respect to the Mortgage Loans; (d) all agreements or
documents creating, defining or evidencing any such servicing rights to the
extent they relate to such servicing rights and all rights of the Seller
thereunder; (e) Escrow Payments or other similar payments with respect to the
Mortgage Loans and any amounts actually collected by the Seller with respect
thereto; (f) all accounts and other rights to payment related to any of the
property described in this paragraph; and (g) any and all documents, files,
records, servicing files, servicing documents, servicing records, data tapes,
computer records, or other information pertaining to the Mortgage Loans or
pertaining to the past, present or prospective servicing of the Mortgage
Loans.
Standard & Poor's: Standard & Poor's Ratings Services, a division
of The XxXxxx-Xxxx Companies Inc., and any successor thereto.
Standard & Poor's Glossary: The Standard & Poor's LEVELS(R)
Glossary, as may be in effect from time to time.
Stated Principal Balance: As to each Mortgage Loan as to any date
of determination, (i) the principal balance of the Mortgage Loan at the
related Cut-off Date after giving effect to payments of principal due on or
before such date, whether or not received, minus (ii) all amounts previously
distributed to the Purchaser with respect to the related Mortgage Loan
representing payments or recoveries of principal, or advances in lieu thereof
on such Mortgage Loan.
Static Pool Information: Static pool information as described in
Item 1105(a)(1)-(3) and 1105(c) of Regulation AB.
Subcontractor: Any vendor, subcontractor or other Person that is
not responsible for the overall servicing (as "servicing" is commonly
understood by participants in the mortgage-backed securities market) of
Mortgage Loans but performs one or more discrete functions identified in Item
1122(d) of Regulation AB with respect to Mortgage Loans under the direction or
authority of the Seller or a Subservicer.
Subservicer: Any Person that services Mortgage Loans on behalf of
the Seller or any Subservicer and is responsible for the performance (whether
directly or through Subservicers or Subcontractors) of a substantial portion
of the material servicing functions required to be performed by the Seller
under this Agreement or any Reconstitution Agreement that are identified in
Item 1122(d) of Regulation AB.
Successor Servicer: Any servicer of one or more Mortgage Loans
designated by the Purchaser as being entitled to the benefits of the
indemnifications set forth in Subsections 7.03 and 12.01.
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Third-Party Originator: Each Person, other than a Qualified
Correspondent, that originated Mortgage Loans acquired by the Seller.
Transaction Servicer: As defined in Subsection 34.03(c).
Transfer Date: In the event the Servicer is terminated as servicer
of a Mortgage Loan pursuant to Subsections 12.04, 13.01, 14.01(c) or 14.02,
the date on which the Purchaser, or its designee, shall receive the transfer
of servicing responsibilities and begin to perform the servicing of such
Mortgage Loans, and the Seller, as Servicer, shall cease all servicing
responsibilities.
Underwriting Guidelines: The underwriting guidelines of the
Seller, a copy of which is attached hereto as Exhibit 8 and a then-current
copy of which shall be attached as an exhibit to the related Assignment and
Conveyance.
Whole Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans, other than a Securitization Transaction.
Section 2. Purchase and Conveyance. The Seller agrees to sell from
time to time, and the Purchaser agrees to purchase from time to time, Mortgage
Loans having an aggregate principal balance on the related Cut-off Date in an
amount as set forth in the related Purchase Price and Terms Agreement, or in
such other amount as agreed by the Purchaser and the Seller as evidenced by
the actual aggregate principal balance of the Mortgage Loans accepted by the
Purchaser on each Closing Date, together with the related Mortgage Files and
all rights and obligations arising under the documents contained therein. The
Seller, simultaneously with the delivery of the Mortgage Loan Schedule with
respect to the related Mortgage Loan Package to be purchased on each Closing
Date, shall execute and deliver an Assignment and Conveyance Agreement in the
form attached hereto as Exhibit 14 (the "Assignment and Conveyance
Agreement").
With respect to each Mortgage Loan purchased, the Purchaser shall
own and be entitled to receive: (a) all scheduled principal due after the
related Cut-off Date, (b) all other payments and/or recoveries of principal
collected after the related Cut-off Date (provided, however, that all
scheduled payments of principal due on or before the related Cut-off Date and
collected by the Servicer after the related Cut-off Date shall belong to the
Seller), and (c) all payments of interest on the Mortgage Loans, net of the
Servicing Fee (minus that portion of any such interest payment that is
allocable to the period prior to the related Cut-off Date).
For the purposes of this Agreement, payments of scheduled
principal and interest prepaid for a Due Date beyond the related Cut-off Date
shall not be applied to reduce the Stated Principal Balance as of the related
Cut-off Date. Such prepaid amounts (minus the applicable Servicing Fee) shall
be the property of the Purchaser. The Seller shall remit to the Servicer for
deposit any such prepaid amounts into the Custodial Account, which account is
established for the benefit of the Purchaser, for remittance by the Servicer
to the Purchaser on the appropriate Remittance Date. All payments of principal
and interest, less the applicable Servicing Fee, due on a Due Date following
the related Cut-off Date shall belong to the Purchaser.
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Section 3. Mortgage Loan Schedule. The Seller from time to time
shall provide the Purchaser with certain information constituting a
preliminary listing of the Mortgage Loans to be purchased on each Closing Date
in accordance with the related Purchase Price and Terms Agreement and this
Agreement (each, a "Preliminary Mortgage Schedule").
The Seller shall deliver the related Mortgage Loan Schedule for
the Mortgage Loans to be purchased on a particular Closing Date to the
Purchaser at least five (5) Business Days prior to the related Closing Date.
The related Mortgage Loan Schedule shall be the related Preliminary Mortgage
Schedule with those Mortgage Loans which have not been funded prior to the
related Closing Date deleted.
Section 4. Purchase Price. The Purchase Price for each Mortgage
Loan shall be the percentage of par as stated in the related Purchase Price
and Terms Agreement (subject to adjustment as provided therein), multiplied by
the aggregate principal balance, as of the related Cut-off Date, of the
Mortgage Loans listed on the related Mortgage Loan Schedule, after application
of scheduled payments of principal due on or before the related Cut-off Date,
but only to the extent such payments were actually received. The initial
principal amount of the related Mortgage Loans shall be the aggregate
principal balance of the Mortgage Loans, so computed as of the related Cut-off
Date. If so provided in the related Purchase Price and Terms Agreement,
portions of the Mortgage Loans shall be priced separately.
In addition to the Purchase Price as described above, the
Purchaser shall pay to the Seller, at closing, accrued interest on the current
principal amount of the related Mortgage Loans as of the related Cut-off Date
at the weighted average Mortgage Interest Rate of those Mortgage Loans. The
Purchase Price plus accrued interest as set forth in the preceding paragraph
shall be paid to the Seller by wire transfer of immediately available funds to
an account designated by the Seller in writing.
Section 5. Examination of Mortgage Files. At least ten (10)
Business Days prior to the related Closing Date, the Seller shall either (a)
deliver to the Purchaser or its designee in escrow, for examination with
respect to each Mortgage Loan to be purchased, the related Mortgage File,
including a copy of the Assignment of Mortgage, pertaining to each Mortgage
Loan, or (b) make the related Mortgage File available to the Purchaser for
examination at such other location as shall otherwise be acceptable to the
Purchaser. Such examination of the Mortgage Files may be made by the Purchaser
or its designee at any reasonable time before or after the related Closing
Date. If the Purchaser makes such examination prior to the related Closing
Date and determines, in its sole discretion, that any Mortgage Loans do not
conform to any of the requirements set forth in the related Purchase Price and
Terms Agreement, or as an Exhibit annexed thereto, the Purchaser may delete
such Mortgage Loans from the related Mortgage Loan Schedule, and such Deleted
Mortgage Loan (or Loans) may be replaced by a Qualified Substitute Mortgage
Loan (or Loans) acceptable to the Purchaser. The Purchaser may, at its option
and without notice to the Seller, purchase some or all of the Mortgage Loans
without conducting any partial or complete examination. The fact that the
Purchaser or its designee has conducted or has failed to conduct any partial
or complete examination of the Mortgage Files shall not impair in any way the
Purchaser's (or any of its successor's) rights to demand repurchase,
substitution or other relief as provided in this Agreement. In the event that
the Seller
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fails to deliver the Mortgage File with respect to any Mortgage Loan, the
Seller shall, upon the request of the Purchaser, repurchase such Mortgage Loan
as the price and in the manner specified in Subsection 7.03.
Section 6. Delivery of Mortgage Loan Documents.
Subsection 6.01 Possession of Mortgage Files. The contents of each
Mortgage File required to be retained by or delivered to the Servicer to
service the Mortgage Loans pursuant to this Agreement and thus not delivered
to the Purchaser, or its designee, are and shall be held in trust by the
Servicer for the benefit of the Purchaser as the owner thereof. The Servicer's
possession of any portion of each such Mortgage File is at the will of the
Purchaser for the sole purpose of facilitating servicing of the Mortgage Loans
pursuant to this Agreement, and such retention and possession by the Servicer
shall be in a custodial capacity only. The ownership of each Mortgage Note,
each Mortgage and the contents of each Mortgage File is vested in the
Purchaser and the ownership of all records and documents with respect to the
related Mortgage Loan prepared by or which come into the possession of the
Servicer shall immediately vest in the Purchaser and shall be retained and
maintained, in trust, by the Servicer at the will of the Purchaser in such
custodial capacity only. The Mortgage File retained by the Servicer with
respect to each Mortgage Loan pursuant to this Agreement shall be
appropriately identified in the Servicer's computer system and/or books and
records to reflect clearly the sale of such related Mortgage Loan to the
Purchaser. The Servicer shall release from its custody the contents of any
Mortgage File retained by it only in accordance with this Agreement, except
when such release is required in connection with a repurchase of any such
Mortgage Loan pursuant to Subsection 7.03 or if required under applicable law
or court order.
Subsection 6.02 Books and Records. Record title to each Mortgage
and the related Mortgage Note as of the related Closing Date shall be in the
name of the Seller; provided, however, that if a Mortgage has been recorded in
the name of MERS or its designee, the Seller is shown as the owner of the
related Mortgage Loan on the records of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained by MERS.
Notwithstanding the foregoing, ownership of each Mortgage and the related
Mortgage Note shall be vested solely in the Purchaser or the appropriate
designee of the Purchaser, as the case may be. All rights arising out of the
Mortgage Loans including, but not limited to, all funds received by the
Servicer after the related Cut-off Date on or in connection with a Mortgage
Loan as provided in Section 2 shall be vested in the Purchaser or one or more
designees of the Purchaser; provided, however, that all such funds received on
or in connection with a Mortgage Loan as provided in Section 2 shall be
received and held by the Servicer in trust for the benefit of the Purchaser or
the appropriate designee of the Purchaser, as the case may be, as the owner of
the Mortgage Loans pursuant to the terms of this Agreement.
It is the express intention of the parties that the transactions
contemplated by this Agreement be, and be construed as, a sale of the related
Mortgage Loans by the Seller and not a pledge of such Mortgage Loans by the
Seller to the Purchaser to secure a debt or other obligation of the Seller.
Consequently, the sale of each Mortgage Loan shall be reflected as a purchase
on the Purchaser's business records, tax returns and financial statements, and
as a sale of assets on the Seller's business records, tax returns and
financial statements.
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Subsection 6.03 Delivery of Mortgage Loan Documents. The Seller
shall, at least two (2) Business Days prior to the related Closing Date (or
such later date as the Purchaser may reasonably request), deliver and release
to the Purchaser, or its designee, the Mortgage Loan Documents with respect to
each Mortgage Loan pursuant to a bailee letter agreement. In connection with
the foregoing, the Seller shall indemnify the Purchaser and its present and
former directors, officers, employees and agents and any Successor Servicer
and its present and former directors, officers, employees and agents, and hold
such parties harmless against any losses, damages, penalties, fines,
forfeitures, legal fees and expenses and related costs, judgments, and other
costs and expenses based on or grounded upon, or resulting from, the fact that
any Mortgage Loan is not covered by an ALTA or CLTA lender's title insurance
policy. For purposes of the previous sentence, "Purchaser" shall mean the
Person then acting as the Purchaser under this Agreement and any and all
Persons who previously were "Purchasers" under this Agreement and "Successor
Servicer" shall mean any Person designated as the Successor Servicer pursuant
to this Agreement and any and all Persons who previously were "Successor
Servicers" pursuant to this Agreement.
To the extent received by it, the Servicer shall forward to the
Purchaser, or its designee, original documents evidencing an assumption,
modification, consolidation or extension of any Mortgage Loan entered into in
accordance with this Agreement within two (2) weeks after their execution;
provided, however, that the Servicer shall provide the Purchaser, or its
designee, with a copy, certified by the Servicer as a true copy, of any such
document submitted for recordation within two (2) weeks after its execution,
and shall promptly provide the original of any document submitted for
recordation or a copy of such document certified by the appropriate public
recording office to be a true and complete copy of the original within two (2)
weeks following receipt of the original document by the Servicer; provided,
however, that such original recorded document or certified copy thereof shall
be delivered to the Purchaser no later than 180 days following the related
Closing Date, unless there has been a delay at the applicable recording
office.
If the original or copy of any document submitted for recordation
to the appropriate public recording office is not delivered to the Purchaser
or its designee within 180 days following the related Closing Date, the
related Mortgage Loan shall, upon the request of the Purchaser, be repurchased
by the Seller at the price and in the manner specified in Subsection 7.03. The
foregoing repurchase obligation shall not apply if the Seller cannot cause the
Servicer to deliver such original or copy of any document submitted for
recordation to the appropriate public recording office within the specified
period due to a delay caused by the recording office in the applicable
jurisdiction; provided that (i) the Servicer shall instead deliver a recording
receipt of such recording office or, if such recording receipt is not
available, an officer's certificate of a servicing officer of the Servicer,
confirming that such document has been accepted for recording, and (ii) such
document is delivered within twelve (12) months of the related Closing Date.
The Seller shall pay all initial recording fees, if any, for the
Assignments of Mortgage and any other fees or costs in transferring all
original documents to the Custodian or, upon written request of the Purchaser,
to the Purchaser or the Purchaser's designee. The Purchaser or the Purchaser's
designee shall be responsible for recording the Assignments of
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Mortgage and shall be reimbursed by the Seller for the costs associated
therewith pursuant to the preceding sentence.
Subsection 6.04 MERS Designated Loans. With respect to each MERS
Designated Mortgage Loan, the Seller shall, on or prior to the related Closing
Date, designate the Purchaser as the Investor and the Custodian as custodian,
and no Person shall be listed as Interim Funder on the MERS System. In
addition, on or prior to the related Closing Date, Seller shall provide the
Custodian and the Purchaser with a MERS Report listing the Purchaser as the
Investor, the Custodian as custodian and no Person listed as Interim Funder
with respect to each MERS Designated Mortgage Loan.
Section 7.Representations, Warranties and Covenants; Remedies for
Breach.
Subsection 7.01 Representations and Warranties Regarding
Individual Mortgage Loans. The Seller hereby represents and warrants to the
Purchaser and its successors and assigns that, as to each Mortgage Loan, as of
the related Closing Date for such Mortgage Loan:
(a) Mortgage Loans as Described. The information set forth in the
related Mortgage Loan Schedule is complete, true and correct;
(b) Payments Current. All payments required to be made up to the
related Closing Date for the Mortgage Loan under the terms of the Mortgage
Note have been made and credited. No payment required under the Mortgage Loan
is 30 days or more delinquent nor has any payment under the Mortgage Loan been
30 days or more delinquent at any time since the origination of the Mortgage
Loan;
(c) No Outstanding Charges. There are no defaults in complying
with the terms of the Mortgage, and all taxes, governmental assessments,
insurance premiums, water, sewer and municipal charges, leasehold payments or
ground rents which previously became due and owing have been paid, or an
escrow of funds has been established in an amount sufficient to pay for every
such item which remains unpaid and which has been assessed but is not yet due
and payable. The Seller has not advanced funds, or induced, solicited or
knowingly received any advance of funds by a party other than the Mortgagor,
directly or indirectly, for the payment of any amount required under the
Mortgage Loan, except for interest accruing from the date of the Mortgage Note
or date of disbursement of the Mortgage Loan proceeds, whichever is earlier,
to the day which precedes by one month the related Due Date of the first
installment of principal and interest;
(d) Original Terms Unmodified. The terms of the Mortgage Note and
Mortgage have not been impaired, waived, altered or modified in any respect,
from the date of origination except by a written instrument which has been
recorded, if necessary to protect the interests of the Purchaser, and which
has been delivered to the Custodian or to such other Person as the Purchaser
shall designate in writing, and the terms of which are reflected in the
related Mortgage Loan Schedule. The substance of any such waiver, alteration
or modification has been approved by the issuer of any related PMI Policy and
the title insurer, if any, to the extent required by the policy, and its terms
are reflected on the related Mortgage Loan Schedule, if
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applicable. No Mortgagor has been released, in whole or in part, except in
connection with an assumption agreement, approved by the issuer of any related
PMI Policy and the title insurer, to the extent required by the policy, and
which assumption agreement is part of the Mortgage Loan File delivered to the
Custodian or to such other Person as the Purchaser shall designate in writing
and the terms of which are reflected in the related Mortgage Loan Schedule;
(e) No Defenses. The Mortgage Loan is not subject to any right of
rescission, set-off, counterclaim or defense, including without limitation the
defense of usury, nor will the operation of any of the terms of the Mortgage
Note or the Mortgage, or the exercise of any right thereunder, render either
the Mortgage Note or the Mortgage unenforceable, in whole or in part, or
subject to any right of rescission, set-off, counterclaim or defense,
including without limitation the defense of usury, and no such right of
rescission, set-off, counterclaim or defense has been asserted with respect
thereto;
(f) Hazard Insurance. Pursuant to the terms of the Mortgage, all
buildings or other improvements upon the Mortgaged Property are insured by a
generally acceptable insurer against loss by fire, hazards of extended
coverage and such other hazards as are provided for in the Underwriting
Guidelines and the Xxxxxx Xxx Guides or by Xxxxxxx Mac. If required by the
National Flood Insurance Act of 1968, as amended, each Mortgage Loan is
covered by a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration as in effect which policy
conforms with the Underwriting Guidelines and the Xxxxxx Xxx and Xxxxxxx Mac
guidelines. All individual insurance policies contain a standard mortgagee
clause naming the Seller and its successors and assigns as mortgagee, and all
premiums thereon have been paid. The Mortgage obligates the Mortgagor
thereunder to maintain the hazard insurance policy at the Mortgagor's cost and
expense, and on the Mortgagor's failure to do so, authorizes the holder of the
Mortgage to obtain and maintain such insurance at such Mortgagor's cost and
expense, and to seek reimbursement therefor from the Mortgagor. Where required
by state law or regulation, the Mortgagor has been given an opportunity to
choose the carrier of the required hazard insurance, provided the policy is
not a "master" or "blanket" hazard insurance policy covering a condominium, or
any hazard insurance policy covering the common facilities of a planned unit
development. The hazard insurance policy is the valid and binding obligation
of the insurer, is in full force and effect, and will be in full force and
effect and inure to the benefit of the Purchaser upon the consummation of the
transactions contemplated by this Agreement. The Seller has not engaged in,
and has no knowledge of the Mortgagor's having engaged in, any act or omission
which would impair the coverage of any such policy, the benefits of the
endorsement provided for herein, or the validity and binding effect of either
including, without limitation, no unlawful fee, commission, kickback or other
unlawful compensation or value of any kind has been or will be received,
retained or realized by any attorney, firm or other person or entity, and no
such unlawful items have been received, retained or realized by the Seller;
(g) Compliance with Applicable Laws. Any and all requirements of
any federal, state or local law applicable to each Mortgage Loan including,
without limitation, usury, truth-in-lending, real estate settlement
procedures, consumer credit protection, predatory and abusive lending, equal
credit opportunity and disclosure laws or unfair and deceptive practice laws
applicable to the Mortgage Loans, including, without limitation, any
provisions relating to a Prepayment Penalty, have been complied with, the
consummation of the transactions
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contemplated hereby will not involve the violation of any such laws or
regulations, and the Seller shall maintain in its possession, available for
the Purchaser's inspection, and shall deliver to the Purchaser upon demand,
evidence of compliance with all such requirements;
(h) No Satisfaction of Mortgage. The Mortgage has not been
satisfied, canceled, subordinated or rescinded, in whole or in part, and the
Mortgaged Property has not been released from the lien of the Mortgage, in
whole or in part, nor has any instrument been executed that would effect any
such release, cancellation, subordination or rescission. The Seller has not
waived the performance by the Mortgagor of any action, if the Mortgagor's
failure to perform such action would cause the Mortgage Loan to be in default,
nor has the Seller waived any default resulting from any action or inaction by
the Mortgagor;
(i) Type of Mortgaged Property. With respect to a Mortgage Loan
that is not a Co-op Loan and is not secured by an interest in a leasehold
estate, the Mortgaged Property is a fee simple estate that consists of a
single parcel of real property with a detached single family residence erected
thereon, or a two- to four-family dwelling, or an individual residential
condominium unit in a condominium project, or an individual unit in a planned
unit development (or, with respect to each Co-op Loan, an individual unit in a
residential cooperative housing corporation); provided, however, that any
condominium unit, planned unit development or residential cooperative housing
corporation shall conform with the Underwriting Guidelines. No portion of the
Mortgaged Property (or underlying Mortgaged Property, in the case of a Co-op
Loan) is used for commercial purposes, and since the date of origination, no
portion of the Mortgaged Property has been used for commercial purposes;
provided, that Mortgaged Properties which contain a home office shall not be
considered as being used for commercial purposes as long as the Mortgaged
Property has not been altered for commercial purposes and is not storing any
chemicals or raw materials other than those commonly used for homeowner
repair, maintenance and/or household purposes. None of the Mortgaged
Properties are Manufactured Homes, log homes, mobile homes, geodesic domes or
other unique property types;
(j) Valid First Lien. The Mortgage is a valid, subsisting,
enforceable and perfected, first lien on the Mortgaged Property, including all
buildings and improvements on the Mortgaged Property and all installations and
mechanical, electrical, plumbing, heating and air conditioning systems located
in or annexed to such buildings, and all additions, alterations and
replacements made at any time with respect to the foregoing. The lien of the
Mortgage is subject only to:
(i) the lien of current real property taxes and
assessments not yet due and payable;
(ii) covenants, conditions and restrictions, rights of way,
easements and other matters of the public record as of
the date of recording acceptable to prudent mortgage
lending institutions generally and specifically
referred to in the lender's title insurance policy
delivered to the originator of the Mortgage Loan and
(a) specifically referred to or otherwise considered
in the appraisal made for the originator of the
Mortgage Loan or (b) which do not
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adversely affect the Appraised Value of the Mortgaged
Property set forth in such appraisal; and
(iii) other matters to which like properties are commonly
subject which do not materially interfere with the
benefits of the security intended to be provided by
the Mortgage or the use, enjoyment, value or
marketability of the related Mortgaged Property.
Any security agreement, chattel mortgage or equivalent document
related to and delivered in connection with the Mortgage Loan establishes and
creates a valid, subsisting, enforceable and perfected first lien and first
priority security interest on the property described therein and the Seller
has full right to sell and assign the same to the Purchaser.
With respect to any Co-op Loan, the related Mortgage is a valid,
subsisting and enforceable first priority security interest on the related
cooperative shares securing the Mortgage Note, subject only to (a) liens of
the related residential cooperative housing corporation for unpaid assessments
representing the Mortgagor's pro rata share of the related residential
cooperative housing corporation's payments for its blanket mortgage, current
and future real property taxes, insurance premiums, maintenance fees and other
assessments to which like collateral is commonly subject and (b) other matters
to which like collateral is commonly subject which do not materially interfere
with the benefits of the security interest intended to be provided by the
related Security Agreement;
(k) Validity of Mortgage Documents. The Mortgage Note and the
Mortgage and any other agreement executed and delivered by a Mortgagor in
connection with a Mortgage Loan are genuine, and each is the legal, valid and
binding obligation of the maker thereof enforceable in accordance with its
terms (including, without limitation, any provisions therein relating to
Prepayment Penalties). All parties to the Mortgage Note, the Mortgage and any
other such related agreement had legal capacity to enter into the Mortgage
Loan and to execute and deliver the Mortgage Note, the Mortgage and any such
agreement, and the Mortgage Note, the Mortgage and any other such related
agreement have been duly and properly executed by other such related parties.
No fraud, error, omission, misrepresentation, negligence or similar occurrence
with respect to a Mortgage Loan has taken place on the part of the Seller in
connection with the origination of the Mortgage Loan or in the application of
any insurance in relation to such Mortgage Loan. The documents, instruments
and agreements submitted for loan underwriting were not falsified and contain
no untrue statement of material fact or omit to state a material fact required
to be stated therein or necessary to make the information and statements
therein not misleading. No fraud, error, omission, misrepresentation,
negligence or similar occurrence with respect to a Mortgage Loan has taken
place on the part of any Person, including without limitation, the Mortgagor,
any appraiser, any builder or developer, or any other party involved in the
origination of the Mortgage Loan or in the application for any insurance in
relation to such Mortgage Loan. The Seller has reviewed all of the documents
constituting the Servicing File and has made such inquiries as it deems
necessary to make and confirm the accuracy of the representations set forth
herein;
(l) Full Disbursement of Proceeds. The Mortgage Loan has been
closed and the proceeds of the Mortgage Loan have been fully disbursed and
there is no requirement for
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future advances thereunder, and any and all requirements as to completion of
any on-site or off-site improvement and as to disbursements of any escrow
funds therefor have been complied with. All costs, fees and expenses incurred
in making or closing the Mortgage Loan and the recording of the Mortgage were
paid, and the Mortgagor is not entitled to any refund of any amounts paid or
due under the Mortgage Note or Mortgage;
(m) Ownership. The Seller is the sole owner of record and holder
of the Mortgage Loan and the indebtedness evidenced by each Mortgage Note and
upon the sale of the Mortgage Loans to the Purchaser, the Seller will retain
the Mortgage Files or any part thereof with respect thereto not delivered to
the Custodian, the Purchaser or the Purchaser's designee, in trust only for
the purpose of servicing and supervising the servicing of each Mortgage Loan.
The Mortgage Loan is not assigned or pledged, and the Seller has good,
indefeasible and marketable title thereto, and has full right to transfer and
sell the Mortgage Loan to the Purchaser free and clear of any encumbrance,
equity, participation interest, lien, pledge, charge, claim or security
interest, and has full right and authority subject to no interest or
participation of, or agreement with, any other party, to sell and assign each
Mortgage Loan pursuant to this Agreement and following the sale of each
Mortgage Loan, the Purchaser will own such Mortgage Loan free and clear of any
encumbrance, equity, participation interest, lien, pledge, charge, claim or
security interest, except as may be required for the Servicer to service such
Mortgage Loan. The Seller intends to relinquish all rights to possess, control
and monitor the Mortgage Loan, except as may be required for the Servicer to
service such Mortgage Loan. After the related Closing Date, the Seller will
have no right to modify or alter the terms of the sale of the Mortgage Loan
and the Seller will have no obligation or right to repurchase the Mortgage
Loan or substitute another Mortgage Loan, except as provided in this
Agreement;
(n) Doing Business. All parties which have had any legal interest
in the Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise,
are (or, during the period in which they held and disposed of such interest,
were) (1) in compliance with any and all applicable licensing requirements of
the laws of the state wherein the Mortgaged Property is located, and (2)
either (i) organized under the laws of such state, or (ii) qualified to do
business in such state, or (iii) a federal savings and loan association, a
savings bank or a national bank having a principal office in such state, or
(3) not doing business in such state;
(o) LTV, PMI Policy. No Mortgage Loan has an LTV greater than
100%. Any Mortgage Loan that had at the time of origination an LTV in excess
of 80% is insured as to payment defaults by a PMI Policy. Any PMI Policy in
effect covers the related Mortgage Loan for the life of such Mortgage Loan.
All provisions of such PMI Policy have been and are being complied with, such
policy is in full force and effect, and all premiums due thereunder have been
paid. No action, inaction, or event has occurred and no state of facts exists
that has, or will result in the exclusion from, denial of, or defense to
coverage. Any Mortgage Loan subject to a PMI Policy obligates the Mortgagor
thereunder to maintain the PMI Policy and to pay all premiums and charges in
connection therewith. The Mortgage Interest Rate for the Mortgage Loan as set
forth on the related Mortgage Loan Schedule is net of any such insurance
premium;
(p) Title Insurance. With respect to a Mortgage Loan which is not
a Co-op Loan, the Mortgage Loan is covered by an ALTA lender's title insurance
policy or other generally acceptable form of policy or insurance acceptable
under the Underwriting Guidelines
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and to Xxxxxx Xxx or Xxxxxxx Mac and each such title insurance policy is
issued by a title insurer acceptable under the Underwriting Guidelines and to
Xxxxxx Mae or Xxxxxxx Mac and qualified to do business in the jurisdiction
where the Mortgaged Property is located, insuring the Seller, its successors
and assigns, as to the first priority lien of the Mortgage in the original
principal amount of the Mortgage Loan (or to the extent a Mortgage Note
provides for negative amortization, the maximum amount of negative
amortization in accordance with the Mortgage), subject only to the exceptions
contained in clauses (i) and (ii) of clause (j) of this Subsection 7.02, and
in the case of Adjustable Rate Mortgage Loans, against any loss by reason of
the invalidity or unenforceability of the lien resulting from the provisions
of the Mortgage providing for adjustment to the Mortgage Interest Rate and
Monthly Payment. Where required by state law or regulation, the Mortgagor has
been given the opportunity to choose the carrier of the required mortgage
title insurance. Additionally, such lender's title insurance policy
affirmatively insures ingress and egress, and against encroachments by or upon
the Mortgaged Property or any interest therein. The Seller, its successor and
assigns, are the sole insureds of such lender's title insurance policy, and
such lender's title insurance policy is valid and remains in full force and
effect and will be in force and effect upon the consummation of the
transactions contemplated by this Agreement. No claims have been made under
such lender's title insurance policy, and no prior holder of the related
Mortgage, including the Seller, has done, by act or omission, anything which
would impair the coverage of such lender's title insurance policy, including
without limitation, no unlawful fee, commission, kickback or other unlawful
compensation or value of any kind has been or will be received, retained or
realized by any attorney, firm or other person or entity, and no such unlawful
items have been received, retained or realized by the Seller;
(q) No Defaults. Other than payments due but not yet 30 days or
more delinquent, there is no default, breach, violation or event which would
permit acceleration existing under the Mortgage or the Mortgage Note and no
event which, with the passage of time or with notice and the expiration of any
grace or cure period, would constitute a default, breach, violation or event
which would permit acceleration, and neither the Seller nor any of its
affiliates nor any of their respective predecessors, have waived any default,
breach, violation or event which would permit acceleration;
(r) No Mechanics' Liens. There are no mechanics' or similar liens
or claims which have been filed for work, labor or material (and no rights are
outstanding that under law could give rise to such liens) affecting the
related Mortgaged Property which are or may be liens prior to, or equal or
coordinate with, the lien of the related Mortgage;
(s) Location of Improvements; No Encroachments. All improvements
which were considered in determining the Appraised Value of the Mortgaged
Property lay wholly within the boundaries and building restriction lines of
the Mortgaged Property, and no improvements on adjoining properties encroach
upon the Mortgaged Property. No improvement located on or being part of the
Mortgaged Property is in violation of any applicable zoning law or regulation;
(t) Origination; Payment Terms. The Mortgage Loan was originated
by a mortgagee approved by the Secretary of Housing and Urban Development
pursuant to Sections 203 and 211 of the National Housing Act, a savings and
loan association, a savings
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bank, a commercial bank, credit union, insurance company or other similar
institution which is supervised and examined by a federal or state authority.
Principal payments on the Mortgage Loan commenced no more than seventy days
after funds were disbursed in connection with the Mortgage Loan. The Mortgage
Interest Rate as well as, in the case of an Adjustable Rate Mortgage Loan, the
Lifetime Rate Cap and the Periodic Rate Cap and the Periodic Rate Floor are as
set forth on the related Mortgage Loan Schedule. The Mortgage Interest Rate is
adjusted, with respect to Adjustable Rate Mortgage Loans, on each Interest
Rate Adjustment Date to equal the Index plus the Gross Margin (rounded up or
down to the nearest 0.125%), subject to the Periodic Rate Cap. The Mortgage
Note is payable in equal monthly installments of principal and interest, which
installments of interest, with respect to Adjustable Rate Mortgage Loans, are
subject to change due to the adjustments to the Mortgage Interest Rate on each
Interest Rate Adjustment Date, with interest calculated and payable in
arrears, sufficient to amortize the Mortgage Loan fully by the stated maturity
date, over an original term of not more than thirty (30) years from
commencement of amortization. Unless otherwise specified on the related
Mortgage Loan Schedule, the Mortgage Loan is payable on the first day of each
month. The Mortgage Loan does not require a balloon payment on its stated
maturity date; and by its original terms or any modification thereof, does not
provide for amortization beyond its scheduled maturity date;
(u) Customary Provisions. The Mortgage contains customary and
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for the realization against the Mortgaged Property of the
benefits of the security provided thereby, including, (i) in the case of a
Mortgage designated as a deed of trust, by trustee's sale, and (ii) otherwise
by judicial foreclosure. Upon default by a Mortgagor on a Mortgage Loan and
foreclosure on, or trustee's sale of, the Mortgaged Property pursuant to the
proper procedures, the holder of the Mortgage Loan will be able to deliver
good and merchantable title to the Mortgaged Property. There is no homestead
or other exemption available to a Mortgagor which would interfere with the
right to sell the Mortgaged Property at a trustee's sale or the right to
foreclose the Mortgage, subject to applicable federal and state laws and
judicial precedent with respect to bankruptcy and right of redemption or
similar law;
(v) Conformance with Agency and Underwriting Guidelines. The
Mortgage Loan was underwritten in accordance with the Underwriting Guidelines
(a copy of which is attached to the related Assignment and Conveyance as
Exhibit C). The Mortgage Note and Mortgage are on forms acceptable to Xxxxxxx
Mac or Xxxxxx Mae and no representations have been made to a Mortgagor that
are inconsistent with the mortgage instruments used;
(w) Occupancy of the Mortgaged Property. The Mortgaged Property is
lawfully occupied under applicable law. All inspections, licenses and
certificates required to be made or issued with respect to all occupied
portions of the Mortgaged Property and, with respect to the use and occupancy
of the same, including but not limited to certificates of occupancy and fire
underwriting certificates, have been made or obtained from the appropriate
authorities. Unless otherwise specified on the related Mortgage Loan Schedule,
the Mortgagor represented at the time of origination of the Mortgage Loan that
the Mortgagor would occupy the Mortgaged Property as the Mortgagor's primary
residence;
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(x) No Additional Collateral. The Mortgage Note is not and has not
been secured by any collateral except the lien of the corresponding Mortgage
and the security interest of any applicable security agreement or chattel
mortgage referred to in clause (j) above;
(y) Deeds of Trust. In the event the Mortgage constitutes a deed
of trust, a trustee, authorized and duly qualified under applicable law to
serve as such, has been properly designated and currently so serves and is
named in the Mortgage, and no fees or expenses are or will become payable by
the Purchaser to the trustee under the deed of trust, except in connection
with a trustee's sale after default by the Mortgagor;
(z) Acceptable Investment. There are no circumstances or
conditions with respect to the Mortgage, the Mortgaged Property, the
Mortgagor, the Mortgage File or the Mortgagor's credit standing that can
reasonably be expected to cause private institutional investors who invest in
prime mortgage loans similar to the Mortgage Loan to regard the Mortgage Loan
as an unacceptable investment, cause the Mortgage Loan to become delinquent,
or adversely affect the value or marketability of the Mortgage Loan, or cause
the Mortgage Loan to prepay during any period materially faster or slower than
the mortgage loans originated by the Seller generally;
(aa) Delivery of Mortgage Documents. The Mortgage Note, the
Mortgage, the Assignment of Mortgage and any other documents required to be
delivered under this Agreement for each Mortgage Loan have been delivered to
the Custodian. The Seller is in possession of a complete, true and accurate
Mortgage File in compliance with Exhibit 2 attached hereto, except for such
documents the originals of which have been delivered to the Custodian;
(bb) Transfer of Mortgage Loans. The Assignment of Mortgage
(except with respect to any Mortgage that has been recorded in the name of
MERS or its designee) with respect to each Mortgage Loan is in recordable form
and is acceptable for recording under the laws of the jurisdiction in which
the Mortgaged Property is located;
(cc) Due-On-Sale. With respect to each Fixed Rate Mortgage Loan,
the Mortgage contains an enforceable provision for the acceleration of the
payment of the unpaid principal balance of the Mortgage Loan in the event that
the Mortgaged Property is sold or transferred without the prior written
consent of the Mortgagee thereunder;
(dd) Assumability. With respect to each Adjustable Rate Mortgage
Loan, the Mortgage Loan Documents provide that after the related first
Interest Rate Adjustment Date, a related Mortgage Loan may only be assumed if
the party assuming such Mortgage Loan meets certain credit requirements stated
in the Mortgage Loan Documents;
(ee) No Buydown Provisions; No Graduated Payments or Contingent
Interests. The Mortgage Loan does not contain provisions pursuant to which
Monthly Payments are paid or partially paid with funds deposited in any
separate account established by the Seller, the Mortgagor, or anyone on behalf
of the Mortgagor, or paid by any source other than the Mortgagor nor does it
contain any other similar provisions which may constitute a "buydown"
provision. The Mortgage Loan is not a graduated payment mortgage loan and the
Mortgage Loan does not have a shared appreciation or other contingent interest
feature;
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(ff) Consolidation of Future Advances. Any future advances made to
the Mortgagor prior to the applicable Cut-off Date have been consolidated with
the outstanding principal amount secured by the Mortgage, and the secured
principal amount, as consolidated, bears a single interest rate and single
repayment term. The lien of the Mortgage securing the consolidated principal
amount is expressly insured as having first lien priority by a title insurance
policy, an endorsement to the policy insuring the Mortgagee's consolidated
interest or by other title evidence acceptable to Xxxxxx Xxx and Xxxxxxx Mac.
The consolidated principal amount does not exceed the original principal
amount of the Mortgage Loan;
(gg) Mortgaged Property Undamaged; No Condemnation Proceedings.
There is no proceeding pending or threatened for the total or partial
condemnation of the Mortgaged Property. The Mortgaged Property is undamaged by
waste, fire, earthquake or earth movement, windstorm, flood, hurricane,
tornado or other casualty so as to affect adversely the value of the Mortgaged
Property as security for the Mortgage Loan or the use for which the premises
were intended and each Mortgaged Property is in good repair. There have not
been any condemnation proceedings with respect to the Mortgaged Property;
(hh) Collection Practices; Escrow Deposits; Interest Rate
Adjustments. The origination, servicing and collection practices used by the
Seller with respect to the Mortgage Loan have been in all respects in
compliance with Accepted Servicing Practices, applicable laws and regulations,
and have been in all respects legal and proper and prudent in the mortgage
origination and servicing business. With respect to escrow deposits and Escrow
Payments, all such payments are in the possession of, or under the control of,
the Seller and there exist no deficiencies in connection therewith for which
customary arrangements for repayment thereof have not been made. All Escrow
Payments have been collected in full compliance with state and federal law and
the provisions of the related Mortgage Note and Mortgage. An escrow of funds
is not prohibited by applicable law and has been established in an amount
sufficient to pay for every item that remains unpaid and has been assessed but
is not yet due and payable. No escrow deposits or Escrow Payments or other
charges or payments due the Seller have been capitalized under the Mortgage or
the Mortgage Note. All Mortgage Interest Rate adjustments have been made in
strict compliance with state and federal law and the terms of the related
Mortgage and Mortgage Note on the related Interest Rate Adjustment Date. If,
pursuant to the terms of the Mortgage Note, another index was selected for
determining the Mortgage Interest Rate, the same index was used with respect
to each Mortgage Note which required a new index to be selected, and such
selection did not conflict with the terms of the related Mortgage Note. The
Seller executed and delivered any and all notices required under applicable
law and the terms of the related Mortgage Note and Mortgage regarding the
Mortgage Interest Rate and the Monthly Payment adjustments. Any interest
required to be paid pursuant to state, federal and local law has been properly
paid and credited;
(ii) Conversion to Fixed Interest Rate. The Mortgage Loan does not
contain a provision whereby the Mortgagor is permitted to convert the Mortgage
Interest Rate from an adjustable rate to a fixed rate;
(jj) Other Insurance Policies; No Defense to Coverage. No action,
inaction or event has occurred and no state of facts exists or has existed on
or prior to the Closing Date that has resulted or will result in the exclusion
from, denial of, or defense to coverage under any
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applicable hazard insurance policy, PMI Policy or bankruptcy bond (including,
without limitation, any exclusions, denials or defenses which would limit or
reduce the availability of the timely payment of the full amount of the loss
otherwise due thereunder to the insured), irrespective of the cause of such
failure of coverage. The Seller has caused or will cause to be performed any
and all acts required to preserve the rights and remedies of the Purchaser in
any insurance policies applicable to the Mortgage Loans including, without
limitation, any necessary notifications of insurers, assignments of policies
or interests therein, and establishments of coinsured, joint loss payee and
mortgagee rights in favor of the Purchaser. In connection with the placement
of any such insurance, no commission, fee, or other compensation has been or
will be received by the Seller or by any officer, director, or employee of the
Seller or any designee of the Seller or any corporation in which the Seller or
any officer, director, or employee had a financial interest at the time of
placement of such insurance;
(kk) No Violation of Environmental Laws. To the best of the
Seller's knowledge, the Mortgaged Property is free from any and all toxic or
hazardous substances and there exists no violation of any local, state or
federal environmental law, rule or regulation. To the best of the Seller's
knowledge, there is no pending action or proceeding directly involving the
Mortgaged Property in which compliance with any environmental law, rule or
regulation is an issue; there is no violation of any environmental law, rule
or regulation with respect to the Mortgage Property; and nothing further
remains to be done to satisfy in full all requirements of each such law, rule
or regulation constituting a prerequisite to use and enjoyment of said
property;
(ll) Servicemembers Civil Relief Act. The Mortgagor has not
notified the Seller, and the Seller has no knowledge, of any relief requested
or allowed to the Mortgagor under the Servicemembers Civil Relief Act or other
similar state statute;
(mm) Appraisal. The Mortgage File contains an appraisal of the
related Mortgaged Property signed prior to the origination of the Mortgage
Loan application by a Qualified Appraiser, duly appointed by the Seller, who
had no interest, direct or indirect in the Mortgaged Property or in any loan
made on the security thereof, and whose compensation is not affected by the
approval or disapproval of the Mortgage Loan, and the appraisal and appraiser
both satisfy the requirements of Xxxxxx Xxx or Xxxxxxx Mac and Title XI of
FIRREA and the regulations promulgated thereunder, all as in effect on the
date the Mortgage Loan was originated;
(nn) Disclosure Materials. The Mortgagor has executed a statement
to the effect that the Mortgagor has received all disclosure materials
required by, and the Seller has complied with, all applicable law with respect
to the making of the Mortgage Loans. The Seller shall maintain such statement
in the Mortgage File;
(oo) Construction or Rehabilitation of Mortgaged Property. No
Mortgage Loan was made in connection with the construction (other than a
"construct-to-perm" loan) or rehabilitation of a Mortgaged Property or
facilitating the trade-in or exchange of a Mortgaged Property;
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(pp) Escrow Analysis. If applicable, with respect to each Mortgage
Loan, the Seller has within the last twelve months (unless such Mortgage was
originated within such twelve month period) analyzed the required Escrow
Payments for each Mortgage and adjusted the amount of such payments so that,
assuming all required payments are timely made, any deficiency will be
eliminated on or before the first anniversary of such analysis, or any overage
will be refunded to the Mortgagor, in accordance with RESPA and any other
applicable law;
(qq) Credit Information. As to each consumer report (as defined in
the Fair Credit Reporting Act, Public Law 91-508) or other credit information
furnished by the Seller to the Purchaser, that Seller has full right and
authority and is not precluded by law or contract from furnishing such
information to the Purchaser and the Purchaser is not precluded by the terms
of the Mortgage Loan Documents from furnishing the same to any subsequent or
prospective purchaser of such Mortgage;
(rr) Leaseholds. If the Mortgage Loan is secured by a leasehold
estate, (1) the ground lease is assignable or transferable; (2) the ground
lease will not terminate earlier than five years after the maturity date of
the Mortgage Loan; (3) the ground lease does not provide for termination of
the lease in the event of lessee's default without the Mortgagee being
entitled to receive written notice of, and a reasonable opportunity to cure
the default; (4) the ground lease permits the mortgaging of the related
Mortgaged Property; (5) the ground lease protects the Mortgagee's interests in
the event of a property condemnation; (6) all ground lease rents, other
payments, or assessments that have become due have been paid; and (7) the use
of leasehold estates for residential properties is a widely accepted practice
in the jurisdiction in which the Mortgaged Property is located;
(ss) Prepayment Penalty. The Mortgage Loan is subject to a
prepayment penalty as provided in the related Mortgage Note except as set
forth on the related Mortgage Loan Schedule. With respect to each Mortgage
Loan that has a prepayment penalty feature, each such prepayment penalty is
enforceable and will be enforced by the Seller for the benefit of the
Purchaser, and each prepayment penalty is permitted pursuant to federal, state
and local law. Each such prepayment penalty is in an amount not more than the
maximum amount permitted under applicable law and no such prepayment penalty
may be imposed for a term in excess of five (5) years with respect to Mortgage
Loans originated prior to October, 1, 2002. With respect to Mortgage Loans
originated on or after October 1, 2002, the duration of the prepayment period
shall not exceed three (3) years from the date of the Mortgage Note unless the
Mortgage Loan was modified to reduce the prepayment period to no more than
three (3) years from the date of the note and the Mortgagor was notified in
writing of such reduction in prepayment period. With respect to any Mortgage
Loan that contains a provision permitting imposition of a premium upon a
prepayment prior to maturity: (i) prior to the loan's origination, the
Mortgagor agreed to such premium in exchange for a monetary benefit, including
but not limited to a rate or fee reduction, (ii) prior to the loan's
origination, the Mortgagor was offered the option of obtaining a mortgage loan
that did not require payment of such a premium, (iii) the prepayment premium
is disclosed to the Mortgagor in the loan documents pursuant to applicable
state, local and federal law, and (iv) notwithstanding any state, local or
federal law to the contrary, the Servicer shall not impose such prepayment
premium in any instance when the mortgage debt is accelerated as the result of
the Mortgagor's default in making the loan payments;
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(tt) Predatory Lending Regulations. No Mortgage Loan is a High
Cost Loan or Covered Loan, as applicable. No Mortgage Loan is covered by the
Home Ownership and Equity Protection Act of 1994 and no Mortgage Loan is in
violation of any comparable state or local law;
(uu) Single-premium credit life insurance policy. In connection
with the origination of any Mortgage Loan, no proceeds from any Mortgage Loan
were used to finance or acquire a single-premium credit life insurance policy.
No Mortgagor was required to purchase any single premium credit insurance
policy (e.g., life, disability, property, accident, unemployment or health
insurance product) or debt cancellation agreement as a condition of obtaining
the extension of credit. No Mortgagor obtained a prepaid single-premium credit
insurance policy (e.g., life, disability, property, accident, unemployment,
mortgage or health insurance) in connection with the origination of the
Mortgage Loan. No proceeds from any Mortgage Loan were used to purchase single
premium credit insurance policies as part of the origination of, or as a
condition to closing, such Mortgage Loan;
(vv) Qualified Mortgage. The Mortgage Loan is a qualified mortgage
under Section 860G(a)(3) of the Code;
(ww) Tax Service Contract. Each Mortgage Loan is covered by a paid
in full, life of loan, tax service contract issued by First American Real
Estate Tax Service, and such contract is transferable;
(xx) Origination. No predatory or deceptive lending practices,
including, without limitation, the extension of credit without regard to the
ability of the Mortgagor to repay and the extension of credit which has no
apparent benefit to the Mortgagor, were employed in the origination of the
Mortgage Loan;
(yy) Recordation. Each original Mortgage was recorded and all
subsequent assignments of the original Mortgage (other than the assignment to
the Purchaser) have been recorded in the appropriate jurisdictions wherein
such recordation is necessary to perfect the lien thereof as against creditors
of the Seller, or is in the process of being recorded;
(zz) Co-op Loans. With respect to a Mortgage Loan that is a Co-op
Loan, the stock that is pledged as security for the Mortgage Loan is held by a
person as a tenant-stockholder (as defined in Section 216 of the Code) in a
cooperative housing corporation (as defined in Section 216 of the Code);
(aaa) [Reserved];
(bbb) [Reserved];
(ccc) Georgia Fair Lending Act. There is no Mortgage Loan that was
originated (or modified) on or after October 1, 2002 and before March 6, 2003
which is secured by property located in the State of Georgia. There is no
Mortgage Loan that was originated on or after March 7, 2003 that is a "high
cost home loan" as defined under the Georgia Fair Lending Act;
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(ddd) No Arbitration. No Mortgagor with respect to any Mortgage
Loan originated on or after August 1, 2004 agreed to submit to arbitration to
resolve any dispute arising out of or relating in any way to the mortgage loan
transaction;
(eee) Flood Service Contract. Each Mortgage Loan is covered by a
paid in full, life of loan, flood service contract issued by First American
Real Estate Tax Service or Fidelity, and such contract is transferable;
(fff) Litigation. The Mortgage Loan is not subject to any
outstanding litigation for fraud, origination, predatory lending, servicing or
closing practices;
(ggg) Origination Practices. No Mortgagor was encouraged or
required to select a Mortgage Loan product offered by the Mortgage Loan's
originator which is a higher cost product designed for less creditworthy
borrowers, unless at the time of the Mortgage Loan's origination, such
Mortgagor did not qualify taking into account credit history and
debt-to-income ratios for a lower-cost credit product then offered by the
Mortgage Loan's originator or any affiliate of the Mortgage Loan's originator.
If, at the time of loan application, the Mortgagor may have qualified for a
lower-cost credit product then offered by any mortgage lending affiliate of
the Mortgage Loan's originator, the Mortgage Loan's originator referred the
Mortgagor's application to such affiliate for underwriting consideration;
(hhh) Underwriting Methodology. The methodology used in
underwriting the extension of credit for each Mortgage Loan employs, in part,
objective mathematical principles which relate the Mortgagor's income, assets
and liabilities to the proposed payment and such underwriting methodology does
not rely on the extent of the Mortgagor's equity in the collateral as the
principal determining factor in approving such credit extension. Such
underwriting methodology confirmed that at the time of origination
(application/approval) the Mortgagor had a reasonable ability to make timely
payments on the Mortgage Loan;
(iii) Points and Fees. All points and fees related to each
Mortgage Loan were disclosed in writing to the Mortgagor in accordance with
applicable state and federal law and regulation. Except in the case of a
Mortgage Loan in an original principal amount of less than $60,000 which would
have resulted in an unprofitable origination, no Mortgagor was charged "points
and fees" (whether or not financed) in an amount greater than 5% of the
principal amount of such Mortgage Loan, such 5% limitation is calculated in
accordance with Xxxxxx Mae's anti-predatory lending requirements as set forth
in the Xxxxxx Mae Selling Guide; and
(jjj) Fees Charges. All fees and charges (including finance
charges) and whether or not financed, assessed, collected or to be collected
in connection with the origination and servicing of each Mortgage Loan has
been disclosed in writing to the Mortgagor in accordance with applicable state
and federal law and regulation.
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Subsection 7.02 Seller and Servicer Representations.
(A) The Seller hereby represents and warrants to the Purchaser and
its successors and assigns that, as of the related Closing Date:
(a) Due Organization and Authority. The Seller is a New York
corporation, validly existing, and in good standing under the laws of its
jurisdiction of incorporation or formation and has all licenses necessary to
carry on its business as now being conducted, except where the failure to be
licensed or qualified would not have a material effect on the Seller or on any
Mortgage Loan, and is licensed, qualified and in good standing in the states
where the Mortgaged Property is located if the laws of such state require
licensing or qualification in order to conduct business of the type conducted
by the Seller. The Seller has corporate power and authority to execute and
deliver this Agreement and to perform its obligations hereunder; the
execution, delivery and performance of this Agreement (including all
instruments of transfer to be delivered pursuant to this Agreement) by the
Seller and the consummation of the transactions contemplated hereby have been
duly and validly authorized; this Agreement has been duly executed and
delivered and constitutes the valid, legal, binding and enforceable obligation
of the Seller, except as enforceability may be limited by (i) bankruptcy,
insolvency, liquidation, receivership, moratorium, reorganization or other
similar laws affecting the enforcement of the rights of creditors and (ii)
general principles of equity, whether enforcement is sought in a proceeding in
equity or at law. All requisite corporate action has been taken by the Seller
to make this Agreement valid and binding upon the Seller in accordance with
its terms;
(b) No Consent Required. No consent, approval, authorization or
order is required for the transactions contemplated by this Agreement from any
court, governmental agency or body, or federal or state regulatory authority
having jurisdiction over the Seller is required or, if required, such consent,
approval, authorization or order has been or will, prior to the related
Closing Date, be obtained;
(c) Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in the ordinary course of
business of the Seller, and the transfer, assignment and conveyance of the
Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are
not subject to the bulk transfer or any similar statutory provisions in effect
in any applicable jurisdiction;
(d) No Conflicts. Neither the execution and delivery of this
Agreement, the acquisition or origination of the Mortgage Loans by the Seller,
the sale of the Mortgage Loans to the Purchaser, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with
the terms and conditions of this Agreement, will conflict with or result in a
breach of any of the terms, conditions or provisions of (i) the Seller's
charter or by-laws or (ii) any legal restriction or any agreement or
instrument to which the Seller is now a party or by which it is bound, or
constitute a default or result in an acceleration under any of the foregoing,
except, in the case of clause (ii), any defaults or breaches that would not,
either in any one instance or in the aggregate, result in a material adverse
effect on the Seller, or result in the violation of any law, rule, regulation,
order, judgment or decree to which the Seller or its property is subject, or
result in the creation or imposition of any lien, charge or encumbrance that
would have a material adverse effect upon any of its properties pursuant to
the terms of any
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mortgage, contract, deed of trust or other instrument, or impair the ability
of the Purchaser to realize on the Mortgage Loans, impair the value of the
Mortgage Loans, or impair the ability of the Purchaser to realize the full
amount of any insurance benefits accruing pursuant to this Agreement;
(e) No Litigation Pending. There is no action, suit, proceeding or
investigation pending or, to the best knowledge of the Seller, threatened
against the Seller, before any court, administrative agency or other tribunal
asserting the invalidity of this Agreement, seeking to prevent the
consummation of any of the transactions contemplated by this Agreement or
which, either in any one instance or in the aggregate, would result in any
material adverse change in the business, operations, financial condition,
properties or assets of the Seller, or in any material impairment of the right
or ability of the Seller to carry on its business substantially as now
conducted, or which would draw into question the validity of this Agreement or
the Mortgage Loans or of any action taken or to be taken in connection with
the obligations of the Seller contemplated herein, or which would be likely to
impair materially the ability of the Seller to perform under the terms of this
Agreement;
(f) Ability to Perform; Solvency. The Seller does not believe, nor
does it have any reason or cause to believe, that it cannot perform each and
every covenant contained in this Agreement. The Seller is solvent and the sale
of the Mortgage Loans will not cause the Seller to become insolvent. The sale
of the Mortgage Loans is not undertaken with the intent to hinder, delay or
defraud any of Seller's creditors;
(g) Seller's Origination. The Seller's decision to originate any
mortgage loan or to deny any mortgage loan application is an independent
decision based upon the Underwriting Guidelines, and is in no way made as a
result of Purchaser's decision to purchase, or not to purchase, or the price
Purchaser may offer to pay for, any such mortgage loan, if originated;
(h) Anti-Money Laundering Laws. The Seller has complied with all
applicable anti-money laundering laws and regulations, including without
limitation the USA Patriot Act of 2001 (collectively, the "Anti-Money
Laundering Laws"); the Seller has established an anti-money laundering
compliance program as required by the Anti-Money Laundering Laws, has
conducted the requisite due diligence in connection with the origination of
each Mortgage Loan for purposes of the Anti-Money Laundering Laws, including
with respect to the legitimacy of the applicable Mortgagor and the origin of
the assets used by the said Mortgagor to purchase the property in question,
and maintains, and will maintain, sufficient information to identify the
applicable Mortgagor for purposes of the Anti-Money Laundering Laws
(i) Financial Statements; Other Information. The Seller has
delivered to the Purchaser financial statements as to its last three complete
fiscal years and any later quarter ended more than 60 days prior to the
execution of this Agreement. All such financial statements fairly present the
pertinent results of operations and changes in financial position for each of
such periods and the financial position at the end of each such period of the
Seller and its subsidiaries and have been prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved, except as set forth in the notes thereto. In addition, the
Seller has delivered information as to its loan gain and loss experience in
respect of
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foreclosures and its loan delinquency experience for the immediately preceding
three year period, in each case with respect to mortgage loans owned by it and
such mortgage loans serviced for others during such period, and all such
information so delivered shall be true and correct in all material respects.
There has been no change in the business, operations, financial condition,
properties or assets of the Seller since the date of the Seller's financial
Statements that would have a material adverse effect on its ability to perform
its obligations under this Agreement;
(j) Ability to Service. Seller has the facilities, procedures, and
experienced personnel necessary for the sound servicing of mortgage loans of
the same type as the Mortgage Loans. The Seller is duly qualified, licensed,
registered and otherwise authorized under all applicable federal, state and
local laws, and regulations, if applicable, meets the minimum capital
requirements set forth by HUD, the OTS, the OCC or the FDIC, if applicable,
and is in good standing to enforce, originate, sell mortgage loans to, and
service mortgage loans in the jurisdiction wherein the Mortgaged Properties
are located;
(k) [Reserved];
(l) Selection Process. The Mortgage Loans were selected from among
the outstanding one- to four-family mortgage loans in the Seller's portfolio
at the related Closing Date as to which the representations and warranties set
forth in Subsection 7.01 could be made and such selection was not made in a
manner so as to affect adversely the interests of the Purchaser;
(m) Delivery to the Custodian. The Mortgage Note, the Mortgage,
the Assignment of Mortgage and any other documents required to be delivered
with respect to each Mortgage Loan pursuant to the Custodial Agreement, shall
be delivered to the Custodian all in compliance with the specific requirements
of the Custodial Agreement. With respect to each Mortgage Loan, the Servicer
will be in possession of a complete Mortgage File in compliance with Exhibit 2
hereto, except for such documents as will be delivered to the Custodian;
(n) Mortgage Loan Characteristics. The characteristics of the
related Mortgage Loan Package are as set forth on the description of the pool
characteristics for the applicable Mortgage Loan Package delivered pursuant to
Section 9 on the related Closing Date in the form attached as Exhibit B to
each related Assignment and Conveyance Agreement;
(o) No Untrue Information. Neither this Agreement nor any
information, statement, tape, diskette, report, form, or other document
furnished or to be furnished pursuant to this Agreement or any Reconstitution
Agreement or in connection with the transactions contemplated hereby
(including any Securitization Transaction or Whole Loan Transfer) contains or
will contain any untrue statement of fact or omits or will omit to state a
fact necessary to make the statements contained herein or therein not
misleading;
(p) No Brokers. The Seller has not dealt with any broker,
investment banker, agent or other person that may be entitled to any
commission or compensation in connection with the sale of the Mortgage Loans;
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(q) Sale Treatment. The Seller expects to be advised by its
independent certified public accountants that under generally accepted
accounting principles the transfer of the Mortgage Loans will be treated as a
sale on the books and records of the Seller and the Seller has determined that
the disposition of the Mortgage Loans pursuant to this Agreement will be
afforded sale treatment for tax and accounting purposes; and
(r) Reasonable Purchase Price. The consideration received by the
Seller upon the sale of the Mortgage Loans under this Agreement constitutes
fair consideration and reasonably equivalent value for the Mortgage Loans.
(B) The Servicer hereby warrants and represents to the Purchaser
and its successor and assigns as of the Closing Date:
(a) Due Organization and Authority. The Servicer is a corporation
duly organized, validly existing and in good standing under the laws of
Maryland and has all licenses necessary to carry on its business as now being
conducted and is licensed, qualified and in good standing in each state where
a Mortgaged Property is located if the laws of such state require licensing or
qualification in order to conduct business of the type conducted by the
Servicer, and in any event the Servicer is in compliance with the laws of any
such state to the extent necessary to ensure the enforceability of the related
Mortgage Loan in accordance with the terms of this Agreement; the Servicer has
the full power and authority to execute and deliver this Agreement and to
perform in accordance herewith; the execution, delivery and performance of
this Agreement (including all instruments or transfer to be delivered pursuant
to this Agreement) by the Servicer and the consummation of the transactions
contemplated hereby have been duly and validly authorized; this Agreement
evidences the valid, binding and enforceable obligation of the Servicer; and
all requisite action has been taken by the Servicer to make this Agreement
valid and binding upon the Servicer in accordance with its terms;
(b) Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in the ordinary course of
business of the Servicer;
(c) No Conflicts. Neither the execution and delivery of this
Agreement, nor the fulfillment of or compliance with the terms and conditions
of this Agreement, will conflict with or result in a breach of any of the
terms, conditions or provisions of the Servicer's certificate of formation or
limited liability company agreement or any legal restriction or any agreement
or instrument to which the Servicer is now a party or by which it is bound, or
constitute a default or result in an acceleration under any of the foregoing,
or result in the violation of any law, rule, regulation, order, judgment or
decree to which the Servicer or its property is subject, or impair the ability
of the Purchaser to realize on the Mortgage Loans, or impair the value of the
Mortgage Loans;
(d) Ability to Service. The Servicer is a seller/servicer of
residential mortgage loans, with the facilities, procedures, and experienced
personnel necessary for the sound servicing of mortgage loans of the same type
as the Mortgage Loans;
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(e) Ability to Perform. The Servicer does not believe, nor does it
have any reason or cause to believe, that it cannot perform each and every
covenant contained in this Agreement;
(f) No Litigation Pending. There is no action, suit, proceeding or
investigation pending or, to the best of the Servicer's knowledge, threatened
against the Servicer which, either in any one instance or in the aggregate,
may result in any material adverse change in the business, operations,
financial condition, properties or assets of the Servicer, or in any material
impairment of the right or ability of the Servicer to carry on its business
substantially as now conducted, or in any material liability on the part of
the Servicer, or which would draw into question the validity of this Agreement
or the Mortgage Loans or of any action taken or to be taken in connection with
the obligations of the Servicer contemplated herein, or which would be likely
to impair materially the ability of the Servicer to perform under the terms of
this Agreement;
(g) No Consent Required. No consent, approval, authorization or
order of any court or governmental agency or body is required for the
execution, delivery and performance by the Servicer of or compliance by the
Servicer with this Agreement or the servicing of the Mortgage Loans as
evidenced by the consummation of the transactions contemplated by this
Agreement, or if required, such approval has been obtained prior to the
related Closing Date;
(h) No Untrue Information. Neither this Agreement nor any
statement, report or other document furnished or to be furnished pursuant to
this Agreement or in connection with the transactions contemplated hereby
contains any untrue statement of fact or omits to state a fact necessary to
make the statements contained therein not misleading;
(i) Prior Servicing. Prior to the date hereof, each Mortgage Loan
has been serviced in all material respects in strict compliance with Accepted
Servicing Practices and the Servicer has reported the Mortgagor credit files
to each of the three credit repositories on a monthly basis in a timely
manner; and
(j) Reasonable Servicing Fee. The Servicer acknowledges and agrees
that the Servicing Fee represents reasonable compensation for performing such
services and that the entire Servicing Fee shall be treated by the Servicer,
for accounting and tax purposes, as compensation for the servicing and
administration of the Mortgage Loans pursuant to this Agreement.
Subsection 7.03 Remedies for Breach of Representations and
Warranties. It is understood and agreed that the representations and
warranties set forth in Subsections 7.01 and 7.02 shall survive the sale of
the Mortgage Loans to the Purchaser and shall inure to the benefit of the
Purchaser and its successors and assigns, notwithstanding any restrictive or
qualified endorsement on any Mortgage Note or Assignment of Mortgage or the
examination or failure to examine any Mortgage File. Upon discovery by either
the Seller, the Servicer or the Purchaser of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the other relevant parties.
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Within sixty (60) days after the earlier of either discovery by or
notice to the Seller of any breach of a representation or warranty, which
materially and adversely affects the value of the Mortgage Loans or the
interest of the Purchaser therein (or which materially and adversely affects
the value of the applicable Mortgage Loan or the interest of the Purchaser
therein in the case of a representation and warranty relating to a particular
Mortgage Loan) (a "Breach"), the Seller shall use its best efforts promptly to
cure such Breach in all material respects and, if such Breach cannot be cured
within 60 days of the earlier of either discovery by or notice to the Seller
of such Breach, the Seller shall, at the Purchaser's option, repurchase such
affected Mortgage Loan or Mortgage Loans at the Repurchase Price.
Notwithstanding the above sentence, within sixty (60) days after the earlier
of either discovery by, or notice to, the Seller of any breach of the
representations or warranties set forth in clause (qq), (ss), (tt), (uu),
(vv), (ccc) or (ddd) of Subsection 7.01, the Seller shall repurchase such
Mortgage Loan at the Repurchase Price. In the event that a Breach shall
involve any representation or warranty set forth in Subsection 7.02, and such
Breach cannot be cured within 60 days of the earlier of either discovery by or
notice to the Seller of such Breach, all of the Mortgage Loans affected by
such Breach shall, at the Purchaser's option, be repurchased by the Seller at
the Repurchase Price. However, if the Breach, shall involve a representation
or warranty set forth in Subsection 7.01 (except as provided in the second
sentence of this paragraph with respect to certain breaches for which no
substitution is permitted) and the Seller discovers or receives notice of any
such Breach within 120 days of the related Closing Date, the Seller shall, at
the Purchaser's option and provided that the Seller has a Qualified Substitute
Mortgage Loan, rather than repurchase the Mortgage Loan as provided above,
remove such Mortgage Loan and substitute in its place a Qualified Substitute
Mortgage Loan or Qualified Substitute Mortgage Loans; provided, however, that
any such substitution shall be effected within such one hundred twenty (120)
days after the related Closing Date. If the Seller has no Qualified Substitute
Mortgage Loan, it shall repurchase the deficient Mortgage Loan at the
Repurchase Price. Any repurchase of a Mortgage Loan pursuant to the foregoing
provisions of this Subsection 7.03 shall occur on a date designated by the
Purchaser, and acceptable to the Seller, and shall be accomplished by the
Seller remitting to the Servicer for deposit the amount of the Repurchase
Price in the Custodial Account for distribution to the Purchaser on the next
scheduled Remittance Date.
At the time of repurchase of any deficient Mortgage Loan (or
removal of any Deleted Mortgage Loan), the Purchaser and the Seller shall
arrange for the assignment of the repurchased Mortgage Loan (or Deleted
Mortgage Loan) to the Seller or its designee and the delivery to the Seller of
any documents held by the Purchaser relating to the repurchased Mortgage Loan
in the manner required by this Agreement with respect to the purchase and sale
of such Mortgage Loan on the related Closing Date. In the event the Repurchase
Price is deposited in the Custodial Account, the Seller shall, simultaneously
with its remittance to the Servicer of such Repurchase Price for deposit, give
written notice to the Purchaser that such deposit has taken place. Upon such
repurchase, the Seller shall amend the related Mortgage Loan Schedule to
reflect the withdrawal of the repurchased Mortgage Loan from this Agreement.
As to any Deleted Mortgage Loan for which the Seller substitutes
one or more Qualified Substitute Mortgage Loans, the Seller shall be deemed to
have made the representations and warranties set forth in this Agreement
except that all such representations and warranties set forth in this
Agreement shall be deemed made as of the date of such substitution. No
substitution will be made in any calendar month after the Determination Date
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for such month. The Seller shall effect such substitution by delivering to the
Purchaser for each Qualified Substitute Mortgage Loan the Mortgage Note, the
Mortgage, the Assignment of Mortgage and such other documents and agreements
as are required by Subsection 6.03. The Seller shall remit to the Servicer for
deposit in the Custodial Account the Monthly Payment less the Servicing Fee
due on each Qualified Substitute Mortgage Loan in the month following the date
of such substitution. Monthly Payments due with respect to Qualified
Substitute Mortgage Loans in the month of substitution shall be retained by
the Seller. For the month of substitution, distributions to the Purchaser
shall include the Monthly Payment due on any Deleted Mortgage Loan in the
month of substitution, and the Seller shall thereafter be entitled to retain
all amounts subsequently received by the Seller in respect of such Deleted
Mortgage Loan. The Seller shall give written notice to the Purchaser that such
substitution has taken place and shall amend the related Mortgage Loan
Schedule to reflect the removal of such Deleted Mortgage Loan from the terms
of this Agreement and the substitution of the Qualified Substitute Mortgage
Loan. Upon such substitution, each Qualified Substitute Mortgage Loan shall be
subject to the terms of this Agreement in all respects, and the Seller shall
be deemed to have made with respect to such Qualified Substitute Mortgage
Loan, as of the date of substitution, the covenants, representations and
warranties set forth in Subsections 7.01 and 7.02.
For any month in which the Seller substitutes one or more
Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans,
the Seller shall determine the amount (if any) by which the aggregate
principal balance of all such Qualified 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 scheduled principal
payments due in the month of substitution). The amount of such shortfall shall
be remitted to the Servicer by the Seller for distribution by the Servicer in
the month of substitution pursuant to Subsection 11.04. Accordingly, on the
date of such substitution, the Seller will remit to the Servicer from its own
funds for deposit into the Custodial Account an amount equal to the amount of
such shortfall plus one month's interest thereon at the Mortgage Loan
Remittance Rate.
In addition to such repurchase or substitution obligation, the
Seller shall indemnify the Purchaser and its successors and assigns and its
present and former directors, officers, employees and agents and any Successor
Servicer and its present and former directors, officers, employees and agents
and hold such parties harmless against any losses, damages, penalties, fines,
forfeitures, legal fees and expenses and related costs, judgments, and other
costs and expenses resulting from any claim, demand, defense or assertion
based on or grounded upon, or resulting from, a breach of the Seller
representations and warranties contained in this Agreement or any
Reconstitution Agreement. For purposes of this paragraph, "Purchaser" shall
mean the Person then acting as the Purchaser under this Agreement and any and
all Persons who previously were "Purchasers" under this Agreement and
"Successor Servicer" shall mean any Person designated as the Successor
Servicer pursuant to this Agreement and any and all Persons who previously
were "Successor Servicers" pursuant to this Agreement. It is understood and
agreed that the obligations of the Seller set forth in this Subsection 7.03 to
cure, repurchase or substitute for a defective Mortgage Loan, and to indemnify
the Purchaser and Successor Servicer under Subsection 12.01 constitute the
sole remedies of the Purchaser and Successor Servicer respecting a breach of
the representations and warranties set forth in Subsections 7.01 and 7.02.
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Any cause of action against the Seller relating to or arising out
of the breach of any representations and warranties made in Subsections 7.01
and 7.02 shall accrue as to any Mortgage Loan upon (i) discovery of such
breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii)
failure by the Seller to cure such breach, substitute a Qualified Substitute
Mortgage Loan, or repurchase such Mortgage Loan as specified above and (iii)
demand upon the Seller by the Purchaser for compliance with this Agreement.
Section 8.Closing. The closing for the purchase and sale of each
Mortgage Loan Package shall take place on the related Closing Date. At the
Purchaser's option, each closing shall be either: by telephone, confirmed by
letter or wire as the parties shall agree, or conducted in person, at such
place as the parties shall agree. Each closing shall be subject to each of the
following conditions:
(a) at least two Business Days prior to the related Closing
Date, the Seller shall deliver to the Purchaser a magnetic diskette, or
transmit by modem, a listing on a loan-level basis of the necessary
information to compute the Purchase Price of the Mortgage Loans delivered on
such Closing Date (including accrued interest), and prepare a Mortgage Loan
Schedule;
(b) all of the representations and warranties of the Seller
in this Agreement shall be true and correct as of the related Closing Date and
no event shall have occurred which, with notice or the passage of time, would
constitute an Event of Default under this Agreement;
(c) the Purchaser's attorneys shall have received in escrow,
all Closing Documents as specified in Section 9, in such forms as are agreed
upon and acceptable to the Purchaser, duly executed by all signatories as
required pursuant to the terms hereof; and
(d) all other terms and conditions of this Agreement shall
have been complied with.
Section 9.Closing Documents. On the related Closing Date, the
Seller shall deliver to the Purchaser's attorneys in escrow fully executed
originals of:
(a) this Agreement (to be executed and delivered only for the
initial Closing Date);
(b) the related Purchase Price and Terms Agreement, executed in
four (4) counterparts;
(c) with respect to the initial Closing Date, the Custodial
Agreement, dated as of the initial Cut-off Date;
(d) with respect to the initial Closing Date, a Custodial Account
Certification in the form attached as Exhibit 4 hereto or a Custodial Account
Letter Agreement in the form attached as Exhibit 5 hereto;
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(e) with respect to the initial Closing Date, an Escrow Account
Certification in the form attached as Exhibit 6 hereto or an Escrow Account
Letter Agreement in the form attached as Exhibit 7 hereto;
(f) the related Mortgage Loan Schedule, segregated by Mortgage
Loan Package, one copy to be attached hereto, one copy to be attached to the
Custodian's counterpart of the Custodial Agreement, and one copy to be
attached to the related Assignment and Conveyance as the Mortgage Loan
Schedule thereto;
(g) with respect to the initial Closing Date, an Officer's
Certificate, in the form of Exhibit 10 hereto with respect to the Seller,
including all attachments thereto and with respect to subsequent Closing
Dates, an Officer's Certificate upon request of the Purchaser; and
(h) with respect to the initial Closing Date, an Opinion of
Counsel of the Seller (who may be an employee of the Seller), in the form of
Exhibit 11 hereto and with respect to subsequent Closing Dates, an Opinion of
Counsel of the Seller upon request of the Purchaser;
(i) with respect to the initial Closing Date, an Opinion of
Counsel of the Custodian (who may be an employee of the Custodian), in the
form of an exhibit to the Custodial Agreement, if required;
(j) a Security Release Certification, in the form of Exhibit 12 or
Exhibit 13, as applicable, hereto executed by any person, as requested by the
Purchaser, if any of the Mortgage Loans have at any time been subject to any
security interest, pledge or hypothecation for the benefit of such person;
(k) a certificate or other evidence of merger or change of name,
signed or stamped by the applicable regulatory authority, if any of the
Mortgage Loans were acquired by the Seller by merger or acquired or originated
by the Seller while conducting business under a name other than its present
name, if applicable;
(l) with respect to the initial Closing Date, the Underwriting
Guidelines to be attached hereto as Exhibit 8 and with respect to each
subsequent Closing Date, the Underwriting Guidelines to be attached to the
related Assignment and Conveyance;
(m) Assignment and Conveyance Agreement in the form of Exhibit 14
hereto, including all exhibits thereto;
(n) a Custodian's Certification or similar document, as required
under the Custodial Agreement; and
(o) a MERS Report reflecting the Purchaser as Investor, the
Custodian as custodian and no Person as Interim Funder for each MERS
Designated Mortgage Loan.
The Seller shall bear the risk of loss of the closing documents
until such time as they are received by the Purchaser or its attorneys.
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Section 10. Costs. The Purchaser shall pay any commissions due its
salesmen and the legal fees and expenses of its attorneys and custodial fees.
All other costs and expenses incurred in connection with the transfer and
delivery of the Mortgage including recording fees, fees for title policy
endorsements and continuations, fees for recording Assignments of Mortgage,
and the Seller's attorney's fees, shall be paid by the Seller.
Section 11. Administration and Servicing of the Mortgage Loans.
Subsection 11.01 Servicer to Act as Servicer. The Servicer shall service
and administer the Mortgage Loans in accordance with this Agreement and
Accepted Servicing Procedures and the terms of the Mortgage Notes and
Mortgages, and shall have full power and authority, acting alone or through
sub-servicers or agents, to do or cause to be done any and all things in
connection with such servicing and administration which the Servicer may deem
necessary or desirable and consistent with the terms of this Agreement. The
Servicer may perform its servicing responsibilities through agents or
independent contractors, but shall not thereby be released from any of its
responsibilities hereunder.
Consistent with the terms of this Agreement, the Servicer may waive,
modify or vary any term of any Mortgage Loan or consent to the postponement of
strict compliance with any such term or in any manner grant indulgence to any
Mortgagor; provided, however, that (unless the Mortgagor is in default with
respect to the Mortgage Loan, or such default is, in the judgment of the
Servicer, imminent, and the Servicer has the consent of the Purchaser) the
Servicer shall not permit any modification with respect to any Mortgage Loan
which materially and adversely affects the Mortgage Loan, including without
limitation, any modification that would defer or forgive the payment of any
principal or interest, change the outstanding principal amount (except for
actual payments of principal), make any future advances, extend the final
maturity date or change the Mortgage Interest Rate, as the case may be, with
respect to such Mortgage Loan. Notwithstanding the foregoing, the Servicer
shall not waive any Prepayment Penalty or portion thereof unless (i) the
enforceability thereof shall have been limited by bankruptcy, insolvency,
moratorium, receivership or other similar laws relating to creditors' rights
generally or is otherwise prohibited by law, or (ii) the enforceability
thereof shall have been permanently limited due to acceleration in connection
with a foreclosure or other involuntary payment or (iii) in the Servicer's
reasonable judgment, (x) such waiver relates to a default or a reasonably
foreseeable default, (y) such waiver would maximize recovery of total proceeds
taking into account the value of such Prepayment Penalty and related Mortgage
Loan and (z) doing so is standard and customary in servicing Mortgage Loans
(including any waiver of a Prepayment Penalty in connection with a refinancing
of a Mortgage Loan that is related to a default or reasonably foreseeable
default). Except as provided in the preceding sentence, in no event will the
Servicer waive a Prepayment Penalty in connection with a refinancing of a
Mortgage Loan that is not related to a default or a reasonably foreseeable
default. If the Servicer waives or does not collect all or a portion of a
Prepayment Penalty relating to a Principal Prepayment in full or in part due
to any action or omission of the Servicer, other than as permitted above, the
Servicer shall deposit from its own funds without any right of reimbursement
therefor the amount of such Prepayment Penalty (or such portion thereof as had
been waived for deposit) into the Custodial Account for distribution in
accordance with the terms of this Agreement. In connection with any waiver of
a Prepayment Penalty by the Servicer, the
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Servicer shall account for such waiver in its monthly reports as agreed upon
by the Servicer and the Purchaser. Without limiting the generality of the
foregoing, the Servicer in its own name or acting through sub-servicers or
agents is hereby authorized and empowered by the Purchaser when the Servicer
believes it appropriate and reasonable in its best judgment, to execute and
deliver, on behalf of itself and the Purchaser, all instruments of
satisfaction or cancellation, or of partial or full release, discharge and all
other comparable instruments, with respect to the Mortgage Loans and 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
Purchaser pursuant to the provisions of Subsection 11.12. The Servicer shall
make all required Servicing Advances and 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.
The Purchaser shall furnish to the Servicer any powers of attorney and other
documents reasonably necessary or appropriate to enable the Servicer to carry
out its servicing and administrative duties under this Agreement.
Notwithstanding anything to the contrary in this Agreement, the
Purchaser may at any time and from time to time, in its sole discretion, upon
written notice to the Seller, with respect to (1) any REO Property or (2) all
Mortgage Loans that are 90 or more days delinquent as of the date of such
notice and any Mortgage Loans that subsequently become 90 or more days
delinquent following the date of such notice (for the purposes of this
paragraph such Mortgage Loans, "Delinquent Mortgage Loans"), either (i)
terminate the Seller's servicing obligations hereunder with respect to such
REO Properties and Delinquent Mortgage Loans, upon reimbursement of any
unremibursed advances owed to the Servicer and payment of the termination fee
referred to in Subsection 14.02, or (ii) assume the absolute right to direct
the Seller to take such actions with respect to such REO Property and
Delinquent Mortgage Loans as the Seller would otherwise be able to undertake
pursuant to Subsection 11.12. Upon the effectiveness of any such termination
of the Seller's servicing obligations with respect to any such REO Property or
Delinquent Mortgage Loan, the Seller shall deliver all agreements, documents,
and instruments related thereto to the Purchaser, in accordance with Accepted
Servicing Procedures and applicable law and shall transfer servicing to the
Purchaser's designee in accordance with Acceptable Servicing Procedures.
Subsection 11.02 Liquidation of Mortgage Loans. If any payment due
under any Mortgage Loan is not paid when the same becomes due and payable, or
in the event the Mortgagor fails to perform any other covenant or obligation
under the Mortgage Loan and such failure continues beyond any applicable grace
period, the Servicer shall take such action as it shall deem to be in the best
interest of the Purchaser. If any payment due under any Mortgage Loan remains
delinquent for a period of one hundred twenty (120) days or more, the Servicer
shall commence foreclosure proceedings in accordance with the guidelines set
forth by Xxxxxx Xxx or Xxxxxxx Mac. In such event, the Servicer shall from its
own funds make all necessary and proper Servicing Advances.
Subsection 11.03 Collection of Mortgage Loan Payments.
Continuously from the date hereof until the principal and interest on all
Mortgage Loans are paid in full, the Servicer will proceed diligently, in
accordance with this Agreement, to collect all payments due under each of the
Mortgage Loans when the same shall become due and payable. Further, the
Servicer
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will in accordance with Accepted Servicing Procedures ascertain and estimate
taxes, assessments, fire and hazard insurance premiums, and all other charges
that, as provided in any Mortgage, will become due and payable to the end that
the installments payable by the Mortgagors will be sufficient to pay such
charges as and when they become due and payable.
Subsection 11.04 Establishment of Custodial Account; Deposits in
Custodial Account. The Servicer shall segregate and hold all funds collected
and received pursuant to each Mortgage Loan separate and apart from any of its
own funds and general assets and shall establish and maintain one or more
Custodial Accounts (collectively, the "Custodial Account"), titled "American
Home Mortgage Servicing, Inc. as Servicer, in trust for Xxxxxxx Sachs Mortgage
Company as Purchaser of Mortgage Loans and various Mortgagors." Such Custodial
Account shall be established with a commercial bank, a savings bank or a
savings and loan association (which may be a depository affiliate of the
Servicer) which meets the guidelines set forth by Xxxxxx Xxx or Xxxxxxx Mac as
an eligible depository institution for custodial accounts. In any case, the
Custodial Account shall be insured by the FDIC in a manner which shall provide
maximum available insurance thereunder and which may be drawn on by the
Servicer. The creation of any Custodial Account shall be evidenced by (i) a
certification in the form of Exhibit 4 hereto, in the case of an account
established with a depository affiliate of the Servicer, or (ii) a letter
agreement in the form of Exhibit 5 hereto, in the case of an account held by a
depository other than an affiliate of the Servicer. In either case, a copy of
such certification or letter agreement shall be furnished to the Purchaser
upon request.
The Servicer shall deposit in the Custodial Account within
forty-eight (48) hours following receipt thereof, and retain therein the
following payments and collections received or made by it subsequent to the
related Cut-off Date (other than in respect of principal and interest on the
Mortgage Loans due on or before the related Cut-off Date):
(a) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(b) all payments on account of interest on the Mortgage Loans
adjusted to the Mortgage Loan Remittance Rate;
(c) all Liquidation Proceeds;
(d) all proceeds received by the Servicer under any title
insurance policy, hazard insurance policy, or other insurance policy other
than proceeds to be held in the Escrow Account and applied to the restoration
or repair of the Mortgaged Property or released to the Mortgagor in accordance
with Accepted Servicing Procedures;
(e) all awards or settlements in respect of condemnation
proceedings or eminent domain affecting any Mortgaged Property which are not
released to the Mortgagor in accordance with Accepted Servicing Procedures;
(f) any amount required to be deposited in the Custodial Account
pursuant to Subsections 11.14, 11.16 and 11.18;
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(g) any amount required to be deposited by the Servicer in
connection with any REO Property pursuant to Subsection 11.12;
(h) any amounts payable in connection with the repurchase of any
Mortgage Loan pursuant to Subsection 7.03, and all amounts required to be
deposited by the Servicer in connection with shortfalls in principal amount of
Qualified Substitute Mortgage Loans pursuant to Subsection 7.03; and
(i) with respect to each Principal Prepayment, an amount (to be
paid by the Servicer out of its own funds) which, when added to all amounts
allocable to interest received in connection with the Principal Prepayment,
equals one month's interest on the amount of principal so prepaid for the
month of prepayment at the applicable Mortgage Loan Remittance Rate; provided,
however, that the Servicer's aggregate obligations under this paragraph for
any month shall be limited to the total amount of Servicing Fees actually
received with respect to the Mortgage Loans by the Servicer during such month.
The foregoing requirements for deposit in the Custodial Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of late payment charges,
assumption fees and other ancillary fees need not be deposited by the Servicer
in the Custodial Account.
The Servicer may invest the funds in the Custodial Account in
Eligible Investments designated in the name of the Servicer for the benefit of
the Purchaser, which shall mature not later than the Business Day next
preceding the Remittance Date next following the date of such investment
(except that (A) any investment in the institution with which the Custodial
Account is maintained may mature on such Remittance Date and (B) any other
investment may mature on such Remittance Date if the Servicer shall advance
funds on such Remittance Date, pending receipt thereof to the extent necessary
to make distributions to the Owner) and shall not be sold or disposed of prior
to maturity. Notwithstanding anything to the contrary herein and above, all
income and gain realized from any such investment shall be for the benefit of
the Servicer and shall be subject to withdrawal by the Servicer. The amount of
any losses incurred in respect of any such investments shall be deposited in
the Custodial Account by the Servicer out of its own funds immediately as
realized.
Subsection 11.05 Withdrawals From the Custodial Account. The
Servicer shall, from time to time, withdraw funds from the Custodial Account
for the following purposes:
(a) to make payments to the Purchaser in the amounts and in the
manner provided for in Subsection 11.14;
(b) to reimburse itself for P&I Advances, the Servicer's right to
reimburse itself pursuant to this subclause (b) with respect to any Mortgage
Loan being limited to related Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds, REO Disposition Proceeds and such other amounts as may be
collected by the Servicer from the Mortgagor or otherwise relating to the
Mortgage Loan, it being understood that, in the case of any such
reimbursement, the Servicer's right thereto shall be prior to the rights of
the Purchaser, except that, where the Seller is required to repurchase a
Mortgage Loan, pursuant to Subsection 7.03, the Servicer's
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right to such reimbursement shall be subsequent to the payment to the
Purchaser of the Repurchase Price pursuant to Subsection 7.03, and all other
amounts required to be paid to the Purchaser with respect to such Mortgage
Loan;
(c) to reimburse itself for any unpaid Servicing Fees and for
unreimbursed Servicing Advances, the Servicer's right to reimburse itself
pursuant to this subclause (c) with respect to any Mortgage Loan being limited
to related Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds,
REO Disposition Proceeds and such other amounts as may be collected by the
Servicer from the Mortgagor or otherwise relating to the Mortgage Loan, it
being understood that, in the case of any such reimbursement, the Servicer's
right thereto shall be prior to the rights of the Purchaser unless the Seller
is required to repurchase a Mortgage Loan pursuant to Subsection 7.03, in
which case the Servicer's right to such reimbursement shall be subsequent to
the payment to the Purchaser of the Repurchase Price pursuant to Subsection
7.03 and all other amounts required to be paid to the Purchaser with respect
to such Mortgage Loan;
(d) to reimburse itself for unreimbursed Servicing Advances and
for xxxxxxxxxxxx X&X Advances, in accordance with Subsection 11.16, to the
extent that such amounts are nonrecoverable by the Servicer pursuant to
subclause (b) or (c) above, provided that the Mortgage Loan for which such
advances were made is not required to be repurchased by the Seller pursuant to
Subsection 7.03;
(e) to reimburse itself for expenses incurred by and reimbursable
to it pursuant to Subsection 12.01;
(f) to withdraw amounts to make P&I Advances in accordance with
Subsection 11.16;
(g) to pay to itself any interest earned or any investment
earnings on funds deposited in the Custodial Account;
(h) to withdraw any amounts inadvertently deposited in the
Custodial Account; and
(i) to clear and terminate the Custodial Account upon the
termination of this Agreement.
Subsection 11.06 Establishment of Escrow Account; Deposits in
Escrow Account. The Servicer shall segregate and hold all funds collected and
received pursuant to each Mortgage Loan which constitute Escrow Payments
separate and apart from any of its own funds and general assets and shall
establish and maintain one or more Escrow Accounts (collectively, the "Escrow
Account"), titled "American Home Mortgage Servicing, Inc. as Servicer, in
trust for Xxxxxxx Sachs Mortgage Company as Purchaser of Mortgage Loans and
various Mortgagors." The Escrow Account shall be established with a commercial
bank, a savings bank or a savings and loan association (which may be a
depository affiliate of Servicer), which meets the guidelines set forth by
Xxxxxx Xxx or Xxxxxxx Mac as an eligible institution for escrow accounts. In
any case, the Escrow Account shall be insured by the FDIC in a manner which
shall provide maximum available insurance thereunder and which may be drawn on
by the Servicer. The creation of any Escrow Account shall be evidenced by a
certification in the form of Exhibit 6
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hereto, in the case of an account established with a depository affiliate of
the Servicer, or by a letter agreement in the form of Exhibit 7 hereto, in the
case of an account held by a depository. In either case, a copy of such
certification or letter agreement shall be furnished to the Purchaser upon
request.
The Servicer shall deposit in the Escrow Account on a daily basis,
and retain therein: (a) all Escrow Payments collected on account of the
Mortgage Loans, for the purpose of effecting timely payment of any such items
as required under the terms of this Agreement, and (b) all amounts
representing proceeds of any hazard insurance policy which are to be applied
to the restoration or repair of any Mortgaged Property. The Servicer shall
make withdrawals therefrom only in accordance with Subsection 11.07. As part
of its servicing duties, the Servicer shall pay to the Mortgagors interest on
funds in the Escrow Account, to the extent required by law.
Subsection 11.07 Withdrawals From Escrow Account. Withdrawals from
the Escrow Account shall be made by the Servicer only (a) to effect timely
payments of ground rents, taxes, assessments, fire and hazard insurance
premiums or other items constituting Escrow Payments for the related Mortgage,
(b) to reimburse the Servicer for any Servicing Advance made by Servicer
pursuant to Subsection 11.08 with respect to a related Mortgage Loan, (c) to
refund to any Mortgagor any funds found to be in excess of the amounts
required under the terms of the related Mortgage Loan, (d) for transfer to the
Custodial Account upon default of a Mortgagor or in accordance with the terms
of the related Mortgage Loan and if permitted by applicable law, (e) for
application to restore or repair of the Mortgaged Property, (f) to pay to the
Mortgagor, to the extent required by law, any interest paid on the funds
deposited in the Escrow Account, (g) to pay to itself any interest earned on
funds deposited in the Escrow Account (and not required to be paid to the
Mortgagor), (h) to the extent permitted under the terms of the related
Mortgage Note and applicable law, to pay late fees with respect to any Monthly
Payment which is received after the applicable grace period, (i) to withdraw
suspense payments that are deposited into the Escrow Account, (j) to withdraw
any amounts inadvertently deposited in the Escrow Account or (k) to clear and
terminate the Escrow Account upon the termination of this Agreement.
Subsection 11.08 Payment of Taxes, Insurance and Other Charges;
Collections Thereunder. With respect to each Mortgage Loan, the Servicer shall
maintain accurate records reflecting the status of ground rents, taxes,
assessments and other charges which are or may become a lien upon the
Mortgaged Property and the status of fire and hazard insurance coverage and
shall obtain, from time to time, all bills for the payment of such charges
(including renewal premiums) and shall effect payment thereof prior to the
applicable penalty or termination date and at a time appropriate for securing
maximum discounts allowable, employing for such purpose deposits of the
Mortgagor in the Escrow Account which shall have been estimated and
accumulated by the Servicer in amounts sufficient for such purposes, as
allowed under the terms of the Mortgage. If a Mortgage does not provide for
Escrow Payments, the Servicer shall determine that any such payments are made
by the Mortgagor. The Servicer assumes full responsibility for the timely
payment of all such bills and shall effect timely payments of all such bills
irrespective of each Mortgagor's faithful performance in the payment of same
or the making of the Escrow Payments and shall make Servicing Advances to
effect such payments, subject to
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its ability to recover such Servicing Advances pursuant to Subsection
11.07(b). With respect to each Mortgage Loan, on or before January 31st of
each year during the term of this Agreement, beginning January 31, 2006, the
Servicer shall ensure that all taxes due during the prior calendar year have
been paid on the related Mortgaged Property.
With respect to each Mortgage Loan identified on the Mortgage Loan
Schedule as an LPMI Loan, the Servicer shall maintain in full force and effect
any LPMI Policy, and from time to time, withdraw the premium with respect to
such Mortgage Loans from the Custodial Account in order to pay the premium
thereon on a timely basis. In the event that the interest payments made with
respect to the Mortgage Loan are less than the premium with respect to the
LPMI Policy, the Servicer shall advance from its own funds the amount of any
such shortfall in the LPMI Policy premiums, in payment of such premium. Any
such advance shall be a Servicing Advance subject to reimbursement. In the
event that such LPMI Policy shall be terminated, the Servicer shall obtain
from another insurer acceptable under the Underwriting Guidelines, a
comparable replacement policy, with a total coverage equal to the remaining
coverage of such terminated LPMI Policy, at substantially the same fee level.
If the insurer shall cease to be an insurer acceptable under the Underwriting
Guidelines, the Servicer shall determine whether recoveries under the LPMI
Policy are jeopardized for reasons related to the financial condition of such
insurer, it being understood that the Servicer shall in no event have any
responsibility or liability for any failure to recover under the LPMI Policy
for such reason. If the Servicer determines that recoveries are so
jeopardized, it shall notify the Purchaser and the Mortgagor, if required, and
obtain from another insurer acceptable under the Underwriting Guidelines a
replacement insurance policy. The Servicer shall not take any action which
would result in noncoverage under any applicable LPMI Policy of any loss
which, but for the actions of the Servicer would have been covered thereunder.
In connection with any assumption or substitution agreement entered into or to
be entered into, the Servicer shall promptly notify the insurer under the
related LPMI Policy, if any, of such assumption or substitution of liability
in accordance with the terms of such LPMI Policy and shall take all actions
which may be required by such insurer as a condition to the continuation of
coverage under such LPMI Policy. If such LPMI Policy is terminated as a result
of such assumption or substitution of liability, the Servicer shall obtain a
replacement LPMI Policy as provided above.
Purchaser, in its sole discretion, at any time, may (i) either
obtain an additional LPMI Policy on any Mortgage Loan which already has an
LPMI Policy in place, or (ii) obtain a LPMI Policy for any Mortgage Loan which
does not already have a LPMI Policy in place. In any event, the Servicer
agrees to administer such LPMI Policies in accordance with the Agreement or
any Reconstitution Agreement.
In connection with its activities as servicer, the Servicer agrees
to prepare and present, on behalf of itself and the Purchaser, claims to the
insurer under any PMI Policy or LPMI Policy in a timely fashion in accordance
with the terms of such PMI Policy and LPMI Policy and, in this regard, to take
such action as shall be necessary to permit recovery under any PMI Policy or
LPMI Policy respecting a defaulted Mortgage Loan. Any amounts collected by the
Servicer under any PMI Policy shall be deposited in the Escrow Account.
Subsection 11.09 Transfer of Accounts. The Servicer may transfer
the Custodial Account or the Escrow Account to a different depository
institution. Such transfer
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shall be made only upon obtaining the prior written consent of the Purchaser;
such consent not to be unreasonably withheld.
Subsection 11.10 Maintenance of Hazard Insurance. The Servicer
shall cause to be maintained for each Mortgage Loan fire and hazard insurance
with extended coverage customary in the area where the Mortgaged Property is
located that conforms to the requirements of Xxxxxx Xxx or Xxxxxxx Mac. If the
Mortgaged Property is in an area identified in the Federal Register by the
Federal Emergency Management Agency as having special flood hazards (and such
flood insurance has been made available) the Servicer will cause to be
maintained a flood insurance policy meeting the requirements of Xxxxxx Mae or
Xxxxxxx Mac. The Servicer shall also maintain on REO Property fire and hazard
insurance with extended coverage in an amount which meets the requirements of
Xxxxxx Mae or Xxxxxxx Mac. Any amounts collected by the Servicer under any
such policies (other than amounts to be deposited in the Escrow Account and
applied to the restoration or repair of the property subject to the related
Mortgage or property acquired in liquidation of the Mortgage Loan, or to be
released to the Mortgagor in accordance with Accepted Servicing Procedures)
shall be deposited in the Custodial Account, subject to withdrawal pursuant to
Subsection 11.05. It is understood and agreed that no earthquake or other
additional insurance need be required by the Servicer of any Mortgagor or
maintained on REO Property other than pursuant to such applicable laws and
regulations as shall at any time be in force and as shall require such
additional insurance. All policies required hereunder shall be endorsed with
standard mortgagee clauses with loss payable to Servicer, and shall provide
for at least thirty (30) days prior written notice of any cancellation,
reduction in amount or material change in coverage to the Servicer. The
Servicer shall not interfere with the Mortgagor's freedom of choice in
selecting either its insurance carrier or agent; provided, however, that the
Servicer shall not accept any such insurance policies that do not conform to
the requirements of Xxxxxx Mae or Xxxxxxx Mac.
Subsection 11.11 Fidelity Bond; Errors and Omissions Insurance.
The Servicer shall maintain, at its own expense, a blanket Fidelity Bond and
an errors and omissions insurance policy, with broad coverage on all officers,
employees or other persons acting in any capacity requiring such persons to
handle funds, money, documents or papers relating to the Mortgage Loans. These
policies shall insure the Servicer against losses resulting from dishonest or
fraudulent acts committed by the Servicer's personnel, any employees of
outside firms that provide data processing services for the Servicer, and
temporary contract employees or student interns. The Fidelity Bond shall also
protect and insure the Servicer against losses in connection with the release
or satisfaction of a Mortgage Loan without having obtained payment in full of
the indebtedness secured thereby. No provision of this Subsection 11.11
requiring such Fidelity Bond and errors and omissions insurance shall diminish
or relieve the Servicer of its duties and obligations as set forth in this
Agreement. The minimum coverage under any such Fidelity Bond and insurance
policy shall be at least equal to the corresponding amounts required by Xxxxxx
Mae in the Xxxxxx Xxx Servicing Guide or by Xxxxxxx Mac in the Xxxxxxx Xxx
Xxxxxxx' & Servicers' Guide, as amended or restated from time to time, or in
an amount as may be permitted to the Servicer by express waiver of Xxxxxx Mae
or Xxxxxxx Mac.
Subsection 11.12 Title, Management and Disposition of REO
Property. If title to the Mortgaged Property is acquired in foreclosure or by
deed in lieu of foreclosure, the deed or certificate of sale shall be taken in
the name of the Servicer or its nominee, in either case as
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nominee, for the benefit of the Purchaser of record on the date of acquisition
of title (the "Owner"). If the Servicer is not authorized or permitted to hold
title to real property in the state where the REO Property is located, or
would be adversely affected under the "doing business" or tax laws of such
state by so holding title, the deed or certificate of sale shall be taken in
the name of such Person or Persons as shall be consistent with an opinion of
counsel obtained by the Servicer, at the expense of the Purchaser, from an
attorney duly licensed to practice law in the state where the REO Property is
located. The Person or Persons holding such title other than the Owner shall
acknowledge in writing that such title is being held as nominee for the Owner.
The Servicer shall cause to be deposited on a daily basis in the
Custodial Account all revenues received with respect to the conservation and
disposition of the related REO Property and shall withdraw therefrom funds
necessary for the proper operation, management and maintenance of the REO
Property, including the cost of maintaining any hazard insurance pursuant to
Subsection 11.10 and the fees of any managing agent acting on behalf of the
Servicer. Any disbursement in excess of $5,000 shall be made only with the
written approval of the Purchaser. The Servicer shall make distributions as
required on each Remittance Date to the Purchaser of the net cash flow from
the REO Property (which shall equal the revenues from such REO Property net of
the expenses described above and of any reserves reasonably required from time
to time to be maintained to satisfy anticipated liabilities for such
expenses).
The disposition of REO Property shall be carried out by the
Servicer in accordance with the provisions of this Agreement and shall be made
at such price, and upon such terms and conditions, as the Servicer deems to be
in the best interests of the Owner. Upon the request of the Owner, and at the
Owner's expense, the Servicer shall cause an appraisal of the REO Property to
be performed for the Owner. The proceeds of sale of the REO Property shall be
promptly deposited in the Custodial Account and, as soon as practical
thereafter, the expenses of such sale shall be paid, the Servicer shall
reimburse itself for any related unreimbursed Servicing Advances, unpaid
Servicing Fees, unreimbursed advances made pursuant to Subsection 11.16 and
any appraisal performed pursuant to this paragraph and the net cash proceeds
of such sale remaining in the Custodial Account shall be distributed to the
Purchaser.
The Servicer shall either itself or through an agent selected by
the Servicer, 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) on such terms and
conditions as the Servicer deems to be in the best interest of the Owner.
If a REMIC election is or is to be made with respect to the
arrangement under which the Mortgage Loans and any REO Property are held, the
Servicer shall manage, conserve, protect and operate each REO Property 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) of the Code or
result in the receipt by such 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" within the meaning of Section 860G(c)(2) of the
Code.
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Upon request, with respect to any REO Property, the Servicer shall
furnish to the Owner a statement covering the Servicer's efforts in connection
with the sale of that REO Property and any rental of the REO Property
incidental to the sale thereof for the previous month (together with an
operating statement).
Subsection 11.13 Servicing Compensation. As compensation for its
services hereunder, the Servicer shall be entitled to retain the Servicing Fee
from interest payments on the Mortgage Loans. Additional servicing
compensation in the form of assumption fees, late payment charges and other
ancillary income shall be retained by the Servicer to the extent not required
to be deposited in the Custodial Account. The Servicer shall be required to
pay all expenses incurred by it in connection with its servicing activities
hereunder and shall not be entitled to reimbursement therefor except as
specifically provided for herein.
Subsection 11.14 Distributions. On each Remittance Date the
Servicer shall remit by wire transfer of immediately available funds to the
account designated in writing by the Purchaser of record on the preceding
Record Date (a) all Monthly Payments due in the Due Period relating to such
Remittance Date and received by the Servicer prior to the related
Determination Date, plus (b) all amounts, if any, which the Servicer is
obligated to distribute pursuant to Subsection 11.16, plus (c) any amounts
attributable to Principal Prepayments received in the calendar month preceding
the month in which the Remittance Date occurs, together with any additional
interest required to be deposited in the Custodial Account in connection with
such Principal Prepayments in accordance with Subsection 11.04(i), minus (d)
all amounts that may be withdrawn from the Custodial Account pursuant to
Subsections 11.05(b) through (e).
With respect to any remittance received by the Purchaser after the
Business Day on which such payment was due, the Servicer shall pay to the
Purchaser interest on any such late payment at an annual rate equal to the
Prime Rate, adjusted as of the date of each change, plus three percent (3%),
but in no event greater than the maximum amount permitted by applicable law.
Such interest shall be paid by the Servicer to the Purchaser on the date such
late payment is made and shall cover the period commencing with the Business
Day on which such payment was due and ending with the Business Day immediately
preceding the Business Day on which such payment is made, both inclusive. The
payment by the Servicer of any such interest shall not be deemed an extension
of time for payment or a waiver of any Event of Default by the Servicer.
Subsection 11.15 Statements to the Purchaser. Not later than the
12th calendar day of each month (or, if such 12th day is not a Business Day,
the following Business Day), the Servicer shall forward to the Purchaser in
hard copy and electronic format mutually acceptable to the Purchaser and the
Seller, a statement containing the information fields set forth on Exhibit 9
and certified by a Servicing Officer. Such statement shall also include (i)
information regarding delinquencies on Mortgage Loans, indicating the number
and aggregate principal amount of Mortgage Loans which are delinquent
(including number of days delinquent through liquidation of the related REO
Property) and the book value of any REO Property and (ii) Static Pool
Information regarding the Mortgage Loans. The Servicer shall submit to the
Purchaser monthly a liquidation report with respect to each Mortgaged Property
sold in a foreclosure sale as of the related Record Date and not previously
reported. Such liquidation report shall be incorporated into the remittance
report delivered to Purchaser.
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The Servicer shall furnish to the Purchaser an individual loan
accounting report (which may be the same report as set forth in the first
paragraph hereof) in hard copy and electronic format mutually acceptable to
the Purchaser and the Seller, as of the last Business Day of each month, in
the Purchaser's assigned loan number order (provided that such loan numbers
previously have been provided in writing by the Purchaser to the Servicer) to
document Mortgage Loan payment activity on an individual Mortgage Loan basis.
With respect to each month, the corresponding individual loan accounting
report shall be received by the Purchaser no later than the fifth Business Day
of the following month, which report shall contain the following:
(i) with respect to each Monthly Payment, the amount of such
remittance allocable to principal (including a separate
breakdown of any Principal Prepayment, including the date of
such prepayment, along with a detailed report of interest on
principal prepayment amounts remitted in accordance with
Subsection 11.14);
(ii) with respect to each Monthly Payment, the amount of such
remittance allocable to interest; and
(iii) the next actual due date for each Mortgage Loan.
In addition, within a reasonable period of time after the end of
each calendar year, the Servicer will furnish a report to each Person that was
a Purchaser at any time during such calendar year. Such report shall state the
aggregate of amounts distributed to the Purchaser for such calendar year. Such
obligation of the Servicer shall be deemed to have been satisfied to the
extent that substantially comparable information shall be provided by the
Servicer pursuant to any requirements of the Code.
The Servicer shall prepare and file any and all tax returns,
information statements or other filings required to be delivered to any
governmental taxing authority or to the Purchaser pursuant to any applicable
law with respect to the Mortgage Loans and the transactions contemplated
hereby. In addition, the Servicer shall provide the Purchaser with such
information concerning the Mortgage Loans as is necessary for such Purchaser
to prepare federal income tax returns as the Purchaser may reasonably request
from time to time.
Subsection 11.16 Advances by the Servicer. On the Business Day
immediately preceding each Remittance Date, the Servicer shall either (a)
deposit in the Custodial Account from its own funds an amount equal to the
aggregate amount of all Monthly Payments (with interest adjusted to the
Mortgage Loan Remittance Rate) which were due on the Mortgage Loans during the
applicable Due Period and which were delinquent at the close of business on
the immediately preceding Determination Date (each such advance, a "P&I
Advance"), (b) cause to be made an appropriate entry in the records of the
Custodial Account that amounts held for future distribution have been, as
permitted by this Subsection 11.16, used by the Servicer in discharge of any
such P&I Advance or (c) make P&I Advances in the form of any combination of
(a) or (b) aggregating the total amount of P&I Advances to be made. Any
amounts held for future distribution and so used shall be replaced by the
Servicer by deposit in the Custodial Account on or before any future
Remittance Date if funds in the Custodial Account on such
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Remittance Date shall be less than payments to the Purchaser required to be
made on such Remittance Date. The Servicer's obligation to make P&I Advances
as to any Mortgage Loan will continue through the last Monthly Payment due
prior to the payment in full of a Mortgage Loan, or through the last
Remittance Date prior to the Remittance Date for the distribution of all other
payments or recoveries (including proceeds under any title, hazard or other
insurance policy, or condemnation awards) with respect to a Mortgage Loan;
provided, however, that such obligation shall cease (i) for any Mortgage Loan
and on any Remittance Date that the distribution of all Liquidation Proceeds
and other payments or recoveries (including Insurance Proceeds and
Condemnation Proceeds) occurs with respect to such Mortgage Loan or (ii) if
the Servicer, in its good faith judgment, determines that P&I Advances would
not be recoverable pursuant to Subsection 11.05(d). The determination by the
Servicer that a P&I Advance, if made, would be nonrecoverable, shall be
evidenced by an Officer's Certificate of the Servicer, delivered to the
Purchaser, which details the reasons for such determination.
Subsection 11.17 Assumption Agreements. The Servicer will use its
best efforts to enforce any "due-on-sale" provision contained in any Mortgage
or Mortgage Note, provided that the Servicer shall permit such assumption if
so required in accordance with the terms of the Mortgage or the Mortgage Note.
When the Mortgaged Property has been conveyed by the Mortgagor, the Servicer
will, to the extent it has knowledge of such conveyance, exercise its rights
to accelerate the maturity of such Mortgage Loan under the "due-on-sale"
clause applicable thereto; provided, however, the Servicer will not exercise
such rights if prohibited by law from doing so. In connection with any such
assumption, the outstanding principal amount, the Monthly Payment or the
Mortgage Interest Rate of the related Mortgage Note shall not be changed, and
the term of the Mortgage Loan will not be increased or decreased. If an
assumption is allowed pursuant to this Subsection 11.17, the Servicer is
authorized to enter into a substitution of liability agreement with the
purchaser of the Mortgaged Property pursuant to which the original Mortgagor
is released from liability and the purchaser of the Mortgaged Property is
substituted as Mortgagor and becomes liable under the Mortgage Note.
Subsection 11.18 Satisfaction of Mortgages and Release of Mortgage
Files. Upon the payment in full of any Mortgage Loan, or the receipt by the
Servicer of a notification that payment in full will be escrowed in a manner
customary for such purposes, the Servicer will obtain the portion of the
Mortgage File that is in the possession of the Purchaser or its designee,
prepare and process any required satisfaction or release of the Mortgage and
notify the Purchaser in accordance with the provisions of this Agreement. The
Purchaser agrees to deliver to the Servicer the original Mortgage Note for any
Mortgage Loan not later than three (3) Business Days following its receipt of
a notice from the Servicer that such a payment in full has been received or
that a notification has been received that such a payment in full shall be
made. Such Mortgage Note shall be held by the Servicer, in trust, for the
purpose of canceling such Mortgage Note and delivering the cancelled Mortgage
Note to the Mortgagor in a timely manner as and to the extent provided under
applicable state law. If the Mortgage has been recorded in the name of MERS or
its designee, the Servicer shall take all necessary action to effect the
release of the Mortgage Loan on the records of MERS.
If the Servicer grants a satisfaction or release of a Mortgage
without having obtained payment in full of the indebtedness secured by the
Mortgage or should the Servicer otherwise prejudice any right the Purchaser
may have under the mortgage instruments, the
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Servicer, upon written demand of the Purchaser, shall remit to the Purchaser
the Stated Principal Balance of the related Mortgage Loan by deposit thereof
in the Custodial Account. The Fidelity Bond shall insure the Servicer against
any loss it may sustain with respect to any Mortgage Loan not satisfied in
accordance with the procedures set forth herein.
Subsection 11.19 Annual Statement as to Compliance. The Servicer
shall deliver to the Purchaser on or before March 10th of each year beginning
March 10, 2006, an Officer's Certificate stating that (i) a review of the
activities of the Servicer during the preceding calendar year and if
performance under this Agreement has been made under such officer's
supervision, and (ii) to the best of such officer's knowledge, based on such
review, the Servicer has fulfilled all its obligations under this Agreement
throughout such year, or, if there has been a default in the fulfillment of
any such obligation, specifying each such default known to such officer and
the nature and status thereof and the action being taken by the Servicer to
cure such default.
Subsection 11.20 Annual Independent Public Accountants' Servicing
Report or Attestation. On or before March 10th of each year beginning March
10, 2006, the Servicer, at its expense, shall cause a firm of independent
public accountants which is a member of the American Institute of Certified
Public Accountants to furnish a statement to the Purchaser to the effect that
such firm has, with respect to the Servicer's overall servicing operations,
examined such operations in accordance with the requirements of the Uniform
Single Attestation Program for Mortgage Bankers, stating such firm's
conclusions relating thereto.
Subsection 11.21 Servicer Shall Provide Access and Information as
Reasonably Required.The Servicer shall provide to the Purchaser, and for any
Purchaser insured by FDIC or NAIC, the supervisory agents and examiners of
FDIC and OTS or NAIC, access to any documentation regarding the Mortgage Loans
which may be required by applicable regulations. Such access shall be afforded
without charge, but only upon reasonable request, during normal business hours
and at the offices of the Servicer.
In addition, the Servicer shall furnish upon request by the
Purchaser, during the term of this Agreement, such periodic, special or other
reports or information, whether or not provided for herein, as shall be
necessary, reasonable and appropriate with respect to the purposes of this
Agreement and applicable regulations. All such reports or information shall be
provided by and in accordance with all reasonable instructions and directions
the Purchaser may require. The Servicer agrees to execute and deliver all such
instruments and take all such action as the Purchaser, from time to time, may
reasonably request in order to effectuate the purposes and to carry out the
terms of this Agreement.
Subsection 11.22 Transfer of Servicing. On the related Transfer
Date, if any, the Purchaser, or its designee, shall assume all servicing
responsibilities related to, and the Seller cease all servicing
responsibilities related to, the related Mortgage Loans subject to such
Transfer Date. On or prior to the related Transfer Date, the Seller shall, at
its sole cost and expense, take such steps as may be necessary or appropriate
to effectuate and evidence the transfer of the servicing of the related
Mortgage Loans to the Purchaser, or its designee, including but not limited to
the following:
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(a) Notice to Mortgagors. The Seller shall mail to the Mortgagor
of each related Mortgage Loan a letter advising such Mortgagor of the transfer
of the servicing of the related Mortgage Loan to the Purchaser, or its
designee, in accordance with the Xxxxxxxx Xxxxxxxx National Affordable Housing
Act of 1990, as amended; provided, however, the content and format of the
letter shall have the prior approval of the Purchaser. The Seller shall
provide the Purchaser with copies of all such related notices no later than
the related Transfer Date.
(b) Notice to Taxing Authorities and Insurance Companies. The
Seller shall transmit to the applicable taxing authorities and insurance
companies (including primary mortgage insurance policy insurers, if
applicable) and/or agents, notification of the transfer of the servicing to
the Purchaser, or its designee, and instructions to deliver all notices, tax
bills and insurance statements, as the case may be, to the Purchaser from and
after the related Transfer Date. The Seller shall provide the Purchaser with
copies of all such notices no later than the related Transfer Date.
(c) Delivery of Servicing Records. The Seller shall forward to the
Purchaser, or its designee, all servicing records and the Servicing File in
the Seller's possession relating to each related Mortgage Loan.
(d) Escrow Payments. The Seller shall provide the Purchaser, or
its designee, with immediately available funds by wire transfer in the amount
of the net Escrow Payments and suspense balances and all loss draft balances
associated with the related Mortgage Loans. The Seller shall provide the
Purchaser with an accounting statement, in electronic format acceptable to the
Purchaser in its sole discretion, of Escrow Payments and suspense balances and
loss draft balances sufficient to enable the Purchaser to reconcile the amount
of such payment with the accounts of the Mortgage Loans. Additionally, the
Seller shall wire transfer to the Purchaser the amount of any agency, trustee
or prepaid Mortgage Loan payments and all other similar amounts held by the
Seller.
(e) Payoffs and Assumptions. The Seller shall provide to the
Purchaser, or its designee, copies of all assumption and payoff statements
generated by the Seller on the related Mortgage Loans from the related Cut-off
Date to the related Transfer Date.
(f) Mortgage Payments Received Prior to Transfer Date. Prior to
the related Transfer Date all payments received by the Seller on each related
Mortgage Loan shall be properly applied by the Seller to the account of the
particular Mortgagor.
(g) Mortgage Payments Received after Transfer Date. The amount of
any related Monthly Payments received by the Seller after the related Transfer
Date shall be forwarded to the Purchaser by overnight mail on the date of
receipt or by wire transfer on the next succeeding Business Day. The Seller
shall notify the Purchaser of the particulars of the payment, which
notification requirement shall be satisfied if the Seller forwards with its
payment sufficient information to permit appropriate processing of the payment
by the Purchaser. The Seller shall assume full responsibility for the
necessary and appropriate legal application of such Monthly Payments received
by the Seller after the related Transfer Date with respect to related Mortgage
Loans then in foreclosure or bankruptcy; provided, for purposes of this
Agreement, necessary and appropriate legal application of such Monthly
Payments shall include, but not be
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limited to, endorsement of a Monthly Payment to the Purchaser with the
particulars of the payment such as the account number, dollar amount, date
received and any special Mortgagor application instructions and the Seller
shall comply with the foregoing requirements with respect to all Monthly
Payments received by the Seller after the related Transfer Date.
(h) Misapplied Payments. Misapplied payments shall be processed as
follows:
(i) All parties shall cooperate in correcting misapplication
errors;
(ii) The party receiving notice of a misapplied payment occurring
prior to the related Transfer Date and discovered after such
Transfer Date shall immediately notify the other party;
(iii) If a misapplied payment which occurred prior to the related
Transfer Date cannot be identified and said misapplied
payment has resulted in a shortage in a Custodial Account or
Escrow Account, the Seller shall be liable for the amount of
such shortage. The Seller shall reimburse the Purchaser for
the amount of such shortage within thirty (30) days after
receipt of written demand therefor from the Purchaser;
(iv) If a misapplied payment which occurred prior to the related
Transfer Date has created an improper Purchase Price as the
result of an inaccurate outstanding principal balance, a
check shall be issued to the party shorted by the improper
payment application within five (5) Business Days after
notice thereof by the other party; and
(v) Any check issued under the provisions of this Section
11.22(h) shall be accompanied by a statement indicating the
corresponding Seller and/or the Purchaser Mortgage Loan
identification number and an explanation of the allocation
of any such payments.
(i) Books and Records. On the related Transfer Date, the books,
records and accounts of the Seller with respect to the related Mortgage Loans
shall be in accordance with all applicable Purchaser requirements.
(j) Reconciliation. The Seller shall, on or before the related
Transfer Date, reconcile principal balances and make any monetary adjustments
required by the Purchaser. Any such monetary adjustments will be transferred
between the Seller and the Purchaser as appropriate.
(k) IRS Forms. The Seller shall file or shall cause to be filed
all IRS forms 1099, 1099A, 1098 or 1041 and K-1 which are required to be filed
on or before the related Transfer Date in relation to the servicing and
ownership of the related Mortgage Loans. The Seller shall provide copies of
such forms to the Purchaser upon request and shall reimburse the
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Purchaser for any costs or penalties incurred by the Purchaser due to the
Seller's failure to comply with this paragraph.
(l) Mortgage Loans in Foreclosure. The servicing with respect to
Mortgage Loans in foreclosure on or before the related Transfer Date shall not
be transferred from the Servicer to the Purchaser or its designee, as the case
may be, and such Mortgage Loans shall continue to be serviced by the Servicer
pursuant to the terms of this Agreement. However, if the Purchaser so elects,
the Purchaser may waive the provisions of this paragraph and accept transfer
of servicing of such Mortgage Loans and all amounts received by the Servicer
thereunder.
(m) Servicing Advances. Notwithstanding the fact that the related
Transfer Date has occurred, the Servicer shall not be reimbursed for any
Servicing Advances in relation to any Mortgage Loan until the Servicer or the
successor servicer receives a Monthly Payment or Liquidation Proceeds in
relation to such Mortgage Loan. At such time, the Servicer shall be entitled
to be reimbursed for all unreimbursed Servicing Advances with respect to such
Mortgage Loan on a first priority basis from the Monthly Payment or
Liquidation Proceeds received with respect to such Mortgage Loan. This clause
shall survive each Transfer Date.
Subsection 11.23 Notification of Maturity Date. With respect to
each Mortgage Loan, the Seller shall execute and deliver to the Mortgagor any
and all necessary notices required under applicable law and the terms of the
related Mortgage Note and Mortgage regarding the maturity date if required
under applicable law.
Subsection 11.24 Notification of Adjustments. With respect to each
ARM Mortgage Loan, Seller shall adjust the Mortgage Interest Rate on the
related Interest Rate Adjustment Date and shall adjust the Monthly Payment on
the related Payment Adjustment Date in compliance with the requirements of
applicable law and the related Mortgage and Mortgage Note. If, pursuant to the
terms of the Mortgage Note, another index is selected for determining the
Mortgage Interest Rate because the original index is no longer available, the
same index will be used with respect to each Mortgage Note which requires a
new index to be selected, provided that such selection does not conflict with
the terms of the related Mortgage Note. Seller shall execute and deliver any
and all necessary notices required under applicable law and the terms of the
related Mortgage Note and Mortgage regarding the Mortgage Interest Rate and
the Monthly Payment adjustments. Seller shall promptly, upon written request
therefor, deliver to the Purchaser such notifications and any additional
applicable data regarding such adjustments and the methods used to calculate
and implement such adjustments. Upon the discovery by Seller or the Purchaser
that Seller has failed to adjust a Mortgage Interest Rate or a Monthly Payment
pursuant to the terms of the related Mortgage Note and Mortgage, Seller shall
immediately deposit in the Custodial Account, from its own funds, the amount
of any interest loss caused the Purchaser thereby without reimbursement
therefor.
Section 12. The Servicer.
Subsection 12.01 Indemnification; Third Party Claims. The Servicer
agrees to indemnify and hold the Purchaser and any Successor Servicer and
their respective present and former directors, officers, employees and agents
harmless from any and all claims, losses, damages, penalties, fines,
forfeitures, legal fees and expenses (including, without limitation, any
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reasonable legal fees and expenses, judgments or expenses relating to such
liability, claim, loss or damage) and related costs, judgments, and any other
costs, fees and expenses that such parties may sustain in any way related to
the Servicer's failure:
(a) to observe and perform any or all of Servicer's duties,
obligations, covenants, agreements, warranties or representations contained in
this Agreement or in the related Purchase Price and Terms Agreement; or
(b) to comply with all applicable requirements contained in this
Agreement or the related Purchase Price and Terms Agreement with respect to
the servicing of the Mortgage Loan and the transfer of Servicing Rights.
The Servicer immediately shall notify the Purchaser if a claim is
made by a third party with respect to this Agreement.
For purposes of this Section, "Purchaser" shall mean the Person
then acting as the Purchaser under this Agreement and any and all Persons who
previously were "Purchasers" under this Agreement and "Successor Servicer"
shall mean any Person designated as the Successor Servicer pursuant to this
Agreement and any and all Persons who previously were "Successor Servicers"
pursuant to this Agreement.
If any action is commenced for which indemnification may be
available under this Subsection 12.01 of which an indemnified party has
notice, promptly after receipt by such indemnified party under this Subsection
12.01 of notice of the commencement of such action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Subsection 12.01, notify the indemnifying party in writing of
the commencement thereof; but the omission so to notify the indemnifying party
will not relieve the indemnifying party from any liability which it may have
to any indemnified party under this Subsection 12.01, except to the extent
that it has been prejudiced in any material respect, or from any liability
which it may have, otherwise than under this Subsection 12.01. In case any
such action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein, and to the extent that it may elect by
written notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party.
Any indemnified party shall have the right to employ separate
counsel in any such action and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such indemnified
party unless: (i) the employment thereof has been specifically authorized by
the indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that in the reasonable judgment of such counsel it is
necessary or appropriate for such indemnified party to employ separate counsel
due to actual or potential differing interests between the parties; or (iii)
the indemnifying party has failed to assume the defense of such action and
employ counsel reasonably satisfactory to the indemnified party, in which
case, if such indemnified party notifies the indemnifying party in writing
that it elects to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume the defense
of such action on behalf of such indemnified
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party, it being understood, however, the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses
of more than one separate firm of attorneys (in addition to local counsel) at
any time for all such indemnified parties.
Notwithstanding anything to the contrary contained herein, in no
event shall a termination of this Agreement or the Servicer hereunder
terminate any indemnification obligations of the Servicer under this
Agreement, which obligations shall survive any such termination.
Subsection 12.02 Merger or Consolidation of the Seller and the
Servicer. Each of the Seller and the Servicer will keep in full effect its
existence, rights and franchises under the laws of its jurisdiction of
incorporation or organization, and will obtain and preserve its qualification
to do business in each other jurisdiction in which such qualification is or
shall be necessary to protect the validity and enforceability of this
Agreement, or any of the Mortgage Loans and to perform its duties under this
Agreement.
Any Person into which the Seller or the Servicer may be merged or
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Seller or the Servicer shall be a party, or any
Person succeeding to the business of the Seller or the Servicer, shall be the
successor of the Seller or the Servicer hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding; provided, however,
that the successor or surviving Person shall be an institution whose deposits
are insured by FDIC or a company whose business is the origination and
servicing of mortgage loans, unless otherwise consented to by the Purchaser,
which consent shall not be unreasonably withheld, and shall be qualified to
service mortgage loans on behalf of Xxxxxx Xxx or Xxxxxxx Mac.
Subsection 12.03 Limitation on Liability of the Servicer and
Others. The duties and obligations of the Servicer shall be determined solely
by the express provisions of this Agreement, the Servicer shall not be liable
except for the performance of such duties and obligations as are specifically
set forth in this Agreement and no implied covenants or obligations shall be
read into this Agreement against the Servicer. Neither the Servicer nor any of
the directors, officers, employees or agents of the Servicer shall be under
any liability to the Purchaser for any action taken or for refraining from the
taking of any action in accordance with Accepted Servicing Procedures and
otherwise in good faith pursuant to this Agreement or for errors in judgment;
provided, however, that this provision shall not protect the Servicer against
any liability resulting from any breach of any representation or warranty made
herein, or from any liability specifically imposed on the Servicer herein;
and, provided, further, that this provision shall not protect the Servicer
against any liability that would otherwise be imposed by reason of the willful
misfeasance, bad faith or negligence in the performance of duties or by reason
of reckless disregard of the obligations or duties hereunder. The Servicer and
any director, officer, employee or agent of the Servicer may rely on any
document of any kind which it in good faith reasonably believes to be genuine
and to have been adopted or signed by the proper authorities respecting any
matters arising hereunder. Subject to the terms of Subsection 12.01, the
Servicer shall have no obligation to appear with respect to, prosecute or
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defend any legal action which is not incidental to the Servicer's duty to
service the Mortgage Loans in accordance with this Agreement.
Subsection 12.04 Seller and Servicer Not to Resign. With respect
to the retention of the Servicer to service the Mortgage Loans hereunder, the
Servicer acknowledges that the Purchaser has acted in reliance upon the
Servicer's independent status, the adequacy of its servicing facilities, plan,
personnel, records and procedures, its integrity, reputation and financial
standing and the continuance thereof. Without in any way limiting the
generality of this Section, neither Seller nor Servicer shall assign this
Agreement or the servicing hereunder or delegate its rights or duties
hereunder or any portion thereof to any third-party non-affiliate without the
prior written approval of the Purchaser, which consent shall be granted or
withheld in the Purchaser's sole discretion or upon the Servicer's
determination that the Servicer's duties hereunder are no longer permissible
under applicable law and such incapacity cannot be cured by the Servicer. Any
such determination permitting the unilateral resignation of the Servicer shall
be evidenced by an Opinion of Counsel to such effect delivered to the
Purchaser, which Opinion of Counsel shall be in form and substance reasonably
acceptable to the Purchaser. No such resignation or assignment shall become
effective until a successor has assumed the Servicer's responsibilities and
obligations hereunder in accordance with Subsection 14.03.
Section 13. Default.
Subsection 13.01 Events of Default. In case one or more of the
following Events of Default by the Servicer shall occur and be continuing:
(a) any failure by the Servicer to remit to the Purchaser any
payment required to be made under the terms of this Agreement which continues
unremedied for a period of two (2) 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 Purchaser;
(b) failure by the Servicer to duly observe or perform, in any
material respect, any other covenants, obligations or agreements of the
Servicer as set forth in this Agreement which failure continues unremedied for
a period of sixty (60) days (or, in the case of (i) the officer's certificate
required under Subsection 11.19, (ii) the annual independent public
accountants' servicing report required under Subsection 11.20 or (iii) the
certification required under Section 15 in the form of Exhibit 16, five (5)
days) after the date on which written notice of such failure, requiring the
same to be remedied, shall have been given to the Servicer by the Purchaser;
(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 thirty (30) days;
(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
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liabilities or similar proceedings of or relating to the Servicer or relating
to all or substantially all of the Servicer's property; or
(e) the Servicer shall admit in writing its inability to pay its
debts as they become due, file a petition to take advantage of any applicable
insolvency or reorganization statute, make an assignment for the benefit of
its creditors, or voluntarily suspend payment of its obligations;
then, and in each and every such case, so long as an Event of Default shall
not have been remedied, the Purchaser, by notice in writing to the Servicer,
may, in addition to whatever rights the Purchaser may have at law or equity to
damages, including injunctive relief and specific performance, commence
termination of all the rights and obligations of the Servicer under this
Agreement and in and to the Mortgage Loans and the proceeds thereof. Upon
receipt by the Servicer of such written notice from the Purchaser stating that
it intends to terminate the Servicer as a result of such Event of Default, all
authority and power of the Servicer under this Agreement, whether with respect
to the Mortgage Loans or otherwise, shall pass to and be vested in the
successor appointed pursuant to Subsection 14.03. Upon written request from
the Purchaser, the Servicer shall, in accordance with Subsection 11.22
prepare, execute and deliver to a successor any and all documents and other
instruments, place in such successor's possession all Mortgage Files and do or
cause to be done all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, including, but not limited to, the
transfer and endorsement or assignment of the Mortgage Loans and related
documents to the successor at the Servicer's sole expense. The Servicer agrees
to cooperate with the Purchaser and such successor in effecting the
termination of the Servicer's responsibilities and rights hereunder,
including, without limitation, the transfer to such successor for
administration by it of all amounts which shall at the time be credited by the
Servicer to the Custodial Account or Escrow Account or thereafter received
with respect to the Mortgage Loans.
Subsection 13.02 Waiver of Defaults. The Purchaser may waive any
default by the Servicer in the performance of its obligations hereunder and
its consequences. Upon any waiver of a past default, such default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to have
been remedied for every purpose of this Agreement. No such waiver shall extend
to any subsequent or other default or impair any right consequent thereto
except to the extent expressly so waived.
Section 14. Termination.
Subsection 14.01 Termination. The respective obligations and
responsibilities of the Servicer, as servicer, shall terminate upon (a) the
distribution to the Purchaser of the final payment or liquidation with respect
to the last Mortgage Loan (or advances of same by the Servicer); (b) the
disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure with respect to the last Mortgage Loan and the remittance of all
funds due hereunder or (c) by mutual consent of the Servicer and the Purchaser
in writing. Upon written request from the Purchaser in connection with any
such termination, the Servicer shall prepare, execute and deliver, any and all
documents and other instruments, place in the Purchaser's possession all
Mortgage Files, and 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
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assignment of the Mortgage Loans and related documents, or otherwise, at the
Purchaser's sole expense. The Servicer agrees to cooperate with the Purchaser
and such successor in effecting the termination of the Servicer's
responsibilities and rights hereunder as servicer, including, without
limitation, the transfer to such successor for administration by it of all
cash amounts which shall at the time be credited by the Servicer to the
Custodial Account or Escrow Account or thereafter received with respect to the
Mortgage Loans.
Subsection 14.02 Termination of the Servicer Without Cause.
Notwithstanding anything herein to the contrary, the Purchaser may terminate
the obligations and responsibilities of the Servicer in its capacity as
Servicer, without cause, upon payment to the Servicer of a termination fee
equal to the fair market value of the servicing rights with respect to a pool
of the aggregate outstanding principal balance of the Mortgage Loans as of the
date of such termination as mutually determined by the Servicer and the
Purchaser in good faith. The termination fee provided for in this Subsection
14.02 shall be paid by the Purchaser on the applicable Transfer Date.
Subsection 14.03 Successors to the Servicer. Prior to the
termination of the Servicer's responsibilities and duties under this Agreement
pursuant to Subsections 12.04, 13.01, 14.01 or 14.02, the Purchaser shall, (a)
succeed to and assume all of the Servicer's responsibilities, rights, duties
and obligations under this Agreement or (b) appoint a successor which shall
succeed to all rights and assume all of the responsibilities, duties and
liabilities of the Servicer under this Agreement upon such termination. In
connection with such appointment and assumption, the Purchaser may make such
arrangements for the compensation of such successor out of payments on
Mortgage Loans as it and such successor shall agree. If the Servicer's duties,
responsibilities and liabilities under this Agreement shall be terminated
pursuant to the aforementioned Subsections, the Servicer shall discharge such
duties and responsibilities during the period from the date it acquires
knowledge of such termination until the effective date thereof with the same
degree of diligence and prudence which it is obligated to exercise under this
Agreement, and shall take no action whatsoever that might impair or prejudice
the rights or financial condition of its successor. The resignation or removal
of the Servicer pursuant to the aforementioned Subsections shall not become
effective until a successor shall be appointed pursuant to this Subsection
14.03 and shall in no event relieve the Seller of the representations and
warranties made pursuant to Subsections 7.01 and 7.02 and the remedies
available to the Purchaser under Subsection 7.03, it being understood and
agreed that the provisions of such Subsections 7.01 and 7.02 shall be
applicable to the Seller notwithstanding any such resignation or termination
of the Servicer, or the termination of this Agreement.
Any successor appointed as provided herein shall execute,
acknowledge and deliver to the Servicer and to the Purchaser an instrument
accepting such appointment, whereupon such successor shall become fully vested
with all the rights, powers, duties, responsibilities, obligations and
liabilities of the Servicer, with like effect as if originally named as a
party to this Agreement. Any termination or resignation of the Servicer or
this Agreement pursuant to Subsections 12.04, 13.01, 14.01 or 14.02 shall not
affect any claims that the Purchaser may have against the Servicer arising
prior to any such termination or resignation.
Upon a successor's acceptance of appointment as such, the Servicer
shall notify by mail the Purchaser of such appointment.
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Section 15. Cooperation of Seller with a Reconstitution. The
Seller and the Purchaser agree that with respect to some or all of the
Mortgage Loans, after the related Closing Date, on one or more dates (each, a
"Reconstitution Date") at the Purchaser's sole option, the Purchaser may
effect a sale (each, a "Reconstitution") of some or all of the Mortgage Loans
then subject to this Agreement, without recourse, to:
(a) Xxxxxx Xxx under its Cash Purchase Program or MBS Program
(Special Servicing Option) (each, a "Xxxxxx Mae Transfer"); or
(b) Xxxxxxx Mac (the "Xxxxxxx Mac Transfer"); or
(c) one or more third party purchasers in one or more Whole Loan
Transfers; or
(d) one or more trusts or other entities to be formed as part of
one or more Securitization Transactions.
The Seller agrees to execute in connection with any Agency
Transfer, any and all reasonably acceptable pool purchase contracts, and/or
agreements among the Purchaser, the Seller, Xxxxxx Xxx or Xxxxxxx Mac (as the
case may be) and any servicer in connection with a Whole Loan Transfer, a
seller's warranties and servicing agreement or a participation and servicing
agreement in form and substance reasonably acceptable to the parties, and in
connection with a Securitization Transaction, a pooling and servicing
agreement in form and substance reasonably acceptable to the parties, which
will provide duties no more onerous than those requested of the Servicer under
this Agreement, or an Assignment and Recognition Agreement substantially in
the form attached hereto as Exhibit 15 (collectively, the agreements referred
to herein are designated, the "Reconstitution Agreements"), together with an
opinion of counsel with respect to such Reconstitution Agreements.
With respect to each Whole Loan Transfer and each Securitization
Transaction entered into by the Purchaser, the Seller agrees (1) to cooperate
fully with the Purchaser and any prospective purchaser with respect to all
reasonable requests and due diligence procedures; (2) to execute, deliver and
perform all Reconstitution Agreements required by the Purchaser; and (3) if
such Reconstitution occurs within two (2) years of the related Closing Date
with respect to any Mortgage Loan Package, to restate the representations and
warranties set forth in this Agreement as of the settlement or closing date in
connection with such Reconstitution or make the representations and warranties
set forth in the related selling/servicing guide of the servicer or issuer, as
the case may be, or such representations or warranties as may be required by
any rating agency or prospective purchaser of the related securities or such
Mortgage Loans, in connection with such Reconstitution. The Seller shall
provide to such servicer or issuer, as the case may be, and any other
participants or purchasers in such Reconstitution: (i) any and all information
and appropriate verification of information which may be reasonably available
to the Seller or its affiliates, whether through letters of its auditors and
counsel or otherwise, as the Purchaser or any such other participant shall
request; (ii) such additional representations, warranties, covenants, opinions
of counsel, letters from auditors, and certificates of public officials or
officers of the Seller or the Servicer as are reasonably believed necessary by
the Purchaser or any such other participant (including, without limitation,
such revisions to this Agreement relating to
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the servicing of REO Property and the provision of remittance reports as the
Purchaser may reasonably believe to be necessary to enable such servicer to
fulfill its master servicing obligations) and the out-of-pocket costs and
expenses thereof shall be reimbursed by the Purchaser in an amount up to
$4,000 and (iii) to execute, deliver and satisfy all conditions set forth in
an Indemnification and Contribution Agreement in substantially the form
attached hereto as Exhibit 3. Moreover, the Seller agrees to cooperate with
all reasonable requests made by the Purchaser to effect such Reconstitution
Agreements. The Seller shall indemnify the Purchaser, each Affiliate of the
Purchaser participating in the Reconstitution, each Person who controls the
Purchaser or such Affiliate and each underwriter and initial purchaser
participating in the Reconstitution, and their respective present and former
directors, officers, employees and agents, and hold each of them harmless from
and against any losses, damages, penalties, fines, forfeitures, reasonable
legal fees and expenses and related costs, judgments, and any other costs,
fees and expenses ("Losses") that each of them may sustain in any way related
to any information provided by or on behalf of the Seller regarding the Seller
or the Servicer, the Seller's or the Servicer's servicing practices or the
performance of the Mortgage Loans or the Underwriting Guidelines set forth in
any offering document prepared in connection with any Reconstitution, provided
that such Losses arise out of or are based upon any untrue statement of
material fact contained in the offering document, or the omission to state
therein any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, to the extent that such untrue statement or omission
relates solely to the information provided by or on behalf of the Seller. For
purposes of the previous sentence, "Purchaser" shall mean the Person then
acting as the Purchaser under this Agreement and any and all Persons who
previously were "Purchasers" under this Agreement.
With respect to any Mortgage Loans sold in a Securitization
Transaction in which the Servicer is the servicer, the Servicer agrees that on
or before March 15th of each year beginning March 15, 2006, the Servicer shall
deliver to the depositor, the master servicer (if any) and the trustee for the
securitization trust in the Securitization Transaction, and their officers,
directors and affiliates, a certification in the form attached as Exhibit 16
hereto, executed by the senior officer in charge of servicing at the Servicer
for use in connection with any Form 10-K to be filed with the Securities and
Exchange Commission with respect to the securitization trust. The Servicer
shall indemnify and hold harmless the depositor, the master servicer (if any)
and the trustee, and their respective officers, directors and Affiliates, from
and against any losses, damages, penalties, fines, forfeitures, legal fees and
expenses and related costs, judgments and other costs and expenses arising out
of or based upon any breach of the Servicer's obligations under this paragraph
or any material misstatement or omission, negligence, bad faith or willful
misconduct of the Servicer in connection therewith. If the indemnification
provided for in the preceding sentence is unavailable or insufficient to hold
harmless any indemnified party, then the Servicer agrees that it shall
contribute to the amount paid or payable by such indemnified party as a result
of the losses, claims, damages or liabilities of such indemnified party in
such proportion as is appropriate to reflect the relative fault of such
indemnified party, on the one hand, and the Servicer, on the other, in
connection with a breach of the Servicer's obligations under this paragraph or
any material misstatement or omission, negligence, bad faith or willful
misconduct of the Servicer in connection therewith.
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All Mortgage Loans not sold or transferred pursuant to a
Reconstitution shall remain subject to this Agreement and shall continue to be
serviced in accordance with the terms of this Agreement, and with respect
thereto this Agreement shall remain in full force and effect.
Section 16. Notices. All demands, notices and communications
hereunder shall be in writing and shall be given via email, facsimile
transmission or registered or certified mail to the person at the address set
forth below:
(a) if to the Purchaser:
Xxxxxxx Sachs Mortgage Company
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000 Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Xxxxxxx Sachs Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
(b) if to the Servicer:
American Home Mortgage Servicing, Inc.
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx, Executive Vice President
E-mail: xxxxx.xxxxxxxx@xxxxxxxxxx.xxx
With a copy to:
American Home Mortgage Corp.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxx, General Counsel
Facsimile: (000) 000-0000
E-mail: xxxx.xxxx@xxxxxxxxxx.xxx
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(c) if to the Seller:
American Home Mortgage Corp.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Xx.
Facsimile: (000) 000-0000
E-mail: xxx.xxxxxxx@xxxxxxxxxx.xxx
With a copy to:
American Home Mortgage Corp.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxx, General Counsel
Facsimile: (000) 000-0000
E-mail: xxxx.xxxx@xxxxxxxxxx.xxx
or such other address as may hereafter be furnished to the other party by like
notice. Any such demand, notice or communication hereunder shall be deemed to
have been received on the date delivered to or received at the premises of the
addressee (as evidenced, in the case of registered or certified mail, by the
date noted on the return receipt).
Section 17. Severability Clause. Any part, provision
representation or warranty of this Agreement which is prohibited or
unenforceable or is held to be void or unenforceable in any jurisdiction shall
be ineffective, as to such jurisdiction, to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction as to any Mortgage
Loan shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereto
waive any provision of law which prohibits or renders void or unenforceable
any provision hereof. If the invalidity of any part, provision, representation
or warranty of this Agreement shall deprive any party of the economic benefit
intended to be conferred by this Agreement, the parties shall negotiate, in
good-faith, to develop a structure the economic effect of which is nearly as
possible the same as the economic effect of this Agreement without regard to
such invalidity.
Section 18. No Partnership. Nothing herein contained shall be
deemed or construed to create a co-partnership or joint venture between the
parties hereto and the services of the Servicer shall be rendered as an
independent contractor and not as agent for the Purchaser.
Section 19. Counterparts. This Agreement may be executed
simultaneously in any number of counterparts. Each counterpart shall be deemed
to be an original, and all such counterparts shall constitute one and the same
instrument.
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Section 20. Governing Law Jurisdiction; Consent to Service of
Process. THIS AGREEMENT SHALL BE DEEMED IN EFFECT WHEN A FULLY EXECUTED
COUNTERPART THEREOF IS RECEIVED BY THE PURCHASER IN THE STATE OF NEW YORK AND
SHALL BE DEEMED TO HAVE BEEN MADE IN THE STATE OF NEW YORK. THIS AGREEMENT
SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ITS CHOICE OF LAW RULES AND PRINCIPLES. EACH OF THE PURCHASER
AND THE SELLER IRREVOCABLY (I) SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK AND THE FEDERAL COURTS OF THE UNITED STATES OF
AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT; (II) WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM IN ANY ACTION OR
PROCEEDING IN ANY SUCH COURT; (III) AGREES THAT A FINAL JUDGMENT IN ANY ACTION
OR PROCEEDING IN ANY SUCH COURT SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY
OTHER JURISDICTION BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY
LAW; AND (IV) CONSENTS TO SERVICE OF PROCESS UPON IT BY MAILING A COPY THEREOF
BY CERTIFIED MAIL ADDRESSED TO IT AS PROVIDED FOR NOTICES HEREUNDER.
Section 21. Mandatory Delivery; Grant of Security Interest. The
sale and delivery on the related Closing Date of the Mortgage Loans described
on the related Mortgage Loan Schedule is mandatory from and after the date of
the execution of the related Purchase Price and Terms Agreement, it being
specifically understood and agreed that each Mortgage Loan is unique and
identifiable on the date hereof and that an award of money damages would be
insufficient to compensate the Purchaser for the losses and damages incurred
by the Purchaser (including damages to prospective purchasers of the Mortgage
Loans) in the event of the Seller's failure to deliver (i) each of the related
Mortgage Loans or (ii) one or more Qualified Substitute Mortgage Loans or
(iii) one or more Mortgage Loans otherwise acceptable to the Purchaser on or
before the related Closing Date. The Seller hereby grants to the Purchaser a
lien on and a continuing security interest in each Mortgage Loan and each
document and instrument evidencing each such Mortgage Loan to secure the
performance by the Seller of its obligations under the related Purchase Price
and Terms Agreement, and the Seller agrees that it shall hold such Mortgage
Loans in custody for the Purchaser subject to the Purchaser's (i) right to
reject any Mortgage Loan (or Qualified Substitute Mortgage Loan) under the
terms of this Agreement and to require another Mortgage Loan (or Qualified
Substitute Mortgage Loan) to be substituted therefor, and (ii) obligation to
pay the Purchase Price for the Mortgage Loans. All rights and remedies of the
Purchaser under this Agreement are distinct from, and cumulative with, any
other rights or remedies under this Agreement or afforded by law or equity and
all such rights and remedies may be exercised concurrently, independently or
successively.
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Section 22. Intention of the Parties. It is the intention of the
parties that the Purchaser is purchasing, and the Seller is selling the
Mortgage Loans and not a debt instrument of the Seller or another security.
Accordingly, the parties hereto each intend to treat the transaction for
federal income tax purposes as a sale by the Seller, and a purchase by the
Purchaser, of the Mortgage Loans. Moreover, the arrangement under which the
Mortgage Loans are held shall be consistent with classification of such
arrangement as a grantor trust in the event it is not found to represent
direct ownership of the Mortgage Loans. The Purchaser shall have the right to
review the Mortgage Loans and the related Mortgage Loan Files to determine the
characteristics of the Mortgage Loans which shall affect the federal income
tax consequences of owning the Mortgage Loans and the Seller shall cooperate
with all reasonable requests made by the Purchaser in the course of such
review.
Section 23. Successors and Assigns. This Agreement shall bind and
inure to the benefit of and be enforceable by the Seller, the Servicer and the
Purchaser and the respective permitted successors and assigns of the Seller
and the successors and assigns of the Purchaser. This Agreement shall not be
assigned, pledged or hypothecated by the Seller to a non-affiliate third party
without the prior written consent of the Purchaser, which consent may be
withheld by the Purchaser in its sole discretion. This Agreement may be
assigned, pledged or hypothecated by the Purchaser in whole or in part, and
with respect to one or more of the Mortgage Loans, without the consent of the
Seller. There shall be no limitation on the number of assignments or transfers
allowable by the Purchaser with respect to the Mortgage Loans and this
Agreement. In the event the Purchaser assigns this Agreement, and the assignee
assumes any of the Purchaser's obligations hereunder, the Seller acknowledges
and agrees to look solely to such assignee, and not to the Purchaser, for
performance of the obligations so assumed and the Purchaser shall be relieved
from any liability to the Seller with respect thereto.
Section 24. Waivers. No term or provision of this Agreement may be
waived or modified unless such waiver or modification is in writing and signed
by the party against whom such waiver or modification is sought to be
enforced.
Section 25. Exhibits. The exhibits to this Agreement are hereby
incorporated and made a part hereof and are an integral part of this
Agreement.
Section 26. General Interpretive Principles. For purposes of this
Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
(a) the terms defined in this Agreement have the meanings
assigned to them in this Agreement and include the plural as well as the
singular, and the use of any gender herein shall be deemed to include the
other gender;
(b) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles;
(c) references herein to "Articles," "Sections,"
"Subsections," "Paragraphs" and other subdivisions without reference to a
document are to designated Articles, Sections, Subsections, Paragraphs and
other subdivisions of this Agreement;
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(d) reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section in
which the reference appears, and this rule shall also apply to Paragraphs and
other subdivisions;
(e) the words "herein," "hereof," "hereunder" and other
words of similar import refer to this Agreement as a whole and not to any
particular provision; and
(f) the terms "include" and "including" shall mean without
limitation by reason of enumeration.
Section 27. Reproduction of Documents. This Agreement and all
documents relating thereto, including, without limitation, (a) consents,
waivers and modifications which may hereafter be executed, (b) documents
received by any party at the closing, and (c) financial statements,
certificates and other information previously or hereafter furnished, may be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties hereto agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party hereto in
the regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
Section 28. Amendment. This Agreement may be amended from time to
time by the Purchaser, the Seller and the Servicer by written agreement signed
by the parties hereto.
Section 29. Confidentiality. Each of the Purchaser, the Seller and
the Servicer shall employ proper procedures and standards designed to maintain
the confidential nature of the terms of this Agreement, except to the extent:
(a) the disclosure of which is reasonably believed by such party to be
required in connection with regulatory requirements or other legal
requirements relating to its affairs; (b) disclosed to any one or more of such
party's employees, officers, directors, agents, attorneys or accountants who
would have access to the contents of this Agreement and such data and
information in the normal course of the performance of such Person's duties
for such party, to the extent such party has procedures in effect to inform
such Person of the confidential nature thereof; (c) that such information,
with the prior written consent of the other party, is disclosed in a
prospectus, prospectus supplement or private placement memorandum relating to
a securitization of the Mortgage Loans by the Purchaser (or an affiliate
assignee thereof) or to any Person in connection with the resale or proposed
resale of all or a portion of the Mortgage Loans by such party in accordance
with the terms of this Agreement; and (d) that is reasonably believed by such
party to be necessary for the enforcement of such party's rights under this
Agreement.
Notwithstanding any other express or implied agreement to the
contrary, each of the Purchaser, the Seller and the Servicer agree and
acknowledge that each of them and each of their employees, representatives,
and other agents may disclose to any and all persons, without limitation of
any kind, the tax treatment and tax structure of the transaction and all
materials of any kind (including opinions or other tax analyses) that are
provided to any of them relating to such tax treatment and tax structure,
except to the extent that confidentiality is reasonably
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necessary to comply with U.S. federal or state securities laws. For purposes
of this paragraph, the terms "tax treatment" and "tax structure" have the
meanings specified in Treasury Regulation section 1.6011-4(c).
Section 30. Entire Agreement. This Agreement constitutes the
entire agreement and understanding relating to the subject matter hereof
between the parties hereto and any prior oral or written agreements between
them shall be deemed to have merged herewith.
Section 31. Further Agreements. The Seller, the Servicer and the
Purchaser each agree to execute and deliver to the other such reasonable and
appropriate additional documents, instruments or agreements as may be
necessary or appropriate to effectuate the purposes of this Agreement.
Section 32. No Solicitation. From and after the related Closing
Date, the Seller agrees that it will not take any action or permit or cause
any action to be taken by any of its agents or affiliates, or by any
independent contractors on the Seller's behalf, to personally, by telephone or
mail, solicit a Mortgagor under any Mortgage Loan for the purpose of
refinancing a Mortgage Loan, in whole or in part, without the prior written
consent of the Purchaser. Notwithstanding the foregoing, it is understood and
agreed that the Seller, the Servicer or any of their respective affiliates.
Notwithstanding the foregoing, it is understood and agreed that promotions
undertaken by the Seller or any affiliate of the Seller which are directed to
the general public at large, including, without limitation, mass mailing,
internet and e-mail solicitations (which may not be specifically targeted at
the Mortgagors with respect to the Mortgage Loans) and newspaper, radio and
television advertisements shall not constitute solicitation under this Section
32:
(a) may advertise its availability for handling refinancings
of mortgages in its portfolio, including the promotion of terms it has
available for such refinancings, through the sending of letters or promotional
material, so long as it does not specifically target Mortgagors and so long as
such promotional material either is sent to the mortgagors for all of the
mortgages in the servicing portfolio of the Seller, the Servicer and any of
their affiliates (those it owns as well as those serviced for others);
(b) may provide pay-off information and otherwise cooperate
with individual mortgagors who contact it about prepaying their mortgages by
advising them of refinancing terms and streamlined origination arrangements
that are available; and
(c) may offer to refinance a Mortgage Loan made within
thirty (30) days following receipt by it of a pay-off request from the related
Mortgagor.
Promotions undertaken by the Seller or the Servicer or by any
affiliate of the Seller or the Servicer which are directed to the general
public at large (including, without limitation, mass mailing based on
commercially acquired mailing lists, newspaper, radio and television
advertisements), shall not constitute solicitation under this Section 32.
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Section 33. Waiver of Jury Trial. THE SELLER AND THE PURCHASER
EACH KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY
DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
Section 34. Compliance With Regulation AB
Subsection 34.01 (a) Intent of the Parties; Reasonableness.
The Purchaser, the Seller and the Servicer acknowledge and agree
that the purpose of Section 34 of this Agreement is to facilitate compliance
by the Purchaser and any Depositor with the provisions of Regulation AB and
related rules and regulations of the Commission. Although Regulation AB is
applicable by its terms only to offerings of asset-backed securities that are
registered under the Securities Act, the Seller and the Servicer acknowledge
that investors in privately offered securities may require that the Purchaser
or any Depositor provide comparable disclosure in unregistered offerings.
References in this Agreement to compliance with the disclosure provisions of
Regulation AB include provision of comparable disclosure in private offerings
where such disclosure is requested of the Seller or the Servicer or customary
in similar offerings in the industry.
Neither the Purchaser nor any Depositor shall exercise its right
to request delivery of information or other performance under these provisions
other than in good faith, or for purposes other than compliance with the
Securities Act, the Exchange Act and the rules and regulations of the
Commission thereunder (or the provision in a private offering of disclosure
comparable to that required under the Securities Act). Each of the Seller and
the Servicer acknowledges that interpretations of the requirements of
Regulation AB may change over time, whether due to interpretive guidance
provided by the Commission or its staff, consensus among participants in the
asset-backed securities markets, advice of counsel, or otherwise, and agrees
to comply with requests made by the Purchaser or any Depositor in good faith
for delivery of information under these provisions on the basis of evolving
interpretations of Regulation AB. In connection with any Securitization
Transaction, each of the Seller and the Servicer shall cooperate fully with
the Purchaser to deliver to the Purchaser (including any of its assignees or
designees) and any Depositor, any and all statements, reports, certifications,
records and any other information necessary in the good faith determination of
the Purchaser or any Depositor to permit the Purchaser or such Depositor to
comply with the provisions of Regulation AB, together with such disclosures
relating to the Seller, the Servicer, any Subservicer, any Third-Party
Originator and the Mortgage Loans, or the servicing of the Mortgage Loans,
reasonably believed by the Purchaser or any Depositor to be necessary in order
to effect such compliance.
The Purchaser (including any of its assignees or designees) shall
cooperate with the Seller or the Servicer by providing timely notice of
requests for information under these provisions and by reasonably limiting
such requests to information required, in the Purchaser's reasonable judgment,
to comply with Regulation AB.
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(b) Applicability of Section 34. Sections 34.02(a)(i)-(v),
34.03(c), (e) and (f), 34.04, 34.05 and 34.06 are applicable only if the
Servicer will (directly or through a Subservicer) service the Mortgage Loans,
at least for an interim period, following Reconstitution.
Subsection 34.02 Additional Representations and Warranties of the
Seller and the Servicer.
(a) Each of the Seller and the Servicer shall be deemed to
represent to the Purchaser and to any Depositor, as of the date on which
information is first provided to the Purchaser or any Depositor under
Subsection 34.03 that, except as disclosed in writing to the Purchaser or such
Depositor prior to such date: (i) the Servicer is not aware and has not
received notice that any default, early amortization or other performance
triggering event has occurred as to any other securitization due to any act or
failure to act of the Servicer; (ii) the Servicer has not been terminated as
servicer in a residential mortgage loan securitization, either due to a
servicing default or to application of a servicing performance test or
trigger; (iii) no material noncompliance with the applicable servicing
criteria with respect to other securitizations of residential mortgage loans
involving the Servicer as servicer has been disclosed or reported by the
Servicer; (iv) no material changes to the Servicer's policies or procedures
with respect to the servicing function it will perform under this Agreement
and any Reconstitution Agreement for mortgage loans of a type similar to the
Mortgage Loans have occurred during the three-year period immediately
preceding the related Securitization Transaction; (v) there are no aspects of
the Servicer's financial condition that could have a material adverse effect
on the performance by the Servicer of its servicing obligations under this
Agreement or any Reconstitution Agreement; (vi) there are no material legal or
governmental proceedings pending (or known to be contemplated) against the
Seller, the Servicer, any Subservicer or any Third-Party Originator; and (vii)
there are no affiliations, relationships or transactions relating to the
Seller, the Servicer, any Subservicer or any Third-Party Originator with
respect to any Securitization Transaction and any party thereto identified by
the related Depositor of a type described in Item 1119 of Regulation AB.
(b) If so requested by the Purchaser or any Depositor on any date
following the date on which information is first provided to the Purchaser or
any Depositor under Subsection 34.03, the Seller and the Servicer shall,
within five Business Days following such request, confirm in writing the
accuracy of the representations and warranties set forth in paragraph (a) of
this Section or, if any such representation and warranty is not accurate as of
the date of such request, provide reasonably adequate disclosure of the
pertinent facts, in writing, to the requesting party.
Subsection 34.03 Information to Be Provided by the Seller and the
Servicer.
In connection with any Securitization Transaction the Seller and
the Servicer shall (i) within five Business Days following request by the
Purchaser or any Depositor, provide to the Purchaser and such Depositor (or,
as applicable, cause each Third-Party Originator and each Subservicer to
provide), in writing and in form and substance reasonably satisfactory to the
Purchaser and such Depositor, the information and materials specified in
paragraphs (a), (b), (c) and (f) of this Section, and (ii) as promptly as
practicable following notice to or discovery by the Seller or the Servicer,
provide to the Purchaser and any Depositor (in writing and in form and
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substance reasonably satisfactory to the Purchaser and such Depositor) the
information specified in paragraph (d) of this Section.
(a) If so requested by the Purchaser or any Depositor, the Seller
and the Servicer, as applicable, shall provide such information regarding (i)
the Seller, as originator of the Mortgage Loans (including as an acquirer of
Mortgage Loans from a Qualified Correspondent), or (ii) each Third-Party
Originator, and (iii) the Servicer and, as applicable, each Subservicer, as is
requested for the purpose of compliance with Items 1103(a)(1), 1105, 1110,
1117 and 1119 of Regulation AB. Such information shall include, at a minimum:
(A) the originator's form of organization;
(B) a description of the originator's origination program
and how long the originator has been engaged in originating
residential mortgage loans, which description shall include a
discussion of the originator's experience in originating mortgage
loans of a similar type as the Mortgage Loans; information
regarding the size and composition of the originator's origination
portfolio; and information that may be material, in the good faith
judgment of the Purchaser or any Depositor, to an analysis of the
performance of the Mortgage Loans, including the originators'
credit-granting or underwriting criteria for mortgage loans of
similar type(s) as the Mortgage Loans and such other information
as the Purchaser or any Depositor may reasonably request for the
purpose of compliance with Item 1110(b)(2) of Regulation AB;
(C) a description of any material legal or governmental
proceedings pending (or known to be contemplated) against the
Seller, the Servicer, each Third-Party Originator and each
Subservicer; and
(D) a description of any affiliation or relationship between
the Servicer, each Third-Party Originator, each Subservicer and
any of the following parties to a Securitization Transaction, as
such parties are identified to the Servicer by the Purchaser or
any Depositor in writing in advance of such Securitization
Transaction:
(1) the sponsor;
(2) the depositor;
(3) the issuing entity;
(4) any servicer;
(5) any trustee;
(6) any originator;
(7) any significant obligor;
(8) any enhancement or support provider; and
(9) any other material transaction party.
(b) If so requested by the Purchaser or any Depositor on the basis
of its good faith interpretation of the requirements of Item 1105(c) of
Regulation AB, the Seller or the Servicer shall provide (or, as applicable,
cause each Third-Party Originator to provide), to the
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extent available to the Seller or the Servicer (or the Third-Part Originator,
as applicable) and the Seller or the Servicer shall use its good faith efforts
to obtain such information, Static Pool Information with respect to the
mortgage loans (of a similar type as the Mortgage Loans, as reasonably
identified by the Purchaser as provided below) originated by (i) the Seller,
if the Seller is an originator of Mortgage Loans (including as an acquirer of
Mortgage Loans from a Qualified Correspondent), and/or (ii) each Third-Party
Originator. Such Static Pool Information shall be prepared by the Seller or
the Servicer (or Third-Party Originator) on the basis of its reasonable, good
faith interpretation of the requirements of Item 1105(a)(1)-(3) of Regulation
AB. To the extent that there is reasonably available to the Seller or the
Servicer (or Third-Party Originator) Static Pool Information with respect to
more than one mortgage loan type, the Purchaser or any Depositor shall be
entitled to specify whether some or all of such information shall be provided
pursuant to this paragraph. The content of such Static Pool Information may be
in the form customarily provided by the Seller or the Servicer, and need not
be customized for the Purchaser or any Depositor. Such Static Pool Information
for each vintage origination year or prior securitized pool, as applicable,
shall be presented in increments no less frequently than quarterly over the
life of the mortgage loans included in the vintage origination year or prior
securitized pool. The most recent periodic increment must be as of a date no
later than 135 days prior to the date of the prospectus or other offering
document in which the Static Pool Information is to be included or
incorporated by reference. The Static Pool Information shall be provided in an
electronic format that provides a permanent record of the information
provided, such as a portable document format (pdf) file, or other such
electronic format reasonably required by the Purchaser or the Depositor, as
applicable.
Promptly following notice or discovery of a material error in
Static Pool Information provided pursuant to the immediately preceding
paragraph (including an omission to include therein information required to be
provided pursuant to such paragraph), the Seller or the Servicer shall provide
corrected Static Pool Information to the Purchaser or any Depositor, as
applicable, in the same format in which Static Pool Information was previously
provided to such party by the Seller or the Servicer.
If so requested by the Purchaser or any Depositor, the Seller or
the Servicer shall provide (or, as applicable, cause each Third-Party
Originator to provide), at the expense of the requesting party (to the extent
of any additional incremental expense associated with delivery pursuant to
this Agreement), such agreed-upon procedures letters of certified public
accountants reasonably acceptable to the Purchaser or Depositor, as
applicable, pertaining to Static Pool Information relating to prior
securitized pools for securitizations closed on or after January 1, 2006 or,
in the case of Static Pool Information with respect to the Seller's or
Third-Party Originator's originations or purchases, to calendar months
commencing January 1, 2006, as the Purchaser or such Depositor shall
reasonably request. Such letters shall be addressed to and be for the benefit
of such parties as the Purchaser or such Depositor shall designate, which may
include, by way of example, any Sponsor, any Depositor and any broker dealer
acting as underwriter, placement agent or initial purchaser with respect to a
Securitization Transaction. Any such statement or letter may take the form of
a standard, generally applicable document accompanied by a reliance letter
authorizing reliance by the addressees designated by the Purchaser or such
Depositor.
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(c) If so requested by the Purchaser or any Depositor, the Seller
or the Servicer, as applicable, shall provide such information regarding the
Seller, the Servicer as servicer of the Mortgage Loans, and each Subservicer
(each of the Servicer and each Subservicer, for purposes of this paragraph, a
"Transaction Servicer"), as is requested for the purpose of compliance with
Item 1108 of Regulation AB. Such information shall include, at a minimum:
(A) the Transaction Servicer's form of organization;
(B) a description of how long the Transaction Servicer has
been servicing residential mortgage loans; a general discussion of
the Transaction Servicer's experience in servicing assets of any
type as well as a more detailed discussion of the Transaction
Servicer's experience in, and procedures for, the servicing
function it will perform under this Agreement and any
Reconstitution Agreements; information regarding the size,
composition and growth of the Transaction Servicer's portfolio of
residential mortgage loans of a type similar to the Mortgage Loans
and information on factors related to the Transaction Servicer
that may be material, in the good faith judgment of the Purchaser
or any Depositor, to any analysis of the servicing of the Mortgage
Loans or the related asset-backed securities, as applicable,
including, without limitation:
(1) whether any prior securitizations of mortgage
loans of a type similar to the Mortgage Loans involving the
Transaction Servicer have defaulted or experienced an early
amortization or other performance triggering event because
of servicing during the three-year period immediately
preceding the related Securitization Transaction;
(2) the extent of outsourcing the Transaction Servicer
utilizes;
(3) whether there has been previous disclosure of
material noncompliance with the applicable servicing
criteria with respect to other securitizations of
residential mortgage loans involving the Transaction
Servicer as a servicer during the three-year period
immediately preceding the related Securitization
Transaction;
(4) whether the Transaction Servicer has been
terminated as servicer in a residential mortgage loan
securitization, either due to a servicing default or to
application of a servicing performance test or trigger; and
(5) such other information as the Purchaser or any
Depositor may reasonably request for the purpose of
compliance with Item 1108(b)(2) of Regulation AB;
(C) a description of any material changes during the
three-year period immediately preceding the related Securitization
Transaction to the Transaction Servicer's policies or procedures
with respect to the servicing function it will
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perform under this Agreement and any Reconstitution Agreements for
mortgage loans of a type similar to the Mortgage Loans;
(D) information regarding the Transaction Servicer's
financial condition, to the extent that there is a material risk
that an adverse financial event or circumstance involving the
Transaction Servicer could have a material adverse effect on the
performance by the Transaction Servicer of its servicing
obligations under this Agreement or any Reconstitution Agreement;
(E) information regarding advances made by the Transaction
Servicer on the Mortgage Loans and the Transaction Servicer's
overall servicing portfolio of residential mortgage loans for the
three-year period immediately preceding the related Securitization
Transaction, which may be limited to a statement by an authorized
officer of the Transaction Servicer to the effect that the
Transaction Servicer has made all advances required to be made on
residential mortgage loans serviced by it during such period, or,
if such statement would not be accurate, information regarding the
percentage and type of advances not made as required, and the
reasons for such failure to advance;
(F) a description of the Transaction Servicer's processes
and procedures designed to address any special or unique factors
involved in servicing loans of a similar type as the Mortgage
Loans;
(G) a description of the Transaction Servicer's processes
for handling delinquencies, losses, bankruptcies and recoveries,
such as through liquidation of mortgaged properties, sale of
defaulted mortgage loans or workouts; and
(H) information as to how the Transaction Servicer defines
or determines delinquencies and charge-offs, including the effect
of any grace period, re-aging, restructuring, partial payments
considered current or other practices with respect to delinquency
and loss experience.
(d) If so requested by the Purchaser or any Depositor for the
purpose of satisfying its reporting obligation under the Exchange Act with
respect to any class of asset-backed securities, the Seller and the Servicer,
as applicable, shall (or shall cause each Subservicer and Third-Party
Originator to) (i) notify the Purchaser and any Depositor in writing of (A)
any material litigation or governmental proceedings pending against the
Servicer, any Subservicer or any Third-Party Originator and (B) any
affiliations or relationships that develop following the closing date of a
Securitization Transaction between the Seller, the Servicer, any Subservicer
or any Third-Party Originator and any of the parties specified in clause (D)
of paragraph (a) of this Section (and any other parties identified in writing
by the requesting party) with respect to such Securitization Transaction, and
(ii) provide to the Purchaser and any Depositor a description of such
proceedings, affiliations or relationships.
(e) As a condition to the succession to the Servicer or any
Subservicer as servicer or subservicer under this Agreement or any
Reconstitution Agreement by any Person (i) into which the Servicer or such
Subservicer may be merged or consolidated, or (ii) which may be
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appointed as a successor to the Servicer or any Subservicer, the Servicer
shall provide to the Purchaser and any Depositor, at least 15 calendar days
prior to the effective date of such succession or appointment, (x) written
notice to the Purchaser and any Depositor of such succession or appointment
and (y) in writing and in form and substance reasonably satisfactory to the
Purchaser and such Depositor, all information reasonably requested by the
Purchaser or any Depositor in order to comply with its reporting obligation
under Item 6.02 of Form 8-K with respect to any class of asset-backed
securities.
(f) In addition to such information as the Servicer, as servicer,
is obligated to provide pursuant to other provisions of this Agreement, if so
requested by the Purchaser or any Depositor, the Servicer shall provide such
information regarding the performance or servicing of the Mortgage Loans as is
reasonably required by the Purchaser or any Depositor to facilitate
preparation of distribution reports in accordance with Item 1121 of Regulation
AB and to permit the Purchaser or such Depositor to comply with the provisions
of Regulation AB relating to Static Pool Information regarding the performance
of the Mortgage Loans on the basis of the Purchaser's or such Depositor's
reasonable, good faith interpretation of the requirements of Item
1105(a)(1)-(3) of Regulation AB (including without limitation as to the format
and content of such Static Pool Information). Such information shall be
provided concurrently with the monthly reports otherwise required to be
delivered by the servicer under this Agreement, commencing with the first such
report due not less than ten (10) Business Days following such request.
Subsection 34.04 Servicer Compliance Statement.
On or before March 10 of each calendar year, commencing in 2007,
the Servicer shall deliver to the Purchaser and any Depositor a statement of
compliance addressed to the Purchaser and such Depositor and signed by an
authorized officer of the Servicer, to the effect that (i) a review of the
Servicer's activities during the immediately preceding calendar year (or
applicable portion thereof) and of its performance under this Agreement and
any applicable Reconstitution Agreement during such period has been made under
such officer's supervision, and (ii) to the best of such officers' knowledge,
based on such review, the Servicer has fulfilled all of its obligations under
this Agreement and any applicable Reconstitution Agreement in all material
respects throughout such calendar year (or applicable portion thereof) or, if
there has been a failure to fulfill any such obligation in any material
respect, specifically identifying each such failure known to such officer and
the nature and the status thereof.
Subsection 34.05 Report on Assessment of Compliance and
Attestation.
(a) On or before March 10 of each calendar year, commencing in
2007, the Servicer shall:
(i) deliver to the Purchaser and any Depositor a report (in form
and substance reasonably satisfactory to the Purchaser and
such Depositor) regarding the Servicer's assessment of
compliance with the Servicing Criteria during the
immediately preceding calendar year, as required under Rules
13a-18 and 15d-18 of the Exchange Act and Item 1122 of
Regulation AB. Such report shall be
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addressed to the Purchaser and such Depositor and signed by
an authorized officer of the Servicer, and shall address
each of the Servicing Criteria specified on a certification
substantially in the form of Exhibit 17 hereto delivered to
the Purchaser concurrently with the execution of this
Agreement;
(ii) deliver to the Purchaser and any Depositor a report of a
registered public accounting firm reasonably acceptable to
the Purchaser and such Depositor that attests to, and
reports on, the assessment of compliance made by the
Servicer and delivered pursuant to the preceding paragraph.
Such attestation shall be in accordance with Rules
1-02(a)(3) and 2-02(g) of Regulation S-X under the
Securities Act and the Exchange Act;
(iii) cause each Subservicer, and each Subcontractor determined by
the Servicer pursuant to Subsection 34.06(b) to be
"participating in the servicing function" within the meaning
of Item 1122 of Regulation AB, to deliver to the Purchaser
and any Depositor an assessment of compliance and
accountants' attestation as and when provided in paragraphs
(a) and (b) of this Section; and
(iv) if requested by the Purchaser or any Depositor not later
than February 1 of the calendar year in which such
certification is to be delivered, deliver to the Purchaser,
any Depositor and any other Person that will be responsible
for signing the certification (a "Sarbanes Certification")
required by Rules 13a-14(d) and 15d-14(d) under the Exchange
Act (pursuant to Section 302 of the Xxxxxxxx-Xxxxx Act of
2002) on behalf of an asset-backed issuer with respect to a
Securitization Transaction a certification in the form
attached hereto as Exhibit 16.
The Servicer acknowledges that the parties identified in clause
(a)(iv) above may rely on the certification provided by the Servicer pursuant
to such clause in signing a Sarbanes Certification and filing such with the
Commission. Neither the Purchaser nor any Depositor will request delivery of a
certification under clause (a)(iv) above, unless a Depositor is required under
the Exchange Act to file an annual report on Form 10-K with respect to an
issuing entity whose asset pool includes Mortgage Loans.
(b) Each assessment of compliance provided by a Subservicer
pursuant to Subsection 34.05(a)(i) shall address each of the Servicing
Criteria specified on a certification substantially in the form of Exhibit 17
hereto delivered to the Purchaser concurrently with the execution of this
Agreement or, in the case of a Subservicer subsequently appointed as such, on
or prior to the date of such appointment. An assessment of compliance provided
by a Subcontractor pursuant to Subsection 34.05(a)(iii) need not address any
elements of the Servicing Criteria other than those specified by the Servicer
pursuant to Subsection 34.06.
Subsection 34.06 Use of Subservicers and Subcontractors.
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The Servicer shall not hire or otherwise utilize the services of
any Subservicer to fulfill any of the obligations of the Servicer as servicer
under this Agreement or any Reconstitution Agreement unless the Servicer
complies with the provisions of paragraph (a) of this Section. The Servicer
shall not hire or otherwise utilize the services of any Subcontractor, and
shall not permit any Subservicer to hire or otherwise utilize the services of
any Subcontractor, to fulfill any of the obligations of the Servicer as
servicer under this Agreement or any Reconstitution Agreement unless the
Servicer complies with the provisions of paragraph (b) of this Section.
(a) It shall not be necessary for the Servicer to seek the consent
of the Purchaser or any Depositor to the utilization of any Subservicer. The
Servicer shall cause any Subservicer used by the Servicer (or by any
Subservicer) for the benefit of the Purchaser and any Depositor to comply with
the provisions of this Section and with Subsections 34.02, 34.03(c) and (e),
34.04, 34.05 and 34.07 of this Agreement to the same extent as if such
Subservicer were the Servicer, and to provide the information required with
respect to such Subservicer under Subsection 34.03(d) of this Agreement. The
Servicer shall be responsible for obtaining from each Subservicer and
delivering to the Purchaser and any Depositor any servicer compliance
statement required to be delivered by such Subservicer under Subsection 34.04,
any assessment of compliance and attestation required to be delivered by such
Subservicer under Subsection 34.05 and any certification required to be
delivered to the Person that will be responsible for signing the Sarbanes
Certification under Subsection 34.05 as and when required to be delivered.
(b) It shall not be necessary for the Servicer to seek the consent
of the Purchaser or any Depositor to the utilization of any Subcontractor. The
Servicer shall promptly upon request provide to the Purchaser and any
Depositor (or any designee of the Depositor, such as a master servicer or
administrator) a written description (in form and substance satisfactory to
the Purchaser and such Depositor) of the role and function of each
Subcontractor utilized by the Servicer or any Subservicer, specifying (i) the
identity of each such Subcontractor, (ii) which (if any) of such
Subcontractors are "participating in the servicing function" within the
meaning of Item 1122 of Regulation AB, and (iii) which elements of the
Servicing Criteria will be addressed in assessments of compliance provided by
each Subcontractor identified pursuant to clause (ii) of this paragraph.
As a condition to the utilization of any Subcontractor determined
to be "participating in the servicing function" within the meaning of Item
1122 of Regulation AB, the Servicer shall cause any such Subcontractor used by
the Servicer (or by any Subservicer) for the benefit of the Purchaser and any
Depositor to comply with the provisions of Subsections 34.05 and 34.07 of this
Agreement to the same extent as if such Subcontractor were the Servicer. The
Servicer shall be responsible for obtaining from each Subcontractor and
delivering to the Purchaser and any Depositor any assessment of compliance and
attestation required to be delivered by such Subcontractor under Subsection
34.05, in each case as and when required to be delivered.
Subsection 34.07 Indemnification; Remedies.
(a) Each of the Seller and the Servicer shall indemnify the
Purchaser, each affiliate of the Purchaser, and each of the following parties
participating in a Securitization
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Transaction: each sponsor and issuing entity; each Person responsible for the
preparation, execution or filing of any report required to be filed with the
Commission with respect to such Securitization Transaction, or for execution
of a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the
Exchange Act with respect to such Securitization Transaction; each broker
dealer acting as underwriter, placement agent or initial purchaser, each
Person who controls any of such parties or the Depositor (within the meaning
of Section 15 of the Securities Act and Section 20 of the Exchange Act); and
the respective present and former directors, officers, employees and agents of
each of the foregoing and of the Depositor, and shall hold each of them
harmless from and against any losses, damages, penalties, fines, forfeitures,
legal fees and expenses and related costs, judgments, and any other costs,
fees and expenses that any of them may sustain arising out of or based upon:
(i)(A) any untrue statement of a material fact contained or
alleged to be contained in any information, report,
certification, accountants' letter or other material
provided in written or electronic form under this
Section 34 by or on behalf of the Seller or the
Servicer, or provided under this Section 34 by or on
behalf of any Subservicer, Subcontractor or
Third-Party Originator (collectively, the "Servicer
Information"), or (B) the omission or alleged omission
to state in the Servicer Information a material fact
required to be stated in the Servicer Information or
necessary in order to make the statements therein, in
the light of the circumstances under which they were
made, not misleading; provided, by way of
clarification, that clause (B) of this paragraph shall
be construed solely by reference to the Servicer
Information and not to any other information
communicated in connection with a sale or purchase of
securities, without regard to whether the Servicer
Information or any portion thereof is presented
together with or separately from such other
information;
(i) any failure by the Seller, the Servicer, any
Subservicer, any Subcontractor or any Third-Party
Originator to deliver any information, report,
certification, accountants' letter or other material
when and as required under this Section 34, including
(except as provided below) any failure by the Servicer
to identify pursuant to Subsection 34.06(b) any
Subcontractor "participating in the servicing
function" within the meaning of Item 1122 of
Regulation AB; or
(ii) any breach by the Seller or the Servicer of a
representation or warranty set forth in Subsection
34.02(a) or in a writing furnished pursuant to
Subsection 34.02(b) and made as of a date prior to the
closing date of the related Securitization
Transaction, to the extent that such breach is not
cured by such closing date, or any breach by the
Seller or the Servicer of a representation or warranty
in a writing furnished pursuant to Subsection 34.02(b)
to the extent made as of a date subsequent to such
closing date.
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In the case of any failure of performance described in clause
(a)(ii) of this Section, the Seller or the Servicer, as applicable, shall
promptly reimburse the Purchaser, any Depositor, as applicable, and each
Person responsible for the preparation, execution or filing of any report
required to be filed with the Commission with respect to such Securitization
Transaction, or for execution of a certification pursuant to Rule 13a-14(d) or
Rule 15d-14(d) under the Exchange Act with respect to such Securitization
Transaction, for all costs reasonably incurred by each such party in order to
obtain the information, report, certification, accountants' letter or other
material not delivered as required by the Seller, the Servicer, any
Subservicer, any Subcontractor or any Third-Party Originator.
(b) (i) Any failure by the Seller, the Servicer, any Subservicer,
any Subcontractor or any Third-Party Originator to deliver any information,
report, certification, accountants' letter or other material when and as
required under this Section 34, or any breach by the Seller or the Servicer of
a representation or warranty set forth in Subsection 34.02(a) or in a writing
furnished pursuant to Subsection 34.02(b) and made as of a date prior to the
closing date of the related Securitization Transaction, to the extent that
such breach is not cured by such closing date, or any breach by the Servicer
of a representation or warranty in a writing furnished pursuant to Subsection
34.02(b) to the extent made as of a date subsequent to such closing date,
shall, except as provided in clause (ii) of this paragraph, immediately and
automatically, without notice or grace period, constitute an Event of Default
with respect to the Servicer under this Agreement and any applicable
Reconstitution Agreement, and shall entitle the Purchaser or Depositor, as
applicable, in its sole discretion to terminate the rights and obligations of
the Servicer as servicer under this Agreement and/or any applicable
Reconstitution Agreement without payment (notwithstanding anything in this
Agreement or any applicable Reconstitution Agreement to the contrary) of any
compensation to the Servicer; provided that to the extent that any provision
of this Agreement and/or any applicable Reconstitution Agreement expressly
provides for the survival of certain rights or obligations following
termination of the Servicer as servicer, such provision shall be given effect.
(ii) Any failure by the Seller, the Servicer, any Subservicer or
any Subcontractor to deliver any information, report, certification or
accountants' letter when and as required under Subsection 34.04 or 34.05,
including (except as provided below) any failure by the Servicer to identify
pursuant to Subsection 34.06(b) any Subcontractor "participating in the
servicing function" within the meaning of Item 1122 of Regulation AB, which
continues unremedied for ten calendar days after the date on which such
information, report, certification or accountants' letter was required to be
delivered shall constitute an Event of Default with respect to the Servicer
under this Agreement and any applicable Reconstitution Agreement, and shall
entitle the Purchaser or Depositor, as applicable, in its sole discretion to
terminate the rights and obligations of the Servicer as servicer under this
Agreement and/or any applicable Reconstitution Agreement without payment
(notwithstanding anything in this Agreement to the contrary) of any
compensation to the Seller; provided that to the extent that any provision of
this Agreement and/or any applicable Reconstitution Agreement expressly
provides for the survival of certain rights or obligations following
termination of the Servicer as servicer, such provision shall be given effect.
Neither the Purchaser nor any Depositor shall be entitled to
terminate the rights and obligations of the Seller or the Servicer pursuant to
this subparagraph (b)(ii) if a failure of
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the Seller or the Servicer to identify a Subcontractor "participating in the
servicing function" within the meaning of Item 1122 of Regulation AB was
attributable solely to the role or functions of such Subcontractor with
respect to mortgage loans other than the Mortgage Loans.
(iii) The Servicer shall promptly reimburse the Purchaser
(or any designee of the Purchaser, such as a master servicer) and any
Depositor, as applicable, for all reasonable expenses incurred by the
Purchaser (or such designee) or such Depositor, as such are incurred, in
connection with the termination of the Servicer as servicer and the transfer
of servicing of the Mortgage Loans to a successor servicer. The provisions of
this paragraph shall not limit whatever rights the Purchaser or any Depositor
may have under other provisions of this Agreement and/or any applicable
Reconstitution Agreement or otherwise, whether in equity or at law, such as an
action for damages, specific performance or injunctive relief.
Subsection 34.08 Loan Performance Information.
With respect to those Mortgage Loans that were originated by the
Seller and sold to the Purchaser pursuant to this Agreement and subsequently
securitized by the Purchaser or any of its Affiliates, the Purchaser shall, to
the extent consistent with then-current industry practice, cause any Successor
Servicer (if the Servicer has been terminated hereunder) (or another party to
such securitization) under the securitization to provide, information with
respect to the Mortgage Loans from and after cut-off date of such
securitization necessary for the Seller to comply with its obligations under
Regulation AB, including, without limitation, providing to the Seller static
pool information, as set forth in Item 1105(a)(2) and (5) of Regulation AB
("Loan Performance Data").
If the Servicer has been terminated hereunder, the Purchaser
shall, or cause the Successor Servicer to, indemnify the Seller or such, each
Person who controls the Seller, each affiliate of the Seller and the
respective present and former directors, officers, employees and agents of
each of the foregoing, and shall hold each of them harmless from and against
any losses, damages, penalties, fines, forfeitures, reasonable legal fees and
expenses and related costs, judgments, and any other costs, fees and expenses
that any of them may sustain arising out of or based upon: (A) any untrue
statement of a material fact contained or alleged to be contained in the Loan
Performance Information or (B) the omission or alleged omission to state in
the Loan Performance Information a material fact required to be stated in the
Loan Performance Information or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, by way of clarification, that clause (B) of this
paragraph shall be construed solely by reference to the Loan Performance
Information and not to any other information communicated in connection with a
sale or purchase of securities, without regard to whether the Loan Performance
Information or any portion thereof is presented together with or separately
from such other information.
In addition, any notice or request that must be "in writing" or
"written" may be made by electronic mail.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Purchaser, the Seller and the Servicer
have caused their names to be signed hereto by their respective officers
thereunto duly authorized on the date first above written.
XXXXXXX XXXXX MORTGAGE COMPANY, a New
York limited partnership
(Purchaser)
By: XXXXXXX SACHS REAL ESTATE
FUNDING CORP., a New York
corporation, as General
Partner
By: ________________________________
Name:
Title:
AMERICAN HOME MORTGAGE CORP.
(Seller)
By: _________________________________
Name:
Title:
AMERICAN HOME MORTGAGE SERVICING, INC.
(Servicer)
By: _________________________________
Name:
Title:
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EXHIBIT 1
MORTGAGE LOAN DOCUMENTS
With respect to each Mortgage Loan, the Mortgage Loan Documents
shall consist of the following:
(a) the original Mortgage Note bearing all intervening
endorsements, endorsed "Pay to the order of _________, without recourse" and
signed in the name of the last endorsee (the "Last Endorsee") by an authorized
officer. To the extent that there is no room on the face of the Mortgage Notes
for endorsements, the endorsement may be contained on an allonge, if state law
so allows and the Custodian is so advised by the Seller that state law so
allows. If the Mortgage Loan was acquired by the Seller in a merger, the
endorsement must be by "[Last Endorsee], successor by merger to [name of
predecessor]". If the Mortgage Loan was acquired or originated by the Last
Endorsee while doing business under another name, the endorsement must be by
"[Last Endorsee], formerly known as [previous name]";
(b) the original of any guarantee executed in connection with the
Mortgage Note;
(c) with respect to Mortgage Loans that are not Co-op Loans, the
original Mortgage with evidence of recording thereon. With respect to any
Co-op Loan, an original or copy of the Security Agreement. If in connection
with any Mortgage Loan, the Seller cannot deliver or cause to be delivered the
original Mortgage with evidence of recording thereon on or prior to the
Closing Date because of a delay caused by the public recording office where
such Mortgage has been delivered for recordation or because such Mortgage has
been lost or because such public recording office retains the original
recorded Mortgage, the Seller shall deliver or cause to be delivered to the
Custodian, a photocopy of such Mortgage, together with (i) in the case of a
delay caused by the public recording office, an Officer's Certificate of the
Seller (or certified by the title company, escrow agent, or closing attorney)
stating that such Mortgage has been dispatched to the appropriate public
recording office for recordation and that the original recorded Mortgage or a
copy of such Mortgage certified by such public recording office to be a true
and complete copy of the original recorded Mortgage will be promptly delivered
to the Custodian upon receipt thereof by the Seller; or (ii) in the case of a
Mortgage where a public recording office retains the original recorded
Mortgage or in the case where a Mortgage is lost after recordation in a public
recording office, a copy of such Mortgage certified by such public recording
office to be a true and complete copy of the original recorded Mortgage;
(d) the originals of all assumption, modification, consolidation
or extension agreements, if any, with evidence of recording thereon;
(e) with respect to Mortgage Loans that are not Co-op Loans, the
original Assignment of Mortgage for each Mortgage Loan, in form and substance
acceptable for recording (except with respect to MERS Designated Loans). The
Assignment of Mortgage must be duly recorded only if recordation is either
necessary under applicable law or commonly required by private institutional
mortgage investors in the area where the Mortgaged Property is
EXH. 1-1
located or on direction of the Purchaser as provided in this Agreement. If the
Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to
the Purchaser. If the Assignment of Mortgage is not to be recorded, the
Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was
acquired by the Seller in a merger, the Assignment of Mortgage must be made by
"American Home Mortgage Corp., successor by merger to [name of predecessor]".
If the Mortgage Loan was acquired or originated by the Seller while doing
business under another name, the Assignment of Mortgage must be by "American
Home Mortgage Corp., formerly known as [previous name]";
(f) with respect to Mortgage Loans that are not Co-op Loans, the
originals of all intervening assignments of mortgage (if any) evidencing a
complete chain of assignment from the Seller to the Last Endorsee (or, in the
case of a MERS Designated Loan, MERS) with evidence of recording thereon, or
if any such intervening assignment has not been returned from the applicable
recording office or has been lost or if such public recording office retains
the original recorded assignments of mortgage, the Seller shall deliver or
cause to be delivered to the Custodian, a photocopy of such intervening
assignment, together with (i) in the case of a delay caused by the public
recording office, an Officer's Certificate of the Seller (or certified by the
title company, escrow agent, or closing attorney) stating that such
intervening assignment of mortgage has been dispatched to the appropriate
public recording office for recordation and that such original recorded
intervening assignment of mortgage or a copy of such intervening assignment of
mortgage certified by the appropriate public recording office to be a true and
complete copy of the original recorded intervening assignment of mortgage will
be promptly delivered to the Custodian upon receipt thereof by the Seller; or
(ii) in the case of an intervening assignment where a public recording office
retains the original recorded intervening assignment or in the case where an
intervening assignment is lost after recordation in a public recording office,
a copy of such intervening assignment certified by such public recording
office to be a true and complete copy of the original recorded intervening
assignment;
(g) with respect to Mortgage Loans that are not Co-op Loans, the
original mortgagee policy of title insurance or, in the event such original
title policy is unavailable, a certified true copy of the related policy
binder or commitment for title certified to be true and complete by the title
insurance company;
(h) the original or, if unavailable, a copy of any security
agreement, chattel mortgage or equivalent document executed in connection with
the Mortgage;
(i) with respect to any Co-op Loan: (i) a copy of the Co-op Lease
and the assignment of such Co-op Lease, with all intervening assignments
showing a complete chain of title and an assignment thereof by Seller; (ii)
the stock certificate together with an undated stock power relating to such
stock certificate executed in blank; (iii) the recognition agreement of the
interests of the Mortgagee with respect to the Co-op Loan by the residential
cooperative housing corporation, the stock of which was pledged by the related
Mortgagor to the originator of such Co-op Loan; and (iv) copies of the
financial statement filed by the originator as secured party and, if
applicable, a filed UCC-3 assignment of the subject security interest showing
a complete chain of title, together with an executed UCC-3 assignment of such
security interest by the Seller in a form sufficient for filing; and
EXH. 1-2
(j) if any of the above documents has been executed by a person
holding a power of attorney, an original or photocopy of such power certified
by the Seller to be a true and correct copy of the original.
In the event an Officer's Certificate of the Seller is delivered
to the Purchaser because of a delay caused by the public recording office in
returning any recorded document, the Seller shall deliver to the Purchaser,
within 90 days of the related Closing Date, an Officer's Certificate which
shall (i) identify the recorded document, (ii) state that the recorded
document has not been delivered to the Custodian due solely to a delay caused
by the public recording office, (iii) state the amount of time generally
required by the applicable recording office to record and return a document
submitted for recordation, and (iv) specify the date the applicable recorded
document will be delivered to the Custodian; provided, however, that any
recorded document shall in no event be delivered later than one year following
the related Closing Date. An extension of the date specified in clause (iv)
above may be requested from the Purchaser, which consent shall not be
unreasonably withheld.
EXH. 1-3
EXHIBIT 2
CONTENTS OF EACH MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall
include each of the following items, unless otherwise disclosed to the
Purchaser on the data tape, which shall be available for inspection by the
Purchaser and which shall be retained by the Servicer or delivered to the
Purchaser:
(a) Copies of the Mortgage Loan Documents.
(b) Residential loan application.
(c) Mortgage Loan closing statement.
(d) Verification of employment and income, if required.
(e) Verification of acceptable evidence of source and amount of
downpayment.
(f) Credit report on Mortgagor, in a form acceptable to either
Xxxxxx Xxx or Xxxxxxx Mac.
(g) Residential appraisal report.
(h) Photograph of the Mortgaged Property and photographs of
comparable properties.
(i) Survey of the Mortgaged Property, unless a survey is not
required by the title insurer.
(j) Copy of each instrument necessary to complete identification
of any exception set forth in the exception schedule in the title policy,
i.e., map or plat, restrictions, easements, home owner association
declarations, etc.
(k) Copies of all required disclosure statements.
(l) If applicable, termite report, structural engineer's report,
water potability and septic certification.
(m) Sales Contract, if applicable.
(n) Copy of the owner's title insurance policy or attorney's
opinion of title and abstract of title, as applicable.
(o) Evidence of electronic notation of the hazard insurance
policy, and, if required by law, evidence of the flood insurance policy.
EXH. 2-1
EXHIBIT 3
FORM OF INDEMNIFICATION AND CONTRIBUTION AGREEMENT
This INDEMNIFICATION AND CONTRIBUTION AGREEMENT ("Agreement"),
dated as of [_______], 200_, among [________________] (the "Depositor"), a
[______________] corporation (the "Depositor"), Xxxxxxx Sachs Mortgage
Company, a New York limited partnership ("Goldman") and [_____________], a
[_______________] (the "Seller").
W I T N E S S E T H:
WHEREAS, the Depositor is acting as depositor and registrant with
respect to the Prospectus, dated [________________], and the Prospectus
Supplement to the Prospectus, [________________] (the "Prospectus
Supplement"), relating to [________________] Certificates (the "Certificates")
to be issued pursuant to a Pooling and Servicing Agreement, dated as of
[________________] (the "P&S"), among the Depositor, as depositor,
[________________], as servicer (the "Servicer"), and [________________], as
trustee (the "Trustee");
WHEREAS, as an inducement to the Depositor to enter into the P&S,
and [____________________] (the "Underwriter[s]") to enter into the
Underwriting Agreement, dated [____________________] (the "Underwriting
Agreement"), between the Depositor and the Underwriter[s], and
[_______________] (the "Initial Purchaser[s]") to enter into the Certificate
Purchase Agreement, dated [____________] (the "Certificate Purchase
Agreement"), between the Depositor and the Initial Purchaser[s], Seller has
agreed to provide for indemnification and contribution on the terms and
conditions hereinafter set forth;
WHEREAS, Goldman purchased from Seller certain of the Mortgage
Loans underlying the Certificates (the "Mortgage Loans") pursuant to a
Mortgage Loan Sale and Servicing Agreement, dated as of December 1, 2005 (the
"Sale and Servicing Agreement"), by and between Goldman and Seller; and
WHEREAS, pursuant to Section 15 of the Sale and Servicing
Agreement, the Seller has agreed to indemnify the Depositor, Goldman, the
Underwriter[s], the Initial Purchaser[s] and their respective affiliates,
present and former directors, officers, employees and agents.
EXH. 3-1
NOW THEREFORE, in consideration of the agreements contained
herein, and other valuable consideration the receipt and sufficiency of which
are hereby acknowledged, the Depositor, Goldman and the Seller agree as
follows:
1. Indemnification and Contribution.
(a) The Seller agrees to indemnify and hold harmless the Depositor,
Goldman, the Underwriter[s], the Initial Purchaser[s] and their respective
affiliates and their respective present and former directors, officers,
employees and agents and each person, if any, who controls the Depositor,
Goldman, the Underwriter[s], the Initial Purchaser[s] or such affiliate within
the meaning of either Section 15 of the Securities Act of 1933, as amended
(the "1933 Act"), or Section 20 of the Securities Exchange Act of 1934, as
amended (the "1934 Act"), against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the 1933 Act, the 1934 Act or other federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based in whole or in part upon any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus Supplement, the
Offering Circular, ABS Informational and Computational Materials or the Free
Writing Prospectus or any omission or alleged omission to state in the
Prospectus Supplement, the Offering Circular, any ABS Informational and
Computational Materials, any Free Writing Prospectus or any amendment or
supplement thereto a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances in which they
were made, not misleading, or any such untrue statement or omission or alleged
untrue statement or alleged omission made in any amendment of or supplement to
the Prospectus Supplement, the Offering Circular, ABS Informational and
Computational Materials or the Free Writing Prospectus and agrees to reimburse
the Depositor, Goldman, the Underwriter[s], the Initial Purchaser[s] or such
affiliates and each such officer, director, employee, agent and controlling
person promptly upon demand for any legal or other expenses reasonably
incurred by any of them in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action
as such expenses are incurred; provided, however, that Seller shall be liable
in any such case only to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with the Seller Information. The foregoing indemnity
agreement is in addition to any liability which Seller may otherwise have to
the Depositor, Goldman, the Underwriter[s], the Initial Purchaser[s] their
affiliates or any such director, officer, employee, agent or controlling
person of the Depositor, Goldman, the Underwriter[s], the Initial Purchaser[s]
or their respective affiliates.
EXH. 3-2
As used herein:
"ABS Informational and Computational Material" means any written
communication as defined in Item 1101(a) of Regulation AB under the 1933 Act
and the 1934 Act, as may be amended from time to time.
"Free Writing Prospectus" means any written communication that
constitutes a "free writing prospectus," as defined in Rule 405 under the 1933
Act.
"Seller Information" means (A) all information in the Prospectus
Supplement, the Offering Circular, any ABS Informational and Computational
Materials or any Free Writing Prospectus or any amendment or supplement
thereto, (i) contained under the headings ["Transaction Overview--Parties--The
Responsible Party"] and ["The Mortgage Loan Pool--Underwriting Guidelines"]
and (ii) regarding the Mortgage Loans, the related Mortgagors and/or the
related Mortgaged Properties (but in the case of this clause (ii), only to the
extent any untrue statement or omission or alleged untrue statement or
omission arises from or is based upon errors or omissions in the information
concerning the Mortgage Loans, the related Mortgagors and/or the related
Mortgaged Properties, as applicable, provided to the Depositor or any
Affiliate thereof by or on behalf of the Seller or any Affiliate thereof), and
(B) [and static pool information provided by or on behalf of the Seller,
regarding mortgage loans originated or acquired by the Seller [and included in
the Prospectus Supplement, the Offering Circular, ABS Informational and
Computational Materials or the Free Writing Prospectus] [incorporated by
reference from the website located at ______________].
"Offering Circular" means the offering circular, dated
[__________] relating to the private offering of the [_______________]
Certificates.
(b) Promptly after receipt by any indemnified party under this
Section 1 of notice of any claim or the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
any indemnifying party under this Section 1, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 1 except to the extent it has
been materially prejudiced by such failure; and provided, further, however,
that the failure to notify any indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 1.
If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party,
to assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, except as
provided in the following paragraph, the indemnifying party shall not be
liable to the indemnified party under this Section 1 for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
EXH. 3-3
Any indemnified party shall have the right to employ separate
counsel in any such action and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such indemnified
party unless: (i) the employment thereof has been specifically authorized by
the indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that in the reasonable judgment of such counsel it is
necessary or appropriate for such indemnified party to employ separate counsel
due to actual or potential differing interests between the parties; or (iii)
the indemnifying party has failed to assume the defense of such action and
employ counsel reasonably satisfactory to the indemnified party, in which
case, if such indemnified party notifies the indemnifying party in writing
that it elects to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume the defense
of such action on behalf of such indemnified party, it being understood,
however, the indemnifying party shall not, in connection with any one such
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys (in addition to local counsel) at any time for all such indemnified
parties.
Each indemnified party, as a condition of the indemnity agreements
contained in this Section 1, shall cooperate with the indemnifying party in
the defense of any such action or claim. No indemnifying party shall be liable
for any settlement of any such action effected without its written consent
(which consent shall not be unreasonably withheld), but if settled with its
written consent or if there be a final judgment for the plaintiff in any such
action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for reasonable fees and expenses of counsel, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of
such settlement.
(c) If the indemnification provided for in this Section 1 is
unavailable to an indemnified party, then the indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages
or liabilities, in such proportion as is appropriate to reflect the relative
fault of the indemnifying party and the indemnified party, respectively, in
connection with the statements or omissions that result in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the indemnified party and indemnifying
party shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
such parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission and any other
equitable considerations.
XXX. 0-0
(x) The indemnity and contribution agreements contained in this
Section 1 and the representations and warranties set forth in Section 2 shall
remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by the Depositor,
Goldman, the Underwriter[s], the Initial Purchaser[s], their respective
affiliates, directors, officers, employees or agents or any person controlling
the Depositor, Goldman, the Underwriter[s], the Initial Purchaser[s] or any
such affiliate, and (iii) acceptance of and payment for any of the Offered
Certificates or Private Certificates.
2. Representations and Warranties. Seller represents and warrants
that:
(i) Seller is validly existing and in good standing under the laws
of its jurisdiction of formation or incorporation, as applicable, and
has full power and authority to own its assets and to transact the
business in which it is currently engaged. Seller is duly qualified to
do business and is in good standing in each jurisdiction in which the
character of the business transacted by it or any properties owned or
leased by it requires such qualification and in which the failure so to
qualify would have a material adverse effect on the business,
properties, assets or condition (financial or otherwise) of Seller;
(ii) Seller is not required to obtain the consent of any other
person or any consent, license, approval or authorization from, or
registration or declaration with, any governmental authority, bureau or
agency in connection with the execution, delivery, performance, validity
or enforceability of this Agreement;
(iii) the execution, delivery and performance of this Agreement by
Seller will not violate any provision of any existing law or regulation
or any order decree of any court applicable to Seller or any provision
of the charter or bylaws of Seller, or constitute a material breach of
any mortgage, indenture, contract or other agreement to which Seller is
a party or by which it may be bound;
(iv) (a) no proceeding of or before any court, tribunal or
governmental body is currently pending or, (b) to the knowledge of
Seller, threatened against Seller or any of its properties or with
respect to this Agreement or the Offered Certificates, in either case,
which would have a material adverse effect on the business, properties,
assets or condition (financial or otherwise) of Seller;
(v) Seller has full power and authority to make, execute, deliver
and perform this Agreement and all of the transactions contemplated
hereunder, and has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement. When executed and
delivered, this Agreement will constitute the legal, valid and binding
obligation of the Seller enforceable in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally, by the availability of
equitable remedies, and by limitations of public policy under applicable
securities law as to rights of indemnity and contribution thereunder;
and
(vi) this Agreement has been duly executed and delivered by
Seller.
EXH. 3-5
3. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to Seller, will be mailed, delivered
or faxed or emailed and confirmed by mail [______________________]; if sent to
Goldman, will be mailed, delivered or faxed or emailed and confirmed by mail
to Xxxxxxx Sachs Mortgage Company, 000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000 Xxxxx,
Xx. Xxxxxxxxxx, Xxxxxxx 00000, Attention: Xxxxxxx Xxxx, Tel: (000) 000-0000,
Fax: (000) 000-0000, with a copy to Xxxxxxx Sachs Mortgage Company, 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Tel: (000) 000-0000, Fax (000) 000-0000; if
to the Depositor, will be mailed, delivered or telegraphed and confirmed to
[____________________]; or if to the Underwriter[s], will be mailed, delivered
or telegraphed and confirmed to [_____________________]; or if to the Initial
Purchaser[s], will be mailed, delivered or telegraphed and confirmed to
[_____________________].
4. Miscellaneous. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York without giving
effect to the conflict of laws provisions thereof. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their successors
and assigns and the controlling persons referred to herein, and no other
person shall have any right or obligation hereunder. Neither this Agreement
nor any term hereof may be changed, waived, discharged or terminated orally,
but only by an instrument in writing signed by the party against whom
enforcement of the change, waiver, discharge or termination is sought. This
Agreement may be executed in counterparts, each of which when so executed and
delivered shall be considered an original, and all such counterparts shall
constitute one and the same instrument. Capitalized terms used but not defined
herein shall have the meanings provided in the P&S.
5. Submission To Jurisdiction; Waivers. The Seller hereby
irrevocably and unconditionally:
(A) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF
ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF
THE COURTS OF THE STATE OF NEW YORK, THE FEDERAL COURTS OF THE UNITED STATES
OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM
ANY THEREOF;
(B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN
SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY
SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT
COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR
ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET
FORTH HEREIN OR AT SUCH OTHER ADDRESS OF WHICH THE DEPOSITOR SHALL HAVE BEEN
NOTIFIED; AND
EXH. 3-6
(D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT TO XXX IN ANY OTHER JURISDICTION.
[SIGNATURE PAGE FOLLOWS]
EXH. 3-7
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective officers hereunto duly authorized,
this __th day of [_____________].
[DEPOSITOR]
By: ___________________________________
Name:
Title:
XXXXXXX SACHS MORTGAGE COMPANY
By: XXXXXXX XXXXX REAL ESTATE FUNDING
CORP., a New York corporation, as
General Partner
By: ___________________________________
Name:
Title:
AMERICAN HOME MORTGAGE CORP.
By: ___________________________________
Name:
Title:
EXH. 3-8
EXHIBIT 4
CUSTODIAL ACCOUNT CERTIFICATION
_________ __, 200__
American Home Mortgage Servicing, Inc. hereby certifies that it
has established the account described below as a Custodial Account pursuant to
Subsection 11.04 of the Mortgage Loan Sale and Servicing Agreement, dated as
of December 1, 2005, Fixed and Adjustable Rate Mortgage Loans.
Title of Account: "American Home Mortgage Servicing, Inc., in
trust for Xxxxxxx Sachs Mortgage Company as Purchaser of Mortgage
Loans and various Mortgagors."
Account Number: __________________________
Address of office or
branch of [_____________________]
at which the Custodial
Account is maintained: ______________________
______________________
______________________
AMERICAN HOME MORTGAGE
SERVICING, INC.
By: ______________________________
Name:
Title:
EXH. 4-1
EXHIBIT 5
CUSTODIAL ACCOUNT LETTER AGREEMENT
_________ __, 200__
To:
(the "Depository")
As Servicer under the Mortgage Loan Sale and Servicing Agreement,
dated as of December 1, 2005, we hereby authorize and request you to establish
an account, as a Custodial Account, to be designated as "American Home
Mortgage Servicing, Inc., in trust for Xxxxxxx Xxxxx Mortgage Company as
Purchaser of Mortgage Loans and various Mortgagors." All deposits in the
account shall be subject to withdrawal therefrom by order signed by the
Servicer. You may refuse any deposit which would result in violation of the
requirement that the account be fully insured as described below. This letter
is submitted to you in duplicate. Please execute and return one original to
us.
AMERICAN HOME MORTGAGE
SERVICING, INC., Servicer
By: _______________________
Name:
Title:
EXH. 5-1
The undersigned, as Depository, hereby certifies that the
above-described account has been established under Account Number
____________________ at the office of the Depository indicated above, and
agrees to honor withdrawals on such account as provided above. The account
will be insured by the Federal Deposit Insurance Corporation through the Bank
Insurance Fund ("BIF") or the Savings Association Insurance Fund ("SAIF").
[___________________________],
as Depository
By: _________________________
Name:
Title:
Date:
EXH. 5-2
EXHIBIT 6
ESCROW ACCOUNT CERTIFICATION
_________ __, 200__
American Home Mortgage Servicing, Inc. hereby certifies that it
has established the account described below as an Escrow Account pursuant to
Subsection 11.06 of the Mortgage Loan Sale and Servicing Agreement, dated as
of December 1, 2005, Fixed and Adjustable Rate Mortgage Loans.
Title of Account: "American Home Mortgage Servicing, Inc., in trust for
Xxxxxxx Sachs Mortgage Company as Purchaser of Mortgage Loans and
various Mortgagors."
Account Number: __________________________
Address of office or
branch of [_____________________]
at which the Escrow
Account is maintained: ______________________
______________________
______________________
AMERICAN HOME MORTGAGE
SERVICING, INC., Servicer
By: _______________________
Name:
Title:
EXH. 6-1
EXHIBIT 7
ESCROW ACCOUNT LETTER AGREEMENT
_________ __, 200__
To:
(the "Depository")
As Servicer under the Mortgage Loan Sale and Servicing Agreement,
dated as of December 1, 2005, we hereby authorize and request you to establish
an account, as an Escrow Account, to be designated as "American Home Mortgage
Servicing, Inc., in trust for Xxxxxxx Xxxxx Mortgage Company as Purchaser of
Mortgage Loans and various Mortgagors." All deposits in the account shall be
subject to withdrawal therefrom by order signed by the Servicer. You may
refuse any deposit which would result in violation of the requirement that the
account be fully insured as described below. This letter is submitted to you
in duplicate. Please execute and return one original to us.
AMERICAN HOME MORTGAGE
SERVICING, INC., Servicer
By: _______________________
Name:
Title:
EXH. 7-1
The undersigned, as Depository, hereby certifies that the
above-described account has been established under Account Number
____________________ at the office of the Depository indicated above, and
agrees to honor withdrawals on such account as provided above. The account
will be insured by the Federal Deposit Insurance Corporation through the Bank
Insurance Fund ("BIF") or the Savings Association Insurance Fund ("SAIF").
[____________________],
as Depository
By: ____________________
Name:
Title:
Date:
EXH. 7-2
EXHIBIT 8
UNDERWRITING GUIDELINES
[SELLER TO PROVIDE]
EXH. 8-1
EXHIBIT 9
REQUIRED FIELDS FOR MONTHLY REMITTANCE REPORT
Minimum fields required for the Monthly Remittance Report:
(p) investor;
(q) category;
(r) loan number;
(s) inventory loan number;
(t) contractual due date;
(u) interest rate;
(v) servicing fee rate;
(w) servicing payment;
(x) yield rate;
(y) principal and interest payment;
(z) beginning principal balance;
(aa) ending principal balance;
(bb) beginning scheduled balance;
(cc) scheduled principal payment;
(dd) scheduled interest payment;
(ee) remittance amount;
(ff) actual principal payments (actual principal payments that the
borrower made in the reporting period);
(gg) actual interest payments (actual interest payments that the
borrower made in the reporting period);
(hh) principal curtailments (principal curtailments applied to the loan
in the reporting period);
(ii) payoff date;
EXH. 9-1
(jj) borrower's name;
(kk) escrow balance;
(ll) corporate balance;
(mm) suspense balance;
(nn) A code indicating whether the borrower is in bankruptcy;
(oo) A code indicating whether the borrower is in foreclosure; and
(pp) A code indicating whether the borrower is in forbearance (or
loss mitigation).
EXH. 9-2
EXHIBIT 10
FORM OF SELLER'S OFFICER'S CERTIFICATE
I, ____________________, hereby certify that I am the duly elected
[Vice] President of ________________ [COMPANY], a [state] [federally]
chartered institution organized under the laws of the [state of ____________]
[United States] (the "Company") and further as follows:
1. Attached hereto as Exhibit 1 is a true, correct and complete
copy of the charter of the Company which is in full force and effect on
the date hereof and which has been in effect without amendment, waiver,
rescission or modification since ___________.
2. Attached hereto as Exhibit 2 is a true, correct and complete
copy of the bylaws of the Company which are in effect on the date hereof
and which have been in effect without amendment, waiver, rescission or
modification since
3. Attached hereto as Exhibit 3 is an original certificate of good
standing of the Company issued within ten days of the date hereof, and
no event has occurred since the date thereof which would impair such
standing.
4. Attached hereto as Exhibit 4 is a true, correct and complete
copy of the corporate resolutions of the Board of Directors of the
Company authorizing the Company to execute and deliver the Mortgage Loan
Sale and Servicing Agreement, dated as of December 1, 2005, by and
between Xxxxxxx Xxxxx Mortgage Company (the "Purchaser") and the Company
(the "Sale and Servicing Agreement") [and to endorse the Mortgage Notes
and execute the Assignments of Mortgages by original [or facsimile]
signature], and such resolutions are in effect on the date hereof and
have been in effect without amendment, waiver, rescission or
modification since ____________.
5. Either (i) no consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Company of or compliance by the Company
with the Sale and Servicing Agreement, the sale of the mortgage loans or
the consummation of the transactions contemplated by the agreements; or
(ii) any required consent, approval, authorization or order has been
obtained by the Company.
6. Neither the consummation of the transactions contemplated by,
nor the fulfillment of the terms of the Sale and Servicing Agreement
conflicts or will conflict with or results or will result in a breach of
or constitutes or will constitute a default under the charter or by-laws
of the Company, the terms of any indenture or other agreement or
instrument to which the Company is a party or by which it is bound or to
which it is subject, or any statute or order, rule, regulations, writ,
injunction or decree of any court, governmental authority or regulatory
body to which the Company is subject or by which it is bound.
EXH. 10-1
7. To the best of my knowledge, there is no action, suit,
proceeding or investigation pending or threatened against the Company
which, in my judgment, either in any one instance or in the aggregate,
may result in any material adverse change in the business, operations,
financial condition, properties or assets of the Company or in any
material impairment of the right or ability of the Company to carry on
its business substantially as now conducted or which would draw into
question the validity of the Sale and Servicing Agreement, or the
mortgage loans or of any action taken or to be taken in connection with
the transactions contemplated hereby, or which would be likely to impair
materially the ability of the Company to perform under the terms of the
Sale and Servicing Agreement.
8. Each person listed on Exhibit 5 attached hereto who, as an
officer or representative of the Company, signed (a) the Sale and
Servicing Agreement and (b) any other document delivered or on the date
hereof in connection with any purchase described in the agreements set
forth above was, at the respective times of such signing and delivery,
and is now, a duly elected or appointed, qualified and acting officer or
representative of the Company, who holds the office set forth opposite
his or her name on Exhibit 5, and the signatures of such persons
appearing on such documents are their genuine signatures.
9. The Company is duly authorized to engage in the transactions
described and contemplated in the Sale and Servicing Agreement.
EXH. 10-2
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the
seal of the Company.
Dated:
---------------------------
By:
---------------------------
Name:
---------------------------
[Seal] Title: [Vice] President
I, ________________________, an [Assistant] Secretary of
______________[COMPANY], hereby certify that ____________ is the duly elected,
qualified and acting [Vice] President of the Company and that the signature
appearing above is [her] [his] genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated:
---------------------------
By:
---------------------------
Name:
---------------------------
Title:
---------------------------
[Assistant] Secretary
EXH. 10-3
EXHIBIT 5 to
Company's Officer's Certificate
NAME TITLE SIGNATURE
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EXH. 10-4
EXHIBIT 11
FORM OF OPINION OF COUNSEL TO SELLER
(date)
Xxxxxxx Sachs Mortgage Company
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000 Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Dear Sirs:
You have requested [our] [my] opinion, as [Assistant] General
Counsel to American Home Mortgage Corp. (the "Company"), with respect to
certain matters in connection with the sale by the Company of the Mortgage
Loans pursuant to that certain Mortgage Loan Sale and Servicing Agreement, by
and between the Company and Xxxxxxx Xxxxx Mortgage Company (the "Purchaser"),
dated as of December 1, 2005, (the "Agreement") which sale is in the form of
whole loans. Capitalized terms not otherwise defined herein have the meanings
set forth in the Agreement.
[We] [I] have examined the following documents:
1.________the Agreement;
2.________the form of Assignment of Mortgage;
3.________the form of endorsement of the Mortgage Notes; and
4.________such other documents, records and papers as we have
deemed necessary and relevant as a basis for this opinion.
To the extent [we] [I] have deemed necessary and proper, [we] [I]
have relied upon the representations and warranties of the Company contained
in the Agreement. [We] [I] have assumed the authenticity of all documents
submitted to [us] [me] as originals, the genuineness of all signatures, the
legal capacity of natural persons and the conformity to the originals of all
documents.
Based upon the foregoing, it is [our] [my] opinion that:
1. The Company is a [type of entity] duly organized, validly
existing and in good standing under the laws of the [United States] and is
qualified to transact business in, and is in good standing under, the laws of
[the state of incorporation/formation].
EXH. 11-1
2. The Company has the power to engage in the transactions
contemplated by the Agreement and all requisite power, authority and legal
right to execute and deliver the Agreement and to perform and observe the
terms and conditions of the Agreement.
3. The Agreement has been duly authorized, executed and delivered
by the Company, and is a legal, valid and binding agreement enforceable in
accordance with its respective terms against the Company, subject to
bankruptcy laws and other similar laws of general application affecting rights
of creditors and subject to the application of the rules of equity, including
those respecting the availability of specific performance, none of which will
materially interfere with the realization of the benefits provided thereunder
or with the Purchaser's ownership of the Mortgage Loans.
4. The Company has been duly authorized to allow any of its
officers to execute any and all documents by original signature in order to
complete the transactions contemplated by the Agreement.
5. The Company has been duly authorized to allow any of its
officers to execute by original [or facsimile] signature the endorsements to
the Mortgage Notes and the Assignments of Mortgages, and the original [or
facsimile] signature of the officer of the Company executing the endorsements
to the Mortgage Notes and the Assignments of Mortgages represents the legal
and valid signature of said officer of the Company.
6. Either (i) no consent, approval, authorization or order of any
court or governmental agency or body is required for the execution, delivery
and performance by the Company of or compliance by the Company with the
Agreement and the sale of the Mortgage Loans by the Company or the
consummation of the transactions contemplated by the Agreement or (ii) any
required consent, approval, authorization or order has been obtained by the
Company.
7. Neither the consummation of the transactions contemplated by,
nor the fulfillment of the terms of, the Agreement conflicts or will conflict
with or results or will result in a breach of or constitutes or will
constitute a default under the charter or by-laws of the Company, the terms of
any indenture or other agreement or instrument to which the Company is a party
or by which it is bound or to which it is subject, or violates any statute or
order, rule, regulations, writ, injunction or decree of any court,
governmental authority or regulatory body to which the Company is subject or
by which it is bound.
8. There is no action, suit, proceeding or investigation pending
or, to the best of [our] [my] knowledge, threatened against the Company which,
in [our] [my] judgment, either in any one instance or in the aggregate, may
result in any material adverse change in the business, operations, financial
condition, properties or assets of the Company or in any material impairment
of the right or ability of the Company to carry on its business substantially
as now conducted or in any material liability on the part of the Company or
which would draw into question the validity of the Agreement or the Mortgage
Loans or of any action taken or to be taken in connection with the
transactions contemplated thereby, or which would be likely to impair
materially the ability of the Company to perform under the terms of the
Agreement.
XXX. 00-0
0. The sale of each Mortgage Note and Mortgage as and in the
manner contemplated by the Agreement is sufficient to fully transfer to the
Purchaser all right, title and interest of the Company thereto as noteholder
and mortgagee.
10. The Mortgages have been duly assigned and the Mortgage Notes
have been duly endorsed as provided in the Agreement. The Assignments of
Mortgage are in recordable form, except for the insertion of the name of the
assignee, and upon the name of the assignee being inserted, are acceptable for
recording under the laws of the state where each related Mortgaged Property is
located. The endorsement of the Mortgage Notes, the delivery to the Purchaser,
or its designee, of the Assignments of Mortgage, and the delivery of the
original endorsed Mortgage Notes to the Purchaser, or its designee, are
sufficient to permit the Purchaser to avail itself of all protection available
under applicable law against the claims of any present or future creditors of
the Company, and are sufficient to prevent any other sale, transfer,
assignment, pledge or hypothecation of the Mortgages and the Mortgage Notes by
the Company from being enforceable.
This opinion is given to you for your sole benefit, and no other
person or entity is entitled to rely hereon except that the purchaser or
purchasers to which you initially and directly resell the Mortgage Loans may
rely on this opinion as if it were addressed to them as of the date of this
opinion.
Very truly yours,
---------------------------------------
[Name]
---------------------------------------
[Assistant] General Counsel
EXH. 11-3
EXHIBIT 12
FORM OF SECURITY RELEASE CERTIFICATION
___________________, _____
________________________
________________________
________________________
Attention: ___________________________
___________________________
Re: Notice of Sale and Release of Collateral
Dear Sirs:
This letter serves as notice that AMERICAN HOME MORTGAGE CORP., a
corporation organized pursuant to the laws of the state of New York (the
"Company") has committed to sell to Xxxxxxx Sachs Mortgage Company under a
Mortgage Loan Sale and Servicing Agreement, dated as of December 1, 2005,
certain mortgage loans originated by the Company. The Company warrants that
the mortgage loans to be sold to Xxxxxxx Xxxxx Mortgage Company are in
addition to and beyond any collateral required to secure advances made by you
to the Company.
The Company acknowledges that the mortgage loans to be sold to
Xxxxxxx Sachs Mortgage Company shall not be used as additional or substitute
collateral for advances made by [____________]. Xxxxxxx Xxxxx Mortgage Company
understands that the balance of the Company's mortgage loan portfolio may be
used as collateral or additional collateral for advances made by
[___________], and confirms that it has no interest therein.
EXH. 12-1
Execution of this letter by [___________] shall constitute a full
and complete release of any security interest, claim, or lien which
[___________] may have against the mortgage loans to be sold to Xxxxxxx Sachs
Mortgage Company.
Very truly yours,
______________________________
By:___________________________
Name:_________________________
Title:________________________
Date:_________________________
Acknowledged and approved:
__________________________
By:____________________________
Name:__________________________
Title:_________________________
Date:__________________________
EXH. 12-2
EXHIBIT 13
FORM OF SECURITY RELEASE CERTIFICATION
I. Release of Security Interest
The financial institution named below hereby relinquishes any and
all right, title, interest, lien or claim of any kind it may have in all
mortgage loans described on the attached Schedule A (the "Mortgage Loans") to
be purchased by Xxxxxxx Xxxxx Mortgage Company from the company named on the
next page pursuant to that certain Mortgage Loan Sale and Servicing Agreement,
dated as of December 1, 2005 and certifies that all notes, mortgages,
assignments and other documents in its possession relating to such Mortgage
Loans have been delivered and released to the Company or its designees, as of
the date and time of the sale of such Mortgage Loans to Xxxxxxx Sachs Mortgage
Company. Such release shall be effective automatically without any further
action by any party upon payment in one or more installments, in immediately
available funds, of $_____________, in accordance with the wire instructions
set forth below.
Name, Address and Wire Instructions of Financial Institution
________________________________
(Name)
________________________________
(Address)
________________________________
________________________________
________________________________
By:_____________________________
EXH. 13-1
II. Certification of Release
The Company named below hereby certifies to Xxxxxxx Xxxxx Mortgage
Company that, as of the date and time of the sale of the above-mentioned
Mortgage Loans to Xxxxxxx Sachs Mortgage Company the security interests in the
Mortgage Loans released by the above-named financial institution comprise all
security interests relating to or affecting any and all such Mortgage Loans.
The Company warrants that, as of such time, there are and will be no other
security interests affecting any or all of such Mortgage Loans.
___________________________
By:___________________________
Title:________________________
Date:_________________________
EXH. 13-2
EXHIBIT 14
FORM OF ASSIGNMENT AND CONVEYANCE
On this ___ day of __________, ____, American Home Mortgage Corp.
("Seller"), as (i) the Seller under that certain Purchase Price and Terms
Agreement, dated as of ___________, _____ (the "PPTA"), (ii) the Seller under
that certain Mortgage Loan Sale and Servicing Agreement, dated as of December
1, 2005 (the "Sale and Servicing Agreement") and, together with the PPTA, the
"Agreements") does hereby sell, transfer, assign, set over and convey to
Xxxxxxx Xxxxx Mortgage Company ("Purchaser") as the Purchaser under the
Agreements, without recourse, but subject to the terms of the Agreements, all
right, title and interest of, in and to the Mortgage Loans listed on the
Mortgage Loan Schedule attached hereto as Exhibit A (the "Mortgage Loans"),
together with the Mortgage Files and all rights and obligations arising under
the documents contained therein. Each Mortgage Loan subject to the Agreements
was underwritten in accordance with, and conforms to, the Underwriting
Guidelines attached hereto as Exhibit C. Pursuant to Section 6 of the Sale and
Servicing Agreement, the Seller has delivered to the Custodian the documents
for each Mortgage Loan to be purchased as set forth in the Custodial
Agreement. The contents of each Servicing File required to be retained by the
Servicer to service the Mortgage Loans pursuant to the Sale and Servicing
Agreement and thus not delivered to the Purchaser are and shall be held in
trust by the Servicer in its capacity as Servicer for the benefit of the
Purchaser as the owner thereof. The Servicer's possession of any portion of
the Servicing File is at the will of the Purchaser for the sole purpose of
facilitating servicing of the related Mortgage Loan pursuant to the Sale and
Servicing Agreement, and such retention and possession by the Servicer shall
be in a custodial capacity only. The ownership of each Mortgage Note, Mortgage
and the contents of the Mortgage File and Servicing File is vested in the
Purchaser and the ownership of all records and documents with respect to the
related Mortgage Loan prepared by or which come into the possession of the
Seller or the Servicer shall immediately vest in the Purchaser and shall be
retained and maintained, in trust, by the Servicer at the will of the
Purchaser in such custodial capacity only.
The Mortgage Loan Package characteristics of the Mortgage Loans
subject hereto are set forth on Exhibit B hereto.
In accordance with Section 6 of the Sale and Servicing Agreement,
the Purchaser accepts the Mortgage Loans listed on Exhibit A attached hereto.
Notwithstanding the foregoing the Purchaser does not waive any rights or
remedies it may have under the Agreements.
Capitalized terms used herein and not otherwise defined shall have
the meanings set forth in the Sale and Servicing Agreement.
[Signature Page Follows]
XXX. 00-0
AMERICAN HOME MORTGAGE CORP.
By: __________________________
Name:
Title:
Accepted and Agreed:
XXXXXXX SACHS MORTGAGE COMPANY
By: XXXXXXX XXXXX REAL ESTATE FUNDING CORP.,
a New York corporation, as General Partner
By:________________________
Name:
Title:
EXH. 14-2
EXHIBIT A
TO ASSIGNMENT AND CONVEYANCE AGREEMENT
THE MORTGAGE LOANS
XXX. 00-0
XXXXXXX X
TO ASSIGNMENT AND CONVEYANCE AGREEMENT
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE POOL
CHARACTERISTICS OF EACH MORTGAGE LOAN PACKAGE
Pool Characteristics of the Mortgage Loan Package as delivered on
the related Closing Date:
No Mortgage Loan has: (1) an outstanding principal balance less
than $_________; (2) an origination date earlier than _ months prior to the
related Cut-off Date; (3) an LTV of greater than _____%; (4) a FICO Score of
less than ___; or (5) a debt-to-income ratio of more than __%. Each Mortgage
Loan has a Mortgage Interest Rate of at least ___% per annum and an
outstanding principal balance of less than $_________. Each Adjustable Rate
Mortgage Loan has an Index of [_______].
EXH. 14-4
EXHIBIT C
TO ASSIGNMENT AND CONVEYANCE AGREEMENT
UNDERWRITING GUIDELINES
EXH. 14-5
EXHIBIT 15
FORM OF ASSIGNMENT AND RECOGNITION AGREEMENT
THIS ASSIGNMENT AND RECOGNITION AGREEMENT, dated [____________ __,
20__] ("Agreement"), among Xxxxxxx Sachs Mortgage Company ("Assignor"),
[____________________] ("Assignee"), AMERICAN HOME MORTGAGE CORP. (the
"Company") and AMERICAN HOME MORTGAGE SERVICING, INC. (the "Servicer"):
For and in consideration of the sum of TEN DOLLARS ($10.00) and
other valuable consideration the receipt and sufficiency of which hereby are
acknowledged, and of the mutual covenants herein contained, the parties hereto
hereby agree as follows:
Assignment and Conveyance
1. The Assignor hereby conveys, sells, grants, transfers and
assigns to the Assignee all of the right, title and interest of the Assignor,
as purchaser, in, to and under (a) those certain Mortgage Loans listed on the
schedule (the "Mortgage Loan Schedule") attached hereto as Exhibit A (the
"Mortgage Loans") and (b) except as described below, that certain Mortgage
Loan Sale and Servicing Agreement (the "Sale and Servicing Agreement"), dated
as of December 1, 2005, by and among the Assignor, as purchaser (the
"Purchaser"), the Company, as seller and the Servicer, as servicer, solely
insofar as the Sale and Servicing Agreement relates to the Mortgage Loans.
The Assignor specifically reserves and does not assign to the
Assignee hereunder any and all right, title and interest in, to and under and
any obligations of the Assignor with respect to any mortgage loans subject to
the Sale and Servicing Agreement which are not the Mortgage Loans set forth on
the Mortgage Loan Schedule and are not the subject of this Agreement.
Recognition of the Company and the Servicer
2. From and after the date hereof (the "Securitization Closing
Date"), each of the Company and the Servicer shall and does hereby recognize
that the Assignee will transfer the Mortgage Loans and assign its rights under
the Sale and Servicing Agreement (solely to the extent set forth herein) and
this Agreement to [__________________] (the "Trust") created pursuant to a
Pooling and Servicing Agreement, dated as of [__________, 200_] (the "Pooling
Agreement"), among the Assignee, the Assignor, [___________________], as
trustee (including its successors in interest and any successor trustees under
the Pooling Agreement, the "Trustee"), [____________________], as master
servicer (including its successors in interest and any successor servicer
under the Pooling Agreement, the "Master Servicer"). Each of the Company and
the Servicer hereby acknowledges and agrees that from and after the date
hereof (i) the Trust will be the owner of the Mortgage Loans, (ii) each of the
Company and the Servicer shall look solely to the Trust for performance of any
obligations of the Assignor insofar as they relate to the Mortgage Loans,
(iii) the Trust (including the Trustee and the Master Servicer acting on the
Trust's behalf) shall have all the rights and remedies available to the
Assignor, insofar as they
EXH. 15-1
relate to the Mortgage Loans, under the Sale and Servicing Agreement,
including, without limitation, the enforcement of the document delivery
requirements set forth in Section 6 of the Sale and Servicing Agreement, and
shall be entitled to enforce all of the obligations of the Company or the
Servicer thereunder insofar as they relate to the Mortgage Loans, and (iv) all
references to the Purchaser, the Custodian or the Bailee under the Sale and
Servicing Agreement insofar as they relate to the Mortgage Loans, shall be
deemed to refer to the Trust (including the Trustee and the Master Servicer
acting on the Trust's behalf). Neither the Company nor the Servicer nor the
Assignor shall amend or agree to amend, modify, waiver, or otherwise alter any
of the terms or provisions of the Sale and Servicing Agreement which
amendment, modification, waiver or other alteration would in any way affect
the Mortgage Loans or the Company's or the Servicer's performance under the
Sale and Servicing Agreement with respect to the Mortgage Loans without the
prior written consent of the Trustee.
Representations and Warranties of the Company and the Servicer
3. Each of the Company and the Servicer warrants and represents to
the Assignor, the Assignee and the Trust as of the date hereof that:
(a) Each of the Company and the Servicer is duly organized,
validly existing and in good standing under the laws of the jurisdiction
of its incorporation;
(b) Each of the Company and the Servicer has full power and
authority to execute, deliver and perform its obligations under this
Agreement and has full power and authority to perform its obligations
under the Sale and Servicing Agreement. The execution by the Company and
the Servicer of this Agreement is in the ordinary course of the
Company's and the Servicer's business and will not conflict with, or
result in a breach of, any of the terms, conditions or provisions of the
Company's or the Servicer's charter or bylaws or any legal restriction,
or any material agreement or instrument to which the Company or the
Servicer is now a party or by which it is bound, or result in the
violation of any law, rule, regulation, order, judgment or decree to
which the Company or the Servicer or their property is subject. The
execution, delivery and performance by the Company and the Servicer of
this Agreement have been duly authorized by all necessary corporate
action on part of the Company and the Servicer. This Agreement has been
duly executed and delivered by the Company and the Servicer, and, upon
the due authorization, execution and delivery by the Assignor and the
Assignee, will constitute the valid and legally binding obligation of
the Company and the Servicer, enforceable against the Company and the
Servicer in accordance with its terms except as enforceability may be
limited by bankruptcy, reorganization, insolvency, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally, and by general principles of equity regardless of whether
enforceability is considered in a proceeding in equity or at law;
(c) No consent, approval, order or authorization of, or
declaration, filing or registration with, any governmental entity is
required to be obtained or made by the Company or the Servicer in
connection with the execution, delivery or performance by the Company
and the Servicer of this Agreement; and
XXX. 00-0
(x) There is no action, suit, proceeding or investigation pending
or, to the best of the Company's and the Servicer's knowledge,
threatened against the Company or the Servicer, before any court,
administrative agency or other tribunal, which would draw into question
the validity of this Agreement or the Sale and Servicing Agreement, or
which, either in any one instance or in the aggregate, would result in
any material adverse change in the ability of the Company or the
Servicer to perform its obligations under this Agreement or the Sale and
Servicing Agreement, and the Company and the Servicer are solvent.
4. Pursuant to Section 15 of the Sale and Servicing Agreement,
each of the Company and the Servicer hereby represents and warrants, for the
benefit of the Assignor, the Assignee and the Trust, that the representations
and warranties set forth in Section 7.01 and Section 7.02 of the Sale and
Servicing Agreement are true and correct as of the date hereof as if such
representations and warranties were made on the date hereof unless otherwise
specifically stated in such representations and warranties.
Remedies for Breach of Representations and Warranties
5. Each of the Company and the Servicer hereby acknowledges and
agrees that the remedies available to the Assignor, the Assignee and the Trust
(including the Trustee and the Master Servicer acting on the Trust's behalf)
in connection with any breach of the representations and warranties made by
the Company or the Servicer set forth in Sections 3 and 4 hereof shall be as
set forth in Subsection 7.03 of the Sale and Servicing Agreement as if they
were set forth herein (including without limitation the repurchase and
indemnity obligations set forth therein).
Miscellaneous
6. This Agreement shall be construed in accordance with the laws
of the State of New York, without regard to conflicts of law principles, and
the obligations, rights and remedies of the parties hereunder shall be
determined in accordance with such laws.
7. No term or provision of this Agreement may be waived or
modified unless such waiver or modification is in writing and signed by the
party against whom such waiver or modification is sought to be enforced, with
the prior written consent of the Trustee.
8. This Agreement shall inure to the benefit of (i) the successors
and assigns of the parties hereto and (ii) the Trust (including the Trustee
and the Master Servicer acting on the Trust's behalf). Any entity into which
Assignor, Assignee, Company or Servicer may be merged or consolidated shall,
without the requirement for any further writing, be deemed Assignor, Assignee,
Company or Servicer, respectively, hereunder.
9. Each of this Agreement and the Sale and Servicing Agreement
shall survive the conveyance of the Mortgage Loans and the assignment of the
Sale and Servicing Agreement (to the extent assigned hereunder) by Assignor to
Assignee and by Assignee to the Trust and nothing contained herein shall
supersede or amend the terms of the Sale and Servicing Agreement.
XXX. 00-0
00. This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original and all such
counterparts shall constitute one and the same instrument.
11. In the event that any provision of this Agreement conflicts
with any provision of the Sale and Servicing Agreement with respect to the
Mortgage Loans, the terms of this Agreement shall control.
12. Capitalized terms used in this Agreement (including the
exhibits hereto) but not defined in this Agreement shall have the meanings
given to such terms in the Sale and Servicing Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
AMERICAN HOME MORTGAGE CORP.
By: __________________________
Name:________________________
Its:_________________________
AMERICAN HOME MORTGAGE SERVICING,
INC.
By: __________________________
Name:________________________
Its:
XXXXXXX XXXXX MORTGAGE COMPANY
BY: XXXXXXX SACHS REAL ESTATE
FUNDING CORP., a New York
Corporation, as General
Partner
By: __________________________
Name:________________________
Its:_________________________
XXX. 00-0
[ASSIGNEE]
By: __________________________
Name:________________________
Its:_________________________
EXH. 15-5
EXHIBIT 16
FORM OF ANNUAL CERTIFICATION
Re: The [ ] agreement dated as of [ ], 200[ ] (the "Agreement"), among
[IDENTIFY PARTIES]
I, ________________________________, the _______________________
of [NAME OF COMPANY], certify to [the Purchaser], [the Depositor], and the
[Master Servicer] [Securities Administrator] [Trustee], and their officers,
with the knowledge and intent that they will rely upon this certification,
that:
1. I have reviewed the servicer compliance statement of the
Company provided in accordance with Item 1123 of Regulation AB (the
"Compliance Statement"), the report on assessment of the Company's
compliance with the servicing criteria set forth in Item 1122(d) of
Regulation AB (the "Servicing Criteria"), provided in accordance with
Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934, as
amended (the "Exchange Act") and Item 1122 of Regulation AB (the
"Servicing Assessment"), the registered public accounting firm's
attestation report provided in accordance with Rules 13a-18 and 15d-18
under the Exchange Act and Section 1122(b) of Regulation AB (the
"Attestation Report"), and all servicing reports, officer's certificates
and other information relating to the servicing of the Mortgage Loans by
the Company during 200[ ] that were delivered by the Company to the
[Depositor] [Master Servicer] [Securities Administrator] [Trustee]
pursuant to the Agreement (collectively, the "Company Servicing
Information");
2. Based on my knowledge, the Company Servicing Information, taken
as a whole, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in
the light of the circumstances under which such statements were made,
not misleading with respect to the period of time covered by the Company
Servicing Information;
3. Based on my knowledge, all of the Company Servicing Information
required to be provided by the Company under the Agreement has been
provided to the [Depositor] [Master Servicer] [Securities Administrator]
[Trustee];
4. I am responsible for reviewing the activities performed by the
Company as servicer under the Agreement, and based on my knowledge and
the compliance review conducted in preparing the Compliance Statement
and except as disclosed in the Compliance Statement, the Servicing
Assessment or the Attestation Report, the Company has fulfilled its
obligations under the Agreement in all material respects; and
5. The Compliance Statement required to be delivered by the
Company pursuant to the Agreement, and the Servicing Assessment and
Attestation Report required to be provided by the Company and by any
Subservicer or Subcontractor pursuant to the Agreement, have been
provided to the [Depositor] [Master Servicer]. Any material instances of
noncompliance described in such reports have been disclosed to the
XXX. 00-0
[Xxxxxxxxx] [Master Servicer]. Any material instance of noncompliance
with the Servicing Criteria has been disclosed in such reports.
Date:_____________________________
By: _____________________________
Name:
Title:
XXX. 00-0
XXXXXXX 00
XXXXXXXXX XXXXXXXX TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Company]
[Name of Subservicer] shall address, at a minimum, the criteria identified as
below as "Applicable Servicing Criteria":
----------------------------------------------------------------------------------------------
Applicable
Servicing Criteria Servicing Criteria
----------------------------------------------------------------------------------------------
Reference Criteria
----------------------------------------------------------------------------------------------
General Servicing Considerations
----------------------------------------------------------------------------------------------
1122(d)(1)(i) Policies and procedures are instituted to
monitor any performance or other triggers
and events of default in accordance with
the transaction agreements.
----------------------------------------------------------------------------------------------
1122(d)(1)(ii) If any material servicing activities are
outsourced to third parties, policies and
procedures are instituted to monitor the
third party's performance and compliance
with such servicing activities.
----------------------------------------------------------------------------------------------
1122(d)(1)(iii) Any requirements in the transaction
agreements to maintain a back-up servicer
for the mortgage loans are maintained.
----------------------------------------------------------------------------------------------
1122(d)(1)(iv) A fidelity bond and errors and omissions
policy is in effect on the party
participating in the servicing function
throughout the reporting period in the
amount of coverage required by and
otherwise in accordance with the terms of
the transaction agreements.
----------------------------------------------------------------------------------------------
Cash Collection and Administration
----------------------------------------------------------------------------------------------
1122(d)(2)(i) Payments on mortgage loans are deposited
into the appropriate custodial bank
accounts and related bank clearing accounts
no more than two business days following
receipt, or such other number of days
specified in the transaction agreements.
----------------------------------------------------------------------------------------------
1122(d)(2)(ii) Disbursements made via wire transfer on
behalf of an obligor or to an investor are
made only by authorized personnel.
----------------------------------------------------------------------------------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding
collections, cash flows or distributions,
and any interest or other fees charged for
such advances, are made, reviewed and
approved as specified in the transaction
agreements.
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
Applicable
Servicing Criteria Servicing Criteria
----------------------------------------------------------------------------------------------
Reference Criteria
----------------------------------------------------------------------------------------------
General Servicing Considerations
----------------------------------------------------------------------------------------------
1122(d)(2)(iv) The related accounts for the transaction,
such as cash reserve accounts or accounts
established as a form of
overcollateralization, are separately
maintained (e.g., with respect to
commingling of cash) as set forth in the
transaction agreements.
----------------------------------------------------------------------------------------------
1122(d)(2)(v) Each custodial account is maintained at a
federally insured depository institution as
set forth in the transaction agreements.
For purposes of this criterion, "federally
insured depository institution" with
respect to a foreign financial institution
means a foreign financial institution that
meets the requirements of Rule 13k-1(b)(1)
of the Securities Exchange Act.
----------------------------------------------------------------------------------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to
prevent unauthorized access.
----------------------------------------------------------------------------------------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly
basis for all asset-backed securities
related bank accounts, including custodial
accounts and related bank clearing
accounts. These reconciliations are (A)
mathematically accurate; (B) prepared
within 30 calendar days after the bank
statement cutoff date, or such other number
of days specified in the transaction
agreements; (C) reviewed and approved by
someone other than the person who prepared
the reconciliation; and (D) contain
explanations for reconciling items. These
reconciling items are resolved within 90
calendar days of their original
identification, or such other number of
days specified in the transaction
agreements.
----------------------------------------------------------------------------------------------
Investor Remittances and Reporting
----------------------------------------------------------------------------------------------
1122(d)(3)(i) Reports to investors, including those to be
filed with the Commission, are maintained
in accordance with the transaction
agreements and applicable Commission
requirements. Specifically, such reports
(A) are prepared in accordance with
timeframes and other terms set forth in the
transaction agreements; (B) provide
information calculated in accordance with
the terms specified in the transaction
agreements; (C) are filed with the
Commission as required by its rules and
regulations; and (D) agree with investors'
or the trustee's records as to the total
unpaid principal balance and number of
mortgage loans serviced by the Servicer.
----------------------------------------------------------------------------------------------
EXH. 17-2
----------------------------------------------------------------------------------------------
Applicable
Servicing Criteria Servicing Criteria
----------------------------------------------------------------------------------------------
Reference Criteria
----------------------------------------------------------------------------------------------
1122(d)(3)(ii) Amounts due to investors are allocated and
remitted in accordance with timeframes,
distribution priority and other terms set
forth in the transaction agreements.
----------------------------------------------------------------------------------------------
1122(d)(3)(iii) Disbursements made to an investor are
posted within two business days to the
Servicer's investor records, or such other
number of days specified in the transaction
agreements.
----------------------------------------------------------------------------------------------
1122(d)(3)(iv) Amounts remitted to investors per the
investor reports agree with cancelled
checks, or other form of payment, or
custodial bank statements.
----------------------------------------------------------------------------------------------
Pool Asset Administration
----------------------------------------------------------------------------------------------
1122(d)(4)(i) Collateral or security on mortgage loans is
maintained as required by the transaction
agreements or related mortgage loan
documents.
----------------------------------------------------------------------------------------------
1122(d)(4)(ii) Mortgage loan and related documents are
safeguarded as required by the transaction
agreements
----------------------------------------------------------------------------------------------
1122(d)(4)(iii) Any additions, removals or substitutions to
the asset pool are made, reviewed and
approved in accordance with any conditions
or requirements in the transaction
agreements.
----------------------------------------------------------------------------------------------
1122(d)(4)(iv) Payments on mortgage loans, including any
payoffs, made in accordance with the
related mortgage loan documents are posted
to the Servicer's obligor records
maintained no more than two business days
after receipt, or such other number of days
specified in the transaction agreements,
and allocated to principal, interest or
other items (e.g., escrow) in accordance
with the related mortgage loan documents.
----------------------------------------------------------------------------------------------
1122(d)(4)(v) The Servicer's records regarding the
mortgage loans agree with the Servicer's
records with respect to an obligor's unpaid
principal balance.
----------------------------------------------------------------------------------------------
1122(d)(4)(vi) Changes with respect to the terms or status
of an obligor's mortgage loans (e.g., loan
modifications or re-agings) are made,
reviewed and approved by authorized
personnel in accordance with the
transaction agreements and related pool
asset documents.
----------------------------------------------------------------------------------------------
EXH. 17-3
----------------------------------------------------------------------------------------------
Applicable
Servicing Criteria Servicing Criteria
----------------------------------------------------------------------------------------------
Reference Criteria
----------------------------------------------------------------------------------------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g.,
forbearance plans, modifications and deeds
in lieu of foreclosure, foreclosures and
repossessions, as applicable) are
initiated, conducted and concluded in
accordance with the timeframes or other
requirements established by the transaction
agreements.
----------------------------------------------------------------------------------------------
1122(d)(4)(viii) Records documenting collection efforts are
maintained during the period a mortgage
loan is delinquent in accordance with the
transaction agreements. Such records are
maintained on at least a monthly basis, or
such other period specified in the
transaction agreements, and describe the
entity's activities in monitoring
delinquent mortgage loans including, for
example, phone calls, letters and payment
rescheduling plans in cases where
delinquency is deemed temporary (e.g.,
illness or unemployment).
----------------------------------------------------------------------------------------------
1122(d)(4)(ix) Adjustments to interest rates or rates of
return for mortgage loans with variable
rates are computed based on the related
mortgage loan documents.
----------------------------------------------------------------------------------------------
1122(d)(4)(x) Regarding any funds held in trust for an
obligor (such as escrow accounts): (A) such
funds are analyzed, in accordance with the
obligor's mortgage loan documents, on at
least an annual basis, or such other period
specified in the transaction agreements;
(B) interest on such funds is paid, or
credited, to obligors in accordance with
applicable mortgage loan documents and
state laws; and (C) such funds are returned
to the obligor within 30 calendar days of
full repayment of the related mortgage
loans, or such other number of days
specified in the transaction agreements.
----------------------------------------------------------------------------------------------
1122(d)(4)(xi) Payments made on behalf of an obligor (such
as tax or insurance payments) are made on
or before the related penalty or expiration
dates, as indicated on the appropriate
bills or notices for such payments,
provided that such support has been
received by the servicer at least 30
calendar days prior to these dates, or such
other number of days specified in the
transaction agreements.
----------------------------------------------------------------------------------------------
1122(d)(4)(xii) Any late payment penalties in connection
with any payment to be made on behalf of an
obligor are paid from the servicer's funds
and not charged to the obligor, unless the
late payment was due to the obligor's error
or omission.
----------------------------------------------------------------------------------------------
EXH. 17-4
----------------------------------------------------------------------------------------------
Applicable
Servicing Criteria Servicing Criteria
----------------------------------------------------------------------------------------------
Reference Criteria
----------------------------------------------------------------------------------------------
1122(d)(4)(xiii) Disbursements made on behalf of an obligor
are posted within two business days to the
obligor's records maintained by the
servicer, or such other number of days
specified in the transaction agreements.
----------------------------------------------------------------------------------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and
uncollectible accounts are recognized and
recorded in accordance with the transaction
agreements.
----------------------------------------------------------------------------------------------
1122(d)(4)(xv) Any external enhancement or other support,
identified in Item 1114(a)(1) through (3)
or Item 1115 of Regulation AB, is
maintained as set forth in the transaction
agreements.
----------------------------------------------------------------------------------------------
[NAME OF COMPANY] [NAME OF
SUBSERVICER]
Date:______________________
By: _______________________
Name:
Title:
XXX. 00-0
N-1
EXHIBIT O
Comprehensive Amended and Restated Servicing Agreement, dated as of September
1, 2005 by and among Xxxxxxx Xxxxx Mortgage Company and JPMorgan Chase Bank,
National Association
[See Exhibit 99.11 to Form 8-K filed with the Commission on March 14, 2006,
Accession No. 0000905148-06-002297]
O-1
EXHIBIT P
Form of Master Loan Purchase Agreement, between various sellers and Xxxxxxx
Sachs Mortgage Company
[See Exhibit 99.1 to Form 8-K filed with the Commission on February 14, 2006,
Accession No. 0000905148-06-001326]
P-1
EXHIBIT Q
Flow Servicing Agreement, dated as of May 1, 2005, between Countrywide Home
Loans Servicing LP and Xxxxxxx Xxxxx Mortgage Company
[See Exhibit 99.1 to Form 8-K filed with the Commission on March 17, 2006,
Accession No. 0000905148-06-001326]
Q-1
EXHIBIT R
Flow Servicing Agreement, dated as of January 1, 2006, between Avelo Mortgage,
L.L.C. and Xxxxxxx Sachs Mortgage Company
[See Exhibit 99.13 to Form 8-K/A filed with the Commission on March 14, 2006,
Accession No. 0000905148-06-002297]
R-1
EXHIBIT S
Master Seller's Warranties and Servicing Agreement, between Xxxxxxx Xxxxx
Mortgage Company and Xxxxx Fargo Bank, N.A., dated as of August 1, 2004, as
amended by Amendment No. 1, dated as of April 26, 2005
Exhibit S
EXECUTION COPY
----------------------------------------------------
XXXXXXX XXXXX MORTGAGE COMPANY
Purchaser
and
XXXXX FARGO BANK, N.A.
Company
----------------------------------------------------
MASTER SELLER'S WARRANTIES AND SERVICING AGREEMENT
Dated as of August 1, 2004
----------------------------------------------------
Fixed Rate and Adjustable Rate Residential Mortgage Loans
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
POSSESSION OF MORTGAGE FILES;
BOOKS AND RECORDS;
DELIVERY OF DOCUMENTS
Section 2.1 Conveyance of Mortgage Loans; Possession of Mortgage Files;
Maintenance of Servicing Files...............................................10
Section 2.2 Books and Records; Transfers of Mortgage Loans...............................11
Section 2.3 Delivery of Documents........................................................12
Section 2.4 Mortgage Schedule............................................................14
Section 2.5 Examination of Mortgage Files................................................14
Section 2.6 Representations, Warranties and Agreements of the Company....................14
Section 2.7 Representation, Warranties and Agreement of Purchaser........................15
Section 2.8 Closing......................................................................15
Section 2.9 Closing Documents............................................................15
ARTICLE III
REPRESENTATIONS AND WARRANTIES REMEDIES AND BREACH
Section 3.1 Company Representations and Warranties.......................................16
Section 3.2 Representations and Warranties Regarding Individual Mortgage
Loans........................................................................18
Section 3.3 Repurchase...................................................................29
ARTICLE IV
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 4.1 Company to Act as Servicer...................................................30
Section 4.2 Liquidation of Mortgage Loans................................................31
Section 4.3 Collection of Mortgage Loan Payments.........................................32
Section 4.4 Establishment of and Deposits to Custodial Account...........................33
Section 4.5 Permitted Withdrawals From Custodial Account.................................34
Section 4.6 Establishment of and Deposits to Escrow Account..............................35
Section 4.7 Permitted Withdrawals From Escrow Account....................................36
Section 4.8 Payment of Taxes, Insurance and Other Charges................................37
Section 4.9 Protection of Accounts.......................................................37
Section 4.10 Maintenance of Hazard Insurance..............................................37
Section 4.11 Maintenance of Primary Mortgage Insurance Policy; Claims.....................38
Section 4.12 Maintenance of Mortgage Impairment Insurance.................................39
Section 4.13 Maintenance of Fidelity Bond and Errors and Omissions Insurance..............39
Section 4.14 Inspections..................................................................39
Section 4.15 Restoration of Mortgaged Property............................................40
Section 4.16 Claims.......................................................................40
Section 4.17 Title, Management and Disposition of REO Property............................40
Section 4.18 Real Estate Owned Reports....................................................41
Section 4.19 Liquidation Reports..........................................................42
Section 4.20 Reports of Foreclosures and Abandonments of Mortgaged Property...............42
Section 4.21 Fair Credit Reporting Act....................................................42
ARTICLE V
PAYMENTS TO PURCHASER
Section 5.1 Remittances..................................................................42
Section 5.2 Statements to Purchaser......................................................43
Section 5.3 Monthly Advances by Company..................................................43
ARTICLE VI
GENERAL SERVICING PROCEDURES
Section 6.1 Transfers of Mortgaged Property..............................................43
Section 6.2 Satisfaction of Mortgages and Release of Mortgage Files......................44
Section 6.3 Servicing Compensation.......................................................44
Section 6.4 Annual Statement as to Compliance............................................45
Section 6.5 Annual Independent Public Accountants' Servicing Report......................45
Section 6.6 Right to Examine Company Records.............................................45
Section 6.7 Compliance with REMIC Provisions.............................................45
ARTICLE VII
COMPANY TO COOPERATE
Section 7.1 Provision of Information.....................................................46
Section 7.2 Financial Statements; Servicing Facility.....................................46
ARTICLE VIII
THE COMPANY
Section 8.1 Indemnification; Third Party Claims..........................................46
Section 8.2 Merger or Consolidation of the Company.......................................47
Section 8.3 Limitation on Liability of Company and Others................................47
Section 8.4 Limitation on Resignation and Assignment by Company..........................47
ARTICLE IX
PASS-THROUGH TRANSFER
Section 9.1 Removal of Mortgage Loans from Inclusion Under this Agreement
Upon a Pass-Through Transfer.................................................48
ARTICLE X
DEFAULT
Section 10.1 Events of Default............................................................50
Section 10.2 Waiver of Defaults...........................................................52
ARTICLE XI
TERMINATION
Section 11.1 Termination..................................................................52
Section 11.2 Termination Without Cause....................................................52
Section 11.3 Termination With Cause.......................................................52
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.1 Successor to Company.........................................................53
Section 12.2 Amendment....................................................................54
Section 12.3 Governing Law................................................................54
Section 12.4 Duration of Agreement........................................................54
Section 12.5 Notices......................................................................54
Section 12.6 Relationship of Parties......................................................55
Section 12.7 Execution; Successors and Assigns............................................55
Section 12.8 Recordation of Assignments of Mortgage.......................................56
Section 12.9 Assignment by Purchaser......................................................56
Section 12.10 Solicitation of Mortgagor....................................................56
EXHIBITS
Exhibit A Form of Assignment and Conveyance Agreement
Exhibit A-1 Data File Elements
Exhibit B Contents of Each Mortgage Loan File
Exhibit C Form of Custodial Agreement
Exhibit D Form of Opinion of Counsel
Exhibit E Items to Be Included in Monthly Remittance Advice
Exhibit F Form of Assignment and Assumption Agreement
Exhibit G Form of Seller's Officer's Certificate
Exhibit H Form of Annual Certification
This is a Master Seller's Warranties and Servicing Agreement for fixed
rate and adjustable rate residential first mortgage loans, dated and effective
as of August 1, 2004, and is executed between Xxxxxxx Xxxxx Mortgage Company,
as purchaser (the "Purchaser"), and Xxxxx Fargo Bank, N.A., as seller and
servicer (the "Company").
W I T N E S S E T H
WHEREAS, the Purchaser desires to purchase from time to time from the
Company and the Company desires to sell from time to time to the Purchaser
certain first-lien, fixed rate and adjustable rate residential mortgage loans
(the "Mortgage Loans") which shall be delivered in pools of whole loans (each,
a "Mortgage Loan Package") on various dates as provided herein (each, a
"Closing Date");
WHEREAS, each of the Mortgage Loans is secured by a mortgage, deed of
trust or other security instrument creating a first lien on a one-to-four
family residential dwelling located in the jurisdiction indicated on the
Mortgage Loan Schedule for the related Mortgage Loan; and
WHEREAS, the Purchaser and the Company wish to prescribe the manner of
purchase of the Mortgage Loans and the conveyance, servicing and control of
the Mortgage Loans;
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth, and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the Purchaser and the Company agree
as follows:
ARTICLE I
DEFINITIONS
Whenever used herein, the following words and phrases, unless the
content otherwise requires, shall have the following meanings:
Accepted Servicing Practices: With respect to any Mortgage Loan, those
customary mortgage servicing practices of prudent mortgage lending
institutions which service mortgage loans of the same type as such Mortgage
Loan in the jurisdiction where the related Mortgaged Property is located.
Adjustable Rate Mortgage Loan: An adjustable rate Mortgage Loan
purchased pursuant to this Agreement.
Agreement: This Seller's Warranties and Servicing Agreement and all
exhibits hereto, amendments hereof and supplements hereto.
ALTA: The American Land Title Association or any successor thereto.
Applicable Law: All provisions of statutes, rules and regulations,
interpretations and orders of governmental bodies or regulatory agencies
applicable to a Person, and all orders and decrees of all courts and
arbitrators in proceedings or actions in which the Person in question is a
party.
Appraised Value: With respect to any Mortgage Loan, the lesser of (i)
the value set forth on the appraisal made in connection with the origination
of the related Mortgage Loan as the value of the related Mortgage Property, or
(ii) the purchase price paid for the Mortgage Property, provided, however, in
the case of a refinanced Mortgage Loan, such value shall be based solely on
the appraisal made in connection with the refinance of such Mortgage Loan.
-1-
Assignment of Mortgage or Assignment: An assignment of the Mortgage,
notice of transfer or equivalent instrument in recordable form, sufficient
under the laws of the jurisdiction wherein the related Mortgaged Property is
located to reflect the sale of the Mortgage to the Purchaser or its designated
assignee, of if the related Mortgage has been recorded in the name of MERS or
its designee, such actions as are necessary to cause the Purchaser to be shown
as the owner of the related Mortgage on the records of MERS for purposes of
the system of recording transfers of beneficial ownership of mortgages
maintained by MERS.
Business Day: Any day other than (i) a Saturday or Sunday, or (ii) a day
on which banking and savings and loan institutions in the states where the
parties are located are authorized or obligated by law or executive order to
be closed.
Closing Date: The date or dates on which the Purchaser from time to time
shall purchase and the Company from time to time shall sell the Mortgage Loans
listed on the related Mortgage Loan Schedule with respect to the related
Mortgage Loan Package.
Code: The Internal Revenue Code of 1986, as it may be amended from time
to time or any successor statute thereto, and applicable U.S. Department of
the Treasury regulations issued pursuant thereto.
Company: Xxxxx Fargo Bank, N.A., or its successor in interest or
assigns, or any successor to the Company under this Agreement appointed as
herein provided.
Company Certification: The certification delivered by the Company in a
form substantially similar to Exhibit H of this Agreement.
Company Employees: The meaning assigned to such term in Section 4.13.
Condemnation Proceeds: All awards or settlements in respect of a
Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan Documents.
Convertible Mortgage Loan: Any individual Adjustable Rate Mortgage Loan
purchased pursuant to this Agreement which contains a provision whereby the
Mortgagor is permitted to convert the Adjustable Rate Mortgage Loan to a Fixed
Rate Mortgage Loan in accordance with the terms of the related Mortgage Note.
Covered Loan: A Mortgage Loan categorized as "Covered" pursuant to the
Standard & Poor's Glossary for File Format for LEVELS(R) Version 5.6, Appendix
E, as revised from time to time and in effect on each related Closing Date.
Custodial Account: The separate account or accounts created and
maintained pursuant to Section 4.4.
Custodial Agreement: The agreement governing the retention of the
originals of each Mortgage Note, Mortgage, Assignment of Mortgage and other
Mortgage Loan Documents if applicable, a form of which is annexed hereto as
Exhibit C.
Custodial Mortgage File: The items pertaining to a particular Mortgage
Loan referred to in items (1), (2), (3) and (4) of Exhibit B annexed hereto,
and any additional documents required to be added to the
-2-
Custodial Mortgage File pursuant to this Agreement that have been delivered to
the Custodian as of the related Closing Date.
Custodian: The custodian under the Custodial Agreement, or its successor
in interest or assigns, or any successor to the Custodian under the Custodial
Agreement as provided therein.
Cut-off Date: The date or dates designated as such on the related
Mortgage Loan Schedule with respect to the related Mortgage Loan Package.
Data File: The electronic data file prepared by Company and delivered to
the Purchaser including the data fields set forth on Exhibit A-1 with respect
to each Mortgage Loan.
Determination Date: The day preceding the Remittance Date, or if such
day is not a Business Day, the preceding Business Day.
Due Date: The first day of the month on which the Monthly Payment is due
on a Mortgage Loan, exclusive of any days of grace.
Due Period: With respect to each Remittance Date, the period commencing
on the second day of the month preceding the month in which such Remittance
Date occurs and ending on (and including) the first day of the month in which
such Remittance Date occurs.
Errors and Omissions Insurance Policy: An errors and omissions insurance
policy to be maintained by the Company pursuant to Section 4.12.
Escrow Account: The separate account or accounts created and maintained
pursuant to Section 4.6.
Escrow Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed
by the Mortgagor with the mortgagee pursuant to the Mortgage or any other
related document.
Event of Default: Any one of the conditions or circumstances enumerated
in Section 10.1.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Xxxxxx Xxx: Xxxxxx Xxx, and its successors.
FDIC: The Federal Deposit Insurance Corporation, and its successors.
Fidelity Bond: A fidelity bond to be maintained by the Company pursuant
to Section 4.12.
First Remittance Date: The date or dates designated as such on the
related Mortgage Loan Schedule with respect to the related Mortgage Loan
Package.
Xxxxxxx Mac: Xxxxxxx Mac, and its successors.
Fixed Rate Mortgage Loan: A fixed rate mortgage loan purchased pursuant
to this Agreement.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan, the
fixed percentage amount set forth in the related Mortgage Note which amount is
added to the Index in accordance with the
-3-
terms of the related Mortgage Note to determine on each Interest Rate
Adjustment Date the Mortgage Interest Rate for such Mortgage Loan.
High Cost Loan: A Mortgage Loan classified as (a) a "high cost" loan
under the Home Ownership and Equity Protection Act of 1994, (b) a "high cost
home," "threshold," "covered," (excluding New Jersey "Covered Home Loans" as
that term is defined in clause (1) of the definition of that term in the New
Jersey Home Ownership Security Act of 2002), "high risk home," "predatory" or
similar loan under any other applicable state, federal or local law or (c) a
Mortgage Loan categorized as "High Cost" pursuant to the Standard & Poor's
Glossary for File Format for LEVELS(R) Version 5.6, Appendix E, as revised
from time to time and in effect on each related Closing Date.
Home Loan: A Mortgage Loan categorized as "Home Loan" pursuant to the
Standard & Poor's Glossary for File Format for LEVELS(R) Version 5.6, Appendix
E, as revised from time to time and in effect on each related Closing Date.
Index: With respect to each Adjustable Rate Mortgage Loan, a rate per
annum set forth in the related loan documents.
Interim Funder: With respect to each MERS Designated Mortgage Loan, the
Person named on the MERS(R) System as the interim funder pursuant to the MERS
Procedures Manual.
Insurance Proceeds: Proceeds of any mortgage insurance, title policy,
hazard policy or other insurance policy covering a Mortgage Loan, if any, to
the extent such proceeds are not to be applied to the restoration of the
related Mortgaged Property or released to the Mortgagor in accordance with the
procedures that the Company would follow in servicing mortgage loans held for
its own account.
Interest Only Mortgage Loan: A Mortgage Loan for which an interest-only
payment feature is allowed during the period prior to the first Interest Rate
Adjustment Date.
Interest Rate Adjustment Date: With respect to each Adjustable Rate
Mortgage Loan, the date, specified in the related Mortgage Note and the
Mortgage Loan Schedule, on which the Mortgage Interest Rate is adjusted.
Investor: With respect to each MERS Mortgage Loan, the Person named on
the MERS System as the investor pursuant to the MERS Procedures Manual.
Lifetime Rate Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute maximum Mortgage
Interest Rate thereunder. The Mortgage Interest Rate during the terms of each
Adjustable Rate Mortgage Loan shall not at any time exceed the Mortgage
Interest Rate at the time of origination of such Adjustable Rate Mortgage Loan
by more than the amount per annum set forth on the Mortgage Loan Schedule.
Liquidation Proceeds: Cash (other than Insurance Proceeds or
Condemnation Proceeds) received in connection with the liquidation of a
defaulted Mortgage Loan, whether through the sale or assignment of such
Mortgage Loan, trustee's sale, foreclosure sale, sale of REO Property, or
otherwise, or the sale of the related Mortgaged Property if the Mortgaged
Property is acquired in satisfaction of the Mortgage Loan.
Loan-to-Value Ratio: With respect to any Mortgage Loan, the ratio of the
original loan amount of the Mortgage Loan at its origination or refinancing,
as applicable, to the Appraised Value of the Mortgaged Property.
-4-
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any
successor thereto.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS on the MERS
System.
MERS Procedure Manual: The MERS Procedures Manual, as it may be amended,
supplemented or otherwise modified from time to time.
MERS System: The system of recording transfers of mortgages
electronically maintained by MERS.
MERS Report: The report from the MERS System listing MERS Designated
Mortgage Loans and other information.
MIN: The Mortgage Identification Number for any MERS Mortgage Loan.
MOM Loan: Any Mortgage Loan as to which MERS is acting as mortgagee,
solely as nominee for the originator of such Mortgage Loan and its successors
and assigns.
Monthly Advance: The portion of each Monthly Payment that is delinquent
with respect to each Mortgage Loan at the close of business on the
Determination Date required to be advanced by the Company pursuant to Section
5.3 on the Business Day immediately preceding the Remittance Date of the
related month.
Monthly Payment: The scheduled monthly payment of principal and
interest, or in the case of an Interest Only Mortgage Loan, payments of
interest on a Mortgage Loan.
Monthly Remittance Advice: The meaning assigned to such term in Section
5.2.
Mortgage: The mortgage, deed of trust or other instrument and riders
thereto securing a Mortgage Note, which creates a first lien on an
unsubordinated estate in fee simple in real property securing the Mortgage
Note.
Mortgage Interest Rate: The annual rate of interest borne on a Mortgage
Note in accordance with the provisions of the Mortgage Note.
Mortgage Interest Rate Cap: With respect to an Adjustable Rate Mortgage
Loan, the limit on each Mortgage Interest Rate adjustment as set forth in the
related Mortgage Note.
Mortgage Loan: An individual mortgage loan which is the subject of this
Agreement, each Mortgage Loan originally sold and subject to this Agreement
being identified on the related Mortgage Loan Schedule, which Mortgage Loan
includes without limitation the Retained Mortgage File, the Custodial Mortgage
File, the Monthly Payments, Principal Prepayments, Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds, REO Disposition Proceeds and all
other rights, benefits, proceeds and obligations arising from or in connection
with such Mortgage Loan.
Mortgage Loan Documents: With respect to a Mortgage Loan, the original
related Mortgage Note with applicable addenda and riders, the original related
security instrument and the originals of any required addenda and riders, the
original related Assignment and any original intervening related Assignments,
the original related title insurance policy, and the related appraisal report.
-5-
Mortgage Loan Package: Each pool of Mortgage Loans, which shall be
purchased by the Purchaser from the Company from time to time on each Closing
Date.
Mortgage Loan Remittance Rate: With respect to each Mortgage Loan, the
annual rate of interest remitted to the Purchaser, which shall be equal to the
Mortgage Interest Rate minus the Servicing Fee Rate.
Mortgage Loan Schedule: A schedule of Mortgage Loans included in each
Mortgage Loan Package, such schedule setting forth the following information
with respect to each Mortgage Loan: (1) the Company's Mortgage Loan number;
(2) the address, city, state and zip code of the Mortgaged Property; (3) a
code indicating whether the Mortgaged Property is a single family residence,
two-family residence, three-family residence, four-family residence, planned
unit development; (4) the Gross Margin; (5) the current Mortgage Interest
Rate; (6) the Servicing Fee Rate; (7) the current Monthly Payment; (8) the
original term to maturity; (9) the scheduled maturity date (and, if different,
the stated maturity date indicated on the Mortgage Note on its date of
origination); (10) the principal balance of the Mortgage Loan as of the
related Cut-off Date after deduction of payments of principal due on or before
the related Cut-off Date whether or not collected; (11) the Loan-to-Value
Ratio; (12) the Interest Rate Adjustment Date; (13) the Lifetime Rate Cap
under the terms of the Mortgage Note; (14) whether the Mortgage Loan is
convertible or not; (15) a code indicating the mortgage guaranty insurance
company and (16) a field indicating whether the Mortgage Loan is a Home Loan.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage and riders thereto.
Mortgaged Property: The real property securing repayment of the debt
evidenced by a Mortgage Note.
Mortgagor: The obligor on a Mortgage Note.
Officer's Certificate: A certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, the President, a Vice President, an
Assistant Vice President, the Treasurer, the Secretary or one of the Assistant
Treasurers or Assistant Secretaries of the Company, and delivered to the
Purchaser as required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be an employee
of the Company, reasonably acceptable to the Purchaser.
Pass-Through Transfer: The sale or transfer of some or all of the
Mortgage Loans by the Purchaser to a trust to be formed as part of a publicly
issued or privately placed mortgage-backed securities transaction.
Periodic Rate Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute maximum amount by
which the Mortgage Interest Rate therein may increase or decrease on an
Interest Rate Adjustment Date above or below the Mortgage Interest Rate
previously in effect. The Periodic Rate Cap for each Adjustable Rate Mortgage
Loan is the rate set forth on the Mortgage Loan Schedule.
Periodic Rate Floor: With respect to each Adjustable Rate Mortgage Loan,
the provision of each Mortgage Note which provides for an absolute maximum
amount by which the Mortgage Interest Rate therein may decrease on an Interest
Rate Adjustment Date below the Mortgage Interest Rate previously in
-6-
effect. The Periodic Rate Floor for each Adjustable Rate Mortgage Loan is the
rate set forth on the Mortgage Loan Schedule.
Person: Any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof.
Primary Mortgage Insurance Policy: Each policy of primary mortgage
insurance represented to be in effect pursuant to Section 3.2(xxxii), or any
replacement policy therefor obtained by the Servicer pursuant to Section 4.8.
Prime Rate: The prime rate announced to be in effect from time to time,
as published as the average rate in The Wall Street Journal.
Principal Balance: As to each Mortgage Loan, (i) the actual outstanding
principal balance of the Mortgage Loan at the related Cut-off Date after
giving effect to payments of principal due on or before such date, whether or
not received, minus (ii) all amounts attributable to principal collected from
or on behalf of the Mortgagor, including the principal portion of Liquidation
Proceeds, Condemnation Proceeds, and Insurance Proceeds.
Principal Prepayment: Any payment or other recovery of principal on a
Mortgage Loan which is received in advance of its scheduled Due Date,
including any prepayment penalty or premium thereon and which is not
accompanied by an amount of interest representing scheduled interest due on
any date or dates in any month or months subsequent to the month of
prepayment.
Principal Prepayment Period: With respect to each Remittance Date, the
period commencing on the first day of the month preceding the month in which
such Remittance Date occurs, and ending on the last day of such month.
Purchase Price: The purchase price for a Mortgage Loan Package specified
in the related Purchase Price and Terms Letter.
Purchase Price and Terms Letter: Those certain agreements setting forth
the general terms and conditions of the transaction consummated herein and
identifying the Mortgage Loans to be purchased from time to time hereunder,
between the Company and the Purchaser.
Purchaser: Xxxxxxx Xxxxx Mortgage Company, or its successor in interest
or any successor to the Purchaser under this Agreement as herein provided.
Qualification Defect: With respect to a Mortgage Loan, (a) a defective
document in the Retained Mortgage File or Custodial Mortgage File, (b) the
absence of a document in the Retained Mortgage File or Custodial Mortgage
File, or (c) the breach of any representation, warranty or covenant with
respect to the Mortgage Loan made by the Company, but, in each case, only if
the affected Mortgage Loan would cease to qualify as a "qualified mortgage"
for purposes of the REMIC Provisions.
Qualified Depository: A federal or state chartered depository
institution, the deposits in which are insured by the FDIC to the applicable
limits and the short-term unsecured debt obligations of which (or, in the case
of a depository institution that is a subsidiary of a holding company, the
short-term unsecured debt obligations of such holding company) are rated A-1
by Standard & Poor's Ratings Group and Prime-1 by Xxxxx'x Investors Service,
Inc. (or a comparable rating if another rating agency is specified by the
Purchaser by written notice to the Company) at the time any deposits are held
on deposit therein;
-7-
provided however, that in the event any of the Mortgage Loans are subject to a
Pass-Through Transfer, the Company agrees that the holding company or other
entity which maintains any accounts subject to this definition, shall satisfy
the rating requirements established by any Rating Agency which rates
securities issued as part of the Pass-Through Transfer.
Qualified Insurer: A mortgage guaranty insurance company duly authorized
and licensed where required by law to transact mortgage guaranty insurance
business and approved as an insurer by Xxxxxx Xxx.
Rating Agency: Xxxxx'x Investors Service, Inc., Standard & Poor's
Ratings Group, division of The XxXxxx-Xxxx Companies, Fitch, Inc (doing
business as "Fitch Ratings"), or any other nationally recognized statistical
credit rating agency rating any security issued in connection with any
Pass-Through Transfer.
Rating Agency Delivery Event: The meaning specified in Section 9.1(h) of
this Agreement.
Reconstitution Date: The date on which any or all of the Mortgage Loans
serviced under this Agreement shall be reconstituted as part of a Pass-Through
Transfer or Whole Loan Transfer pursuant to Section 9.1 hereof. The
Reconstitution Date shall be such date the Purchaser shall designate in
writing to the Company.
REMIC: A "real estate mortgage investment conduit" within the meaning of
Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating to a
REMIC, which appear at Section 860A through 860G of Subchapter M of Chapter 1,
Subtitle A of the Code, and related provisions, regulations, rulings or
pronouncements promulgated thereunder, as the foregoing may be in effect from
time to time.
Remittance Advice Date: The 10th Business Day of each month.
Remittance Date: The 18th day (or if such 18th day is not a Business
Day, the first Business Day immediately preceding such date) of any month,
beginning with the First Remittance Date.
REO Disposition: The final sale by the Company of any REO Property.
REO Disposition Proceeds: All amounts received with respect to an REO
Disposition pursuant to Section 4.16.
REO Property: A Mortgaged Property acquired by the Company on behalf of
the Purchaser through foreclosure or by deed in lieu of foreclosure, as
described in Section 4.16.
Repurchase Price: Unless agreed otherwise by the Purchaser and the
Company (including without limitation as set forth in the related Purchase
Price and Terms Letter), a price equal to (i) the Scheduled Principal Balance
of the Mortgage Loan plus (ii) interest on such Scheduled Principal Balance at
the Mortgage Loan Remittance Rate from the date on which interest has last
been paid and distributed to the Purchaser to the last day of the month of
repurchase less amounts received or advanced in respect of such repurchased
Mortgage Loan which are being held in the Custodial Account for distribution
in the month of repurchase, to the extent such amounts are actually paid to
the Purchaser upon the repurchase of the related Mortgage Loan, plus (iii) any
costs and damages, including reasonable attorneys' fees and
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costs, incurred by the trust in the applicable Pass-Through Transfer in
connection with any violation by the Mortgage Loan of any predatory or abusive
lending law.
Retained Mortgage File: The items pertaining to a particular Mortgage
Loan referred to in items (5), (6), (7) and (8) of Exhibit B annexed hereto,
and any additional documents required to be added to the Retained Mortgage
File pursuant to this Agreement, which items are retained in the possession of
the Company.
Scheduled Principal Balance: As to each Mortgage Loan and as of any date
of determination, (i) the principal balance of the Mortgage Loan at the
related Cut-off Date after giving effect to payments of principal due on or
before such date, whether or not received, minus (ii) all amounts previously
collected by the Company as servicer hereunder or advanced and distributed to
the Purchaser with respect to the related Mortgage Loan representing payments
or recoveries of principal or advances made in lieu thereof.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses other than Monthly Advances (including reasonable
attorney's fees and disbursements) incurred in the performance by the Company
of its servicing obligations, including, but not limited to, the cost of (a)
the preservation, restoration and protection of the Mortgaged Property, (b)
any enforcement or judicial proceedings, including foreclosures, (c) the
management and liquidation of any REO Property and (d) compliance with the
obligations under Section 4.8.
Servicing Fee: With respect to each Mortgage Loan, the amount of the per
annum fee the Purchaser shall pay to the Company, which shall, for a period of
one full month, be equal to one-twelfth of the product of (a) the Servicing
Fee Rate and (b) the Scheduled Principal Balance of such Mortgage Loan. Such
fee shall be payable monthly, computed on the basis of the same principal
amount and same period for which any related interest payment on a Mortgage
Loan is computed. The obligation of the Purchaser to pay the Servicing Fee is
limited to, and the Servicing Fee is payable solely from, the interest portion
(including recoveries with respect to interest from Liquidation Proceeds, to
the extent permitted by Section 4.5) of such Monthly Payment collected by the
Company, or as otherwise provided under Section 4.5.
Servicing Fee Rate: With respect to any Mortgage Loan, the rate per
annum set forth in the related Purchase Price and Terms Letter.
Servicing File: With respect to each Mortgage Loan, the file retained by
the Company consisting of originals of all documents in the Retained Mortgage
File which are not delivered to the Custodian and copies of the Mortgage Loan
Documents listed in the Custodial Agreement the originals of which are
delivered to the Custodian pursuant to Section 2.3.
Servicing Officer: Any officer of the Company involved in or responsible
for the administration and servicing of the Mortgage Loans whose name appears
on a list of servicing officers furnished by the Company to the Purchaser upon
request, as such list may from time to time be amended.
Time$aver(R) Mortgage Loan: A Mortgage Loan which has been refinanced
pursuant to a Company program that allows a rate/term refinance of an existing
Company-serviced loan with minimal documentation.
Whole Loan Transfer: Any sale or transfer of some or all of the Mortgage
Loans by the Purchaser to a third party, which sale or transfer is not a
Pass-Through Transfer.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; POSSESSION OF MORTGAGE FILES; BOOKS AND
RECORDS; DELIVERY OF DOCUMENTS
Section 2.1 Conveyance of Mortgage Loans; Possession of Mortgage Files;
Maintenance of Servicing Files.
The Company, simultaneously with the delivery of the Mortgage Loan
Schedule with respect to the related Mortgage Loan Package to be purchased on
each Closing Date, shall execute and deliver an Assignment and Conveyance
Agreement in the form attached hereto as Exhibit A (the "Assignment and
Conveyance Agreement").
The Company, simultaneously with the execution and delivery of each
Assignment and Conveyance Agreement, shall sell, transfer, assign, set over
and convey to the Purchaser, without recourse, but subject to the terms of
this Agreement, all the right, title and interest of the Company in and to the
Mortgage Loans, including all interest and principal received by the Company
on or with respect to the related Mortgage Loans after the related Cut-off
Date (and including Monthly Payments due after the related Cut-off Date but
received by the Company on or before the related Cut-off Date, but not
including payments of principal and interest due on the Mortgage Loans on or
before the related Cut-off Date).
The principal balance of each Mortgage Loan as of the related Cut-off
Date shall be determined after application of payments of principal due on or
before the related Cut-off Date whether or not collected. Therefore, payments
of scheduled principal and interest prepaid for a Due Date beyond the related
Cut-off Date shall not be applied to the principal balance as of the related
Cut-off Date. Such prepaid amounts (minus interest at the Servicing Fee Rate)
shall be the property of the Purchaser. The Company shall deposit any such
prepaid amounts into the Custodial Account, which account is established for
the benefit of the Purchaser for subsequent remittance by the Company to the
Purchaser, and shall remit such amounts as provided in Section 5.1.
With respect to each Closing Date and pursuant to Section 2.3, the
Company shall deliver the Custodial Mortgage File to the Custodian. The
Retained Mortgage File for each Mortgage Loan shall be held in trust by the
Company for the benefit of the Purchaser as the owner thereof. Additionally
and separate to the Retained Mortgage File, the Company shall maintain a
Servicing File consisting of a copy of the contents of the Custodial Mortgage
File and the Retained Mortgage File. The possession of each Retained Mortgage
File by the Company shall be at the will of the Purchaser, and such retention
and possession by the Company shall be in a custodial capacity only. The
possession of each Servicing File by the Company shall be at the will of the
Purchaser for the sole purpose of servicing the related Mortgage Loan, and
such retention and possession by the Company shall be in a custodial capacity
only. Upon the sale of the Mortgage Loans the ownership of each Mortgage Note,
the related Mortgage and the related Custodial Mortgage File, Retained
Mortgage File and Servicing File shall vest immediately in the Purchaser, and
the ownership of all records and documents with respect to the related
Mortgage Loan prepared by or which come into the possession of the Company
shall vest immediately in the Purchaser and shall be retained and maintained
by the Company, in trust, at the will of the Purchaser and only in such
custodial capacity. The Company shall release its custody of the contents of
any Retained Mortgage File and Servicing File only in accordance with written
instructions from the Purchaser, unless such release is required as incidental
to the Company's servicing of the Mortgage Loans, in the case of the Servicing
File, or is in connection with a repurchase of any Mortgage Loan pursuant to
Sections 2.03, 3.3 or 6.2.
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In addition, in connection with the assignment of any MERS Mortgage
Loan, the Company agrees that it will cause, at its own expense, the MERS(R)
System to indicate that such Mortgage Loans have been assigned by the Company
to the Purchaser in accordance with this Agreement by including (or deleting,
in the case of Mortgage Loans which are repurchased in accordance with this
Agreement) in such computer files the information required by the MERS(R)
System to identify the Purchaser of such Mortgage Loans. Prior to the
assignment of any MERS Mortgage Loan, the Purchaser will provide the Company
with Purchaser's MERS registration number. The Company further agrees that it
will not alter the information referenced in this paragraph with respect to
any Mortgage Loan during the term of this Agreement unless and until such
Mortgage Loan is repurchased in accordance with the terms of this Agreement.
Section 2.2 Books and Records; Transfers of Mortgage Loans.
From and after the sale of the Mortgage Loans to the Purchaser all
rights arising out of the Mortgage Loans including but not limited to all
funds received on or in connection with the Mortgage Loans, shall be received
and held by the Company in trust for the benefit of the Purchaser as owner of
the Mortgage Loans, and the Company shall retain record title to the related
Mortgages for the sole purpose of facilitating the servicing and the
supervision of the servicing of the Mortgage Loans.
The sale of each Mortgage Loan shall be reflected on the Company's
balance sheet and other financial statements as a sale of assets by the
Company. The Company shall be responsible for maintaining, and shall maintain,
a complete set of books and records for each Mortgage Loan which shall be
marked clearly to reflect the ownership of each Mortgage Loan by the
Purchaser. In particular, the Company shall maintain in its possession,
available for inspection by the Purchaser, or its designee, and shall deliver
to the Purchaser upon demand, evidence of compliance with all federal, state
and local laws, rules and regulations, and requirements of Xxxxxx Xxx or
Xxxxxxx Mac, including but not limited to documentation as to the method used
in determining the applicability of the provisions of the Flood Disaster
Protection Act of 1973, as amended, to the Mortgaged Property, documentation
evidencing insurance coverage and eligibility of any condominium project for
approval by Xxxxxx Mae or Xxxxxxx Mac, and records of periodic inspections as
required by Section 4.13. To the extent that original documents are not
required for purposes of realization of Liquidation Proceeds or Insurance
Proceeds, documents maintained by the Company may be in the form of microfilm
or microfiche or such other reliable means of recreating original documents,
including but not limited to, optical imagery techniques so long as the
Company complies with the requirements of the Xxxxxx Mae or Xxxxxxx Mac
Selling and Servicing Guide, as amended from time to time.
The Company shall maintain with respect to each Mortgage Loan and shall
make available for inspection by any Purchaser or its designee the related
Servicing File during the time the Purchaser retains ownership of a Mortgage
Loan and thereafter in accordance with Applicable Law.
The Company shall keep at its servicing office books and records in
which, subject to such reasonable regulations as it may prescribe, the Company
shall note transfers of Mortgage Loans. No transfer of a Mortgage Loan may be
made unless such transfer is in compliance with the terms hereof. For the
purposes of this Agreement, the Company shall be under no obligation to deal
with any Person with respect to this Agreement or the Mortgage Loans unless
the books and records show such Person as the owner of the Mortgage Loan. The
Purchaser may, subject to the terms of this Agreement, sell and transfer one
or more of the Mortgage Loans. The Purchaser also shall advise the Company of
the transfer. Upon receipt of notice of the transfer, the Company shall xxxx
its books and records to reflect the ownership of the Mortgage Loans of such
assignee, and shall release the previous Purchaser from its obligations
hereunder with respect to the Mortgage Loans sold or transferred. Such
notification of a transfer shall include a final loan schedule which shall be
received by the Company no fewer than five (5)
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Business Days before the monthly Determination Date. If such notification is
not received as specified above, the Company's duties to remit and report to
the new purchaser(s) as required by Section 5 shall begin with the first
Determination Date after the Reconstitution Date.
Section 2.3 Delivery of Documents.
Pursuant to the Custodial Agreement delivered to the Purchaser prior to
or contemporaneously with the delivery of this Agreement, the Company shall
deliver and release to the Custodian those Mortgage Loan Documents as required
by the Custodial Agreement and by this Agreement with respect to each Mortgage
Loan.
The Custodian shall certify its receipt of all such Mortgage Loan
Documents required to be delivered pursuant to the Custodial Agreement. The
Company will be responsible for the Custodian's fees and expenses with respect
to the delivery and certification of those Mortgage Loan Documents required to
be delivered pursuant to the Custodial Agreement. The Company will be
responsible for the fees and expenses related to the recording of the initial
Assignments of Mortgage (including any fees and expenses related to any
preparation and recording of any intervening or prior assignments of the
Mortgage Loans to the Company or to any prior owners of or mortgagees with
respect to the Mortgage Loans). The Purchaser will be responsible for the
Custodian's fees and expenses with respect to the initial inventory and
maintenance of the Mortgage Loans on or after the related Closing Date,
including the costs associated with clearing exceptions.
Within 180 days after the related Closing Date, the Company shall
deliver to the Custodian each of the documents described in Exhibit B not
delivered pursuant to the Agreement. Upon the occurrence of the events
described in Section 9.1(h), Section 11.2 or Section 11.3 of this Agreement or
in the event the Company fails to allow the Purchaser access to the Retained
Mortgage File as required pursuant to Section 2.5 (each such occurrence, a
"Delivery Event"), the Company shall deliver to the Custodian the additional
documents required to be delivered pursuant to the Custodial Agreement within
the time period specified therein. All of the provisions of this Section 2.3
relating to a failure to deliver required documentation, delays in such
delivery and the delivery of defective documentation shall apply equally to
any obligation on the part of the Company to deliver documents which arises
after the related Closing Date upon the occurrence of a Delivery Event.
The Company shall pay all initial recording fees for the Assignments of
Mortgage and any other fees in connection with the transfer of all original
documents to the Purchaser or its designee. The Company shall prepare, in
recordable form, all Assignments of Mortgage necessary to assign the Mortgage
Loans to the Purchaser, or its designee. The Company shall be responsible for
recording the Assignments of Mortgage.
The Company shall forward to the Custodian original documents evidencing
an assumption, modification, consolidation or extension of any Mortgage Loan
entered into in accordance with Section 4.1 or 6.1 within one week of their
execution, provided, however, that the Company shall provide the Custodian
with a certified true copy of any such document submitted for recordation
within ten (10) days of its execution, and shall provide the original of any
document submitted for recordation or a copy of such document certified by the
appropriate public recording office to be a true and complete copy of the
original within 60 days of its submission for recordation.
In the event the public recording office is delayed in returning any
original document, which the Company is required to deliver at any time to the
Custodian in accordance with the terms of the Custodial Agreement or which the
Company is required to maintain in the Retained Mortgage File, the Company
shall deliver to the Custodian or to the Retained Mortgage File, as
applicable, within 240 days of its
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submission for recordation, a copy of such document and an Officer's
Certificate, which shall (i) identify the recorded document; (ii) state that
the recorded document has not been delivered to the Custodian due solely to a
delay by the public recording office, (iii) state the amount of time generally
required by the applicable recording office to record and return a document
submitted for recordation, and (iv) specify the date the applicable recorded
document will be delivered to the Custodian. The Company will be required to
deliver the document to the Custodian by the date specified in (iv) above. An
extension of the date specified in (iv) above may be requested from the
Purchaser, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing, if the originals or certified copies
required in this Section 2.3 are not delivered as required within 180 days
following the related Closing Date or as otherwise extended as set forth
above, or within the designated time period, following any date subsequent to
the related Closing Date as of which the Company becomes obligated to deliver
additional documents from its Retained Mortgage File pursuant to the Custodial
Agreement, the related Mortgage Loan shall, upon request of the Purchaser, be
repurchased by the Company in accordance with Section 3.3 hereof; provided,
however, that the foregoing repurchase obligation shall not apply in the event
the Company cannot deliver such items due to a delay caused by the recording
office in the applicable jurisdiction; provided that the Company shall deliver
instead a recording receipt of such recording office or, if such recording
receipt is not available, an Officer's Certificate from the Company confirming
that such documents have been accepted for recording. Any such document shall
be delivered to the Purchaser or its designee promptly upon receipt thereof
from the related recording office.
If the Company, the Purchaser or the Custodian finds any document or
documents constituting a part of a Retained Mortgage File or the Custodial
Mortgage File pertaining to a Mortgage Loan to be defective (or missing) in
any material respect (regardless of whether the Company was required to
deliver such document(s) to the Custodian pursuant to this Agreement or
whether such document(s) were to remain in the possession of the Company), and
such defect or missing document materially and adversely affects the value of
the related Mortgage Loan or the interests of the Purchaser therein, the party
discovering such defect shall promptly so notify the Company. The Company
shall have a period of 90 days after receipt of such written notice within
which to correct or cure any such defect. The Company hereby covenants and
agrees that, if any material defect cannot be corrected or cured, the Company
will, upon the expiration of the applicable cure period described above,
repurchase the related Mortgage Loan in the manner set forth in Section 3.3;
provided, however, that with respect to any Mortgage Loan, if such defect
constitutes a Qualification Defect, any such repurchase must take place within
75 days of the date such defect is discovered.
Notwithstanding the foregoing, with respect to a Mortgage Loan, if, at
the end of such 90-day period, the Company delivers an Officer's Certificate
to the Purchaser certifying that the Company is using good faith efforts to
correct or cure such defect and identifying progress made, then the Purchaser
shall grant the Company an extension to correct or cure such defect. The
extension shall not extend beyond (1) the date that is 75 days after the date
the defect is discovered, or, (2) if the defect is not a Qualification Defect
(as evidenced by an Opinion of Counsel), the date that is 30 days beyond the
original 90-day cure period. If the defect is not a Qualification Defect,
additional 30-day extensions may be obtained pursuant to the same procedure,
as long as the Company demonstrates continued progress toward a correction or
cure; provided that no extension shall be granted beyond 180 days from the
date on which the Company received the original notice of the defect.
Notwithstanding the foregoing, with respect to a Mortgage Loan, the
failure of the Purchaser to notify the Company of any defective or missing
document in either the Retained Mortgage File or Custodial Mortgage File
within such 90-day period, or the failure of the Purchaser to require the
Company to cure or repurchase the related Mortgage Loan upon expiration of
such 90-day period, shall
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not constitute a waiver of its rights hereunder, including the rights with
respect to a Mortgage Loan, to require the Company to repurchase the affected
Mortgage Loan and the right to indemnification pursuant to Section 3.3 hereof.
Section 2.4 Mortgage Schedule.
The Company shall provide the Purchaser with certain information
constituting a listing of the Mortgage Loans, in each Mortgage Loan Package,
to be purchased under this Agreement (the "Mortgage Loan Schedule"). The
Mortgage Loan Schedule shall conform to the definition of "Mortgage Loan
Schedule" hereunder.
Section 2.5 Examination of Mortgage Files.
Prior to the related Closing Date, the Company shall (a) deliver to the
Purchaser in escrow, for examination, the Custodial Mortgage File for each
Mortgage Loan, including a copy of the Assignment of Mortgage, pertaining to
each Mortgage Loan, or (b) make the Mortgage Files available to the Purchaser
for examination at the Company's offices or such other location as shall
otherwise be agreed upon by the Purchaser and the Company. Such examination
may be made by the Purchaser or by any prospective purchaser of the Mortgage
Loans from the Purchaser, at any time before or after the related Closing Date
upon prior reasonable notice to the Company. The fact that the Purchaser or
any prospective purchaser of the Mortgage Loans has conducted or has failed to
conduct any partial or complete examination of the Custodial Mortgage Files
shall not affect the Purchaser's (or any of its successor's) rights to demand
repurchase, substitution or other relief as provided under this Agreement.
The Company shall make the Retained Mortgage Files available to the
Purchaser for examination at the Company's offices or such other location as
shall otherwise be agreed upon by the Purchaser and the Company. Such
examination may be made by the Purchaser or by any prospective purchaser of
the Mortgage Loans from the Purchaser, at any time before or after the related
Closing Date upon prior reasonable notice to the Company. The fact that the
Purchaser or any prospective purchaser of the Mortgage Loans has conducted or
has failed to conduct any partial or complete examination of the Retained
Mortgage Files shall not affect the Purchaser's (or any of its successor's)
rights to demand repurchase, substitution or other relief as provided under
this Agreement.
Section 2.6 Representations, Warranties and Agreements of the Company.
The Company agrees and acknowledges that it shall, as a condition to the
consummation of the transactions contemplated hereby, make the representations
and warranties specified in Sections 3.1 and 3.2 as of the related Closing
Date. The Company, without conceding that the Mortgage Loans are securities,
hereby makes the following additional representations, warranties and
agreements which shall be deemed to have been made as of the related Closing
Date: Neither the Company nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of any Mortgage Loans, any
interest in any Mortgage Loans or any other similar security to, or solicited
any offer to buy or accept a transfer, pledge or other disposition of any
Mortgage Loans, any interest in any Mortgage Loans or any other similar
security from, or otherwise approached or negotiated with respect to any
Mortgage Loans, any interest in any Mortgage Loans or any other similar
security with, any person in any manner, or made any general solicitation by
means of general advertising or in any other manner, or taken any other action
which would constitute a distribution of the Mortgage Loans under the
Securities Act of 1933, as amended (the "1933 Act") or which would render the
disposition of any Mortgage Loans a violation of Section 5 of the 1933 Act or
require registration pursuant thereto, nor will it act, nor has it authorized
or will it authorize any person to act, in such manner with respect to the
Mortgage Loans.
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Section 2.7 Representation, Warranties and Agreement of Purchaser.
The Purchaser, without conceding that the Mortgage Loans are securities,
hereby makes the following representations, warranties and agreements, which
shall have been deemed to have been made as of the related Closing Date.
(i) the Purchaser understands that the Mortgage Loans have
not been registered under the 1933 Act or the securities laws of any
state;
(ii) the Purchaser is acquiring the Mortgage Loans for its
own account only and not for any other person; and
(iii) the Purchaser considers itself a substantial,
sophisticated institutional investor having such knowledge and
experience in financial and business matters that it is capable of
evaluating the merits and risks of investment in the Mortgage Loans.
Section 2.8 Closing.
The closing for the purchase and sale of the Mortgage Loans shall take
place on the related Closing Date. At the Purchaser's option, each Closing
shall be either: by telephone, confirmed by letter or wire as the parties
shall agree; or conducted in person, at such place as the parties shall agree.
The closing shall be subject to each of the following conditions:
(i) all of the representations and warranties of the Company under
this Agreement shall be true and correct as of the related Closing
Date and no event shall have occurred which, with notice or the
passage of time, would constitute a default under this Agreement;
(ii) the Purchaser shall have received, or the Purchaser's attorneys
shall have received in escrow, all Closing Documents as specified
in Section 2.9 of this Agreement, in such forms as are agreed upon
and acceptable to the Purchaser, duly executed by all signatories
other than the Purchaser as required pursuant to the respective
terms thereof;
(iii) the Company shall have delivered and released to the Custodian all
documents required pursuant to this Agreement and the Custodial
Agreement; and
(iv) all other terms and conditions of this Agreement shall have been
complied with.
Subject to the foregoing conditions, the Purchaser shall pay to the
Company on the related Closing Date the Purchase Price by wire transfer of
immediately available funds to the account designated by the Company.
Section 2.9 Closing Documents.
The Closing Documents for the Mortgage Loans to be purchased on each
Closing Date shall consist of fully executed originals of the following
documents:
(i) this Agreement (to be executed and delivered only for the initial
Closing Date);
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(ii) with respect to the initial Closing Date, the Custodial Agreement,
dated as of the initial Cut-off Date;
(iii) the related Mortgage Loan Schedule, segregated by Mortgage Loan
Package, to be attached to the related Assignment and Conveyance
as the Mortgage Loan Schedule thereto;
(iv) a Custodian's Certification, as required under the Custodial
Agreement;
(v) an officer's certificate of the Company substantially in the form
of Exhibit F attached hereto (with respect to the initial Closing
Date);
(vi) an Opinion of Counsel of the Company, in the form of Exhibit D
hereto (with respect to the initial Closing Date); and
(vii) Assignment and Conveyance Agreement in the form of Exhibit A
hereto.
ARTICLE III
REPRESENTATIONS AND WARRANTIES REMEDIES AND BREACH
Section 3.1 Company Representations and Warranties.
The Company hereby represents and warrants to the Purchaser that, as of
the related Closing Date:
(i) Due Organization and Authority.
The Company is a national banking association duly organized, validly
existing and in good standing under the laws of the United States and
has all licenses necessary to carry on its business as now being
conducted and is licensed, qualified and in good standing in each state
where a Mortgaged Property is located if the laws of such state require
licensing or qualification in order to conduct business of the type
conducted by the Company, and in any event the Company is in compliance
with the laws of any such state to the extent necessary to ensure the
enforceability of the related Mortgage Loan and the servicing of such
Mortgage Loan in accordance with the terms of this Agreement; the
Company has the full power and authority to execute and deliver this
Agreement and to perform in accordance herewith; the execution, delivery
and performance of this Agreement (including all instruments of transfer
to be delivered pursuant to this Agreement) by the Company and the
consummation of the transactions contemplated hereby have been duly and
validly authorized; this Agreement evidences the valid, binding and
enforceable obligation of the Company; and all requisite action has been
taken by the Company to make this Agreement valid and binding upon the
Company in accordance with its terms;
(ii) Ordinary Course of Business.
The consummation of the transactions contemplated by this Agreement are
in the ordinary course of business of the Company, which is in the
business of selling and servicing loans, and the transfer, assignment
and conveyance of the Mortgage Notes and the Mortgages by the Company
-16-
pursuant to this Agreement are not subject to the bulk transfer or any
similar statutory provisions in effect in any applicable jurisdiction;
(iii) No Conflicts.
Neither the execution and delivery of this Agreement, the acquisition of
the Mortgage Loans by the Company, the sale of the Mortgage Loans to the
Purchaser or the transactions contemplated hereby, nor the fulfillment
of or compliance with the terms and conditions of this Agreement will
conflict with or result in a breach of any of the terms, articles of
incorporation or by-laws or any legal restriction or any agreement or
instrument to which the Company is now a party or by which it is bound,
or constitute a default or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Company or its
property is subject, or impair the ability of the Purchaser to realize
on the Mortgage Loans, or impair the value of the Mortgage Loans;
(iv) Ability to Service.
The Company is an approved seller/servicer of residential mortgage loans
for Xxxxxx Xxx and Xxxxxxx Mac, with the facilities, procedures, and
experienced personnel necessary for the sound servicing of mortgage
loans of the same type as the Mortgage Loans. The Company is a HUD
approved mortgagee pursuant to Section 203 of the National Housing Act
and is in good standing to sell mortgage loans to and service mortgage
loans for Xxxxxx Mae and Xxxxxxx Mac, and no event has occurred,
including but not limited to a change in insurance coverage, which would
make the Company unable to comply with Xxxxxx Mae or Xxxxxxx Mac
eligibility requirements or which would require notification to Xxxxxx
Mae or Xxxxxxx Mac;
(v) Reasonable Servicing Fee.
The Company acknowledges and agrees that the Servicing Fee represents
reasonable compensation for performing such services and that the entire
Servicing Fee shall be treated by the Company, for accounting and tax
purposes, as compensation for the servicing and administration of the
Mortgage Loans pursuant to this Agreement;
(vi) Ability to Perform.
The Company does not believe, nor does it have any reason or cause to
believe, that it cannot perform each and every covenant contained in
this Agreement. The Company is solvent and the sale of the Mortgage
Loans will not cause the Company to become insolvent. The sale of the
Mortgage Loans is not undertaken to hinder, delay or defraud any of the
Company's creditors;
(vii) No Litigation Pending.
There is no action, suit, proceeding or investigation pending or
threatened against the Company which, either in any one instance or in
the aggregate, may result in any material adverse change in the
business, operations, financial condition, properties or assets of the
Company, or in any material impairment of the right or ability of the
Company to carry on its business substantially as now conducted, or in
any material liability on the part of the Company, or which would draw
into question the validity of this Agreement or the Mortgage Loans or of
any action taken or to be contemplated herein, or which would be likely
to impair materially the ability of the Company to perform under the
terms of this Agreement;
(viii) Selection Process
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The Mortgage Loans were selected from among the outstanding adjustable
rate one to four family mortgage loans in the Company's mortgage banking
portfolio at the related Closing Date as to which the representations
and warranties in Section 3.2 could be made and such selection was not
made in a manner so as to affect adversely the interests of the
Purchaser.
(ix) No Consent Required.
No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Company of or compliance by the Company with this
Agreement or the sale of the Mortgage Loans as evidenced by the
consummation of the transactions contemplated by this Agreement, or if
required, such approval has been obtained prior to the related Closing
Date;
(x) No Untrue Information.
Neither this Agreement nor any statement, report or other document
furnished or to be furnished pursuant to this Agreement or in connection
with the transactions contemplated hereby contains any untrue statement
of fact or omits to state a fact necessary to make the statements
contained therein not misleading;
(xi) Sale Treatment.
The Company has determined that the disposition of the Mortgage Loans
pursuant to this Agreement will be afforded sale treatment for
accounting and tax purposes;
(xii) No Material Change.
There has been no material adverse change in the business, operations,
financial condition or assets of the Company since the date of the
Company's most recent financial statements;
(xiii) No Brokers' Fees.
The Company has not dealt with any broker, investment banker, agent or
other Person that may be entitled to any commission or compensation in
the connection with the sale of the Mortgage Loans; and
(xiv) MERS Status
The Company is a member of MERS in good standing.
Section 3.2 Representations and Warranties Regarding Individual Mortgage
Loans.
As to each Mortgage Loan, the Company hereby represents and warrants to
the Purchaser that as of the related Closing Date:
(i) Mortgage Loans as Described.
The information set forth in the Mortgage Loan Schedule and the
information contained on the electronic Data File is true and
correct;
(ii) Payment History.
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All payments required to be made up to the Cutoff Date for each
Mortgage Loan under the terms of the Mortgage Note have been made
and credited. No payment under any Mortgage Loan has been 30 days
delinquent more than one time within twelve months prior to the
related Closing Date;
(iii) No Outstanding Charges.
There are no defaults by the Company in complying with the terms
of the Mortgage Note or Mortgage, and all taxes, governmental
assessments, insurance premiums, leasehold payments, water, sewer
and municipal charges, which previously became due and owing have
been paid, or an escrow of funds has been established for every
such item which remains unpaid and which has been assessed but is
not yet due and payable. The Company has not advanced funds, or
induced or solicited directly or indirectly, the payment of any
amount required under the Mortgage Loan, except for interest
accruing from the date of the Mortgage Note or date of
disbursement of the Mortgage Loan proceeds, whichever is later, to
the day which precedes by one month the Due Date of the first
installment of principal and interest;
(iv) Original Terms Unmodified.
The terms of the Mortgage Note and Mortgage have not been
impaired, waived, altered or modified in any respect, except by a
written instrument which has been recorded, if necessary to
protect the interests of the Purchaser, and which has been
delivered to the Purchaser. The substance of any such waiver,
alteration or modification has been approved by the mortgage
insurer, if the Mortgage Loan is insured, the title insurer, to
the extent required by the policy, and its terms are reflected on
the Mortgage Loan Schedule. No Mortgagor has been released, in
whole or in part. No Mortgage Loan has been modified so as to
restructure the payment obligations or re-age the Mortgage Loan;
(v) No Defenses.
The Mortgage Loan is not subject to any right of rescission,
set-off, counterclaim or defense, including without limitation the
defense of usury, nor will the operation of any of the terms of
the Mortgage Note or the Mortgage, or the exercise of any right
thereunder, render either the Mortgage Note or the Mortgage
unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including without
limitation the defense of usury, and no such right of rescission,
set-off, counterclaim or defense has been asserted with respect
thereto;
(vi) No Satisfaction of Mortgage.
The Mortgage has not been satisfied, canceled, subordinated or
rescinded, in whole or in part, and the Mortgaged Property has not
been released from the lien of the Mortgage, in whole or in part,
nor has any instrument been executed that would effect any such
satisfaction, release, cancellation, subordination or rescission;
(vii) Validity of Mortgage Documents.
The Mortgage Note and the Mortgage and any other agreement
executed and delivered by a Mortgagor in connection with a
Mortgage Loan are genuine, and each is the legal, valid and
binding obligation of the maker thereof enforceable in accordance
with its
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terms (including, without limitation, any provisions therein
relating to prepayment charges). All parties to the Mortgage Note
and the Mortgage had legal capacity to enter into the Mortgage
Loan and to execute and deliver the Mortgage Note and the
Mortgage, and the Mortgage Note and the Mortgage have been duly
and properly executed by such parties;
(viii) No Fraud.
No error, omission, misrepresentation, negligence, fraud or
similar occurrence with respect to a Mortgage Loan has taken place
on the part of the Company, the Mortgagor, or, to the best of the
Company's knowledge, any appraiser, any builder, or any developer,
or any other party involved in the origination of the Mortgage
Loan or in the application of any insurance in relation to such
Mortgage Loan;
(ix) Compliance with Applicable Laws.
Any and all requirements of any federal, state or local law
including, without limitation, usury, truth-in-lending, real
estate settlement procedures, consumer credit protection, equal
credit opportunity, predatory and abusive lending or disclosure
laws applicable to the Mortgage Loan, including, without
limitation, any provisions relating to prepayment charges, have
been complied with, the consummation of the transactions
contemplated hereby will not involve the violation of any such
laws or regulations, and the Company shall maintain in its
possession, available for the Purchaser's inspection, and shall
deliver to the Purchaser upon demand, evidence of compliance with
all such requirements. All inspections, licenses and certificates
required to be made or issued with respect to all occupied
portions of the Mortgaged Property and, with respect to the use
and occupancy of the same, including but not limited to
certificates of occupancy and fire underwriting certificates, have
been made or obtained from the appropriate authorities;
(x) Location and Type of Mortgaged Property.
The Mortgaged Property is located in the state identified in the
related Mortgage Loan Schedule and consists of a single parcel (or
more than one contiguous parcels) of real property with a detached
single family residence erected thereon, or a two- to four-family
dwelling, or an individual condominium unit in a condominium
project, or an individual unit in a planned unit development or a
townhouse. If the Mortgaged Property is a condominium unit or a
planned unit development (other than a de minimis planned unit
development), such condominium, or planned unit development
project meets the Company's eligibility requirements as set forth
in the Company's underwriting guidelines. No Mortgage Loan is
secured by manufactured housing. As of the related appraisal date
for each Mortgaged Property, no portion of any Mortgaged Property
has been used for commercial purposes outside of the Company's
underwriting guidelines;
(xi) Valid First Lien.
The Mortgage is a valid, subsisting and enforceable first lien on
the Mortgaged Property, including all buildings on the Mortgaged
Property and all installations and mechanical, electrical,
plumbing, heating and air conditioning systems located in or
annexed to such buildings, and all additions, alterations and
replacements made at any time with respect to the foregoing. The
lien of the Mortgage is subject only to:
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(a) the lien of current real property taxes and
assessments not yet due and payable;
(b) covenants, conditions and restrictions, rights of
way, easements and other matters of the public record
as of the date of recording acceptable to mortgage
lending institutions generally and specifically
referred to in the lender's title insurance policy or
attorney's title opinion delivered to the originator
of the Mortgage Loan and (i) referred to or otherwise
considered in the appraisal made for the originator
of the Mortgage Loan and (ii) which do not adversely
affect the Appraised Value of the Mortgaged Property
set forth in such appraisal; and
(c) other matters to which like properties are commonly
subject which do not materially interfere with the
benefits of the security intended to be provided by
the mortgage or the use, enjoyment, value or
marketability of the related Mortgaged Property;
Any security agreement, chattel mortgage or equivalent document
related to and delivered in connection with the Mortgage Loan
establishes and creates a valid, subsisting and enforceable first
lien and first priority security interest on the property
described therein and the Company has full right to sell and
assign the same to the Purchaser;
(xii) Full Disbursement of Proceeds.
The proceeds of the Mortgage Loan have been fully disbursed,
except for escrows established or created due to seasonal weather
conditions, and there is no requirement for future advances
thereunder. All costs, fees and expenses incurred in making or
closing the Mortgage Loan and the recording of the Mortgage were
paid, and the Mortgagor is not entitled to any refund of any
amounts paid or due under the Mortgage Note or Mortgage;
(xiii) Ownership.
The Company is the sole owner of record and holder of the Mortgage
Loan and the related Mortgage Note and the Mortgage are not
assigned or pledged, and the Company has good and marketable title
thereto and has full right and authority to transfer and sell the
Mortgage Loan to the Purchaser. The Company is transferring the
Mortgage Loan free and clear of any and all encumbrances, liens,
pledges, equities, participation interests, claims, charges or
security interests of any nature encumbering such Mortgage Loan;
(xiv) Origination/Doing Business.
The Mortgage Loan was originated by a savings and loan
association, a savings bank, a commercial bank, a credit union, an
insurance company, or similar institution which is supervised and
examined by a federal or state authority or by a mortgagee
approved by the Secretary of Housing and Urban Development
pursuant to Sections 203 and 211 or the National Housing Act. All
parties which have had any interest in the Mortgage Loan, whether
as mortgagee, assignee, pledgee or otherwise, are (or, during the
period in which they held and disposed of such interest, were) (1)
in compliance with any and all
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applicable licensing requirements of the laws of the state wherein
the Mortgaged Property is located, and any qualification
requirements of Xxxxxx Xxx or Xxxxxxx Mac, and (2) organized under
the laws of such state, or (3) qualified to do business in such
state, or (4) federal savings and loan associations or national
banks having principal offices in such state, or (5) not doing
business in such state;
(xv) Title Insurance.
The Mortgage Loan is covered by an ALTA lender's title insurance
policy or other generally acceptable form of policy of insurance
acceptable to Xxxxxx Xxx or Xxxxxxx Mac, issued by a title insurer
acceptable to Xxxxxx Mae or Xxxxxxx Mac and qualified to do
business in the jurisdiction where the Mortgaged Property is
located, insuring the Company, its successors and assigns, as to
the first priority lien of the Mortgage in the original principal
amount of the Mortgage Loan, subject only to the exceptions
contained in clauses (a), (b) and (c) of paragraph (xi) of this
Section 3.02, and against any loss by reason of the invalidity or
unenforceability of the lien resulting from the provisions of the
Mortgage providing for adjustment to the Mortgage Interest Rate
and Monthly Payment; provided, however, that in the case of any
Mortgage Loan secured by a Mortgaged Property located in a
jurisdiction where such policies are generally not available, the
Mortgage Loan is the subject of an opinion of counsel of the type
customarily rendered in such jurisdiction in lieu of title
insurance. The Company is the sole insured of such lender's title
insurance policy, and such lender's title insurance policy is in
full force and effect and will be in force and effect upon the
consummation of the transactions contemplated by this Agreement.
No claims have been made under such lender's title insurance
policy, and no prior holder of the Mortgage, including the
Company, has done, by act or omission, anything which would impair
the coverage of such lender's title insurance policy;
(xvi) No Mechanics' Liens.
There are no mechanics' or similar liens or claims which have been
filed for work, labor or material (and no rights are outstanding
that under the law could give rise to such liens) affecting the
related Mortgaged Property which are or may be liens prior to, or
equal or coordinate with, the lien of the related Mortgage which
are not insured against by the title insurance policy referenced
in clause (xv) above;
(xvii) Location of Improvements; No Encroachments.
Except as insured against by the title insurance policy referenced
in clause (xv) above, all improvements which were considered in
determining the Appraised Value of the Mortgaged Property lay
wholly within the boundaries and building restriction lines of the
Mortgaged Property and no improvements on adjoining properties
encroach upon the Mortgaged Property. No improvement located on or
being part of the Mortgaged Property is in violation of any
applicable zoning law or regulation;
(xviii) Customary Provisions.
The Mortgage and the related Mortgage Note contain customary and
enforceable provisions such as to render the rights and remedies
of the holder thereof adequate for the realization against the
Mortgaged Property of the benefits of the security provided
thereby, including, (i) in the case of a Mortgage designated as a
deed of trust, by trustee's
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sale, and (ii) otherwise by judicial foreclosure. There is no
homestead or other exemption available to a Mortgagor which would
interfere with the right to sell the Mortgaged Property at a
trustee's sale or the right to foreclose the Mortgage;
(xix) Occupancy of the Mortgaged Property.
As of the date of origination, the Mortgaged Property was lawfully
occupied under Applicable Law;
(xx) No Additional Collateral.
The Mortgage Note is not and has not been secured by any
collateral, pledged account or other security except the lien of
the corresponding Mortgage and the security interest of any
applicable security agreement or chattel mortgage referred to in
(xi) above;
(xxi) Deeds of Trust.
In the event that the Mortgage constitutes a deed of trust, a
trustee, duly qualified under Applicable Law to serve as such, has
been properly designated and currently so serves and is named in
the Mortgage, and no fees or expenses are or will become payable
by the Mortgagee to the trustee under the deed of trust, except in
connection with a trustee's sale after default by the Mortgagor;
(xxii) Transfer of Mortgage Loans.
As to any Mortgage Loan which is not a MERS Mortgage Loan, the
Assignment of Mortgage is in recordable form and is acceptable for
recording under the laws of the jurisdiction in which the
Mortgaged Property is located;
(xxiii) Mortgaged Property Undamaged.
The Mortgaged Property is undamaged by waste, water, fire,
earthquake or earth movement, windstorm, flood, tornado or other
casualty so as to affect adversely the value of the Mortgaged
Property as security for the Mortgage Loan or the use for which
the premises were intended;
(xxiv) Collection Practices; Escrow Deposits.
The origination and collection practices used with respect to the
Mortgage Loan have been in accordance with Acceptable Servicing
Practices, and have been in all material respects legal and
proper, and in accordance with the terms of the Mortgage Note and
Mortgage. All Escrow Payments have been collected in full
compliance with state and federal law. An escrow of funds is not
prohibited by Applicable Law and has been established to pay for
every item that remains unpaid and has been assessed but is not
yet due and payable. No escrow deposits or Escrow Payments or
other charges or payments due the Company have been capitalized
under the Mortgage Note. All Mortgage Interest Rate adjustments
have been made in compliance with state and federal law and the
terms of the related Mortgage and Mortgage Note on the related
Interest Rate Adjustment Date;
(xxv) No Condemnation.
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To the best of Company's knowledge, there is no proceeding pending
or threatened for the total or partial condemnation of the related
Mortgaged Property;
(xxvi) The Appraisal.
The Mortgage Loan Documents contain an appraisal of the related
Mortgaged Property, As to each Time$aver(R) Mortgage Loan, the
appraisal may be from the original of the existing
Company-serviced loan, which was refinanced via such Time$aver(R)
Mortgage Loan. The appraisal was conducted by an appraiser who had
no interest, direct or indirect, in the Mortgaged Property or in
any loan made on the security thereof; and whose compensation is
not affected by the approval or disapproval of the Mortgage Loan,
and the appraisal and the appraiser both satisfy the applicable
requirements of Xxxxxx Mae or Xxxxxxx Mac;
(xxvii) Insurance.
The Mortgaged Property securing each Mortgage Loan is insured by
an insurer acceptable to Xxxxxx Mae or Xxxxxxx Mac against loss by
fire, such hazards as are covered under a standard extended
coverage endorsement and such other hazards as are customary in
the area where the Mortgaged Property is located pursuant to
insurance policies conforming to the requirements of Section 4.10,
in an amount which is not less than the lesser of 100% of the
insurable value of the Mortgaged Property and the outstanding
principal balance of the Mortgage Loan, but in no event less than
the minimum amount necessary to fully compensate for any damage or
loss on a replacement cost basis; if the Mortgaged Property is a
condominium unit, it is included under the coverage afforded by a
blanket policy for the project; the insurance policy contains a
standard clause naming the originator of such mortgage loan, its
successor and assigns, as insured mortgagee; if upon origination
of the Mortgage Loan, the improvements on the Mortgaged Property
were in an area identified in the Federal Register by the Federal
Emergency Management Agency as having special flood hazards, a
flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration is in effect
with a generally acceptable insurance carrier, in an amount
representing coverage not less than the least of (A) the
outstanding principal balance of the Mortgage Loan, (B) the full
insurable value and (C) the maximum amount of insurance which was
available under the Flood Disaster Protection Act of 1973, as
amended. All individual insurance policies contain a standard
mortgagee clause naming the Company and its successors and assigns
as mortgagee and all premiums thereon have been paid. The Mortgage
obligates the Mortgagor thereunder to maintain all such insurance
at the Mortgagor's cost and expense, and on the Mortgagor's
failure to do so, authorizes the holder of the Mortgage to obtain
and maintain such insurance at such Mortgagor's cost and expense,
and to seek reimbursement therefor from the Mortgagor. The hazard
insurance policy is the valid and binding obligation of the
insurer, is in full force and effect, and will be in full force
and effect and inure to the benefit of the Purchaser upon the
consummation of the transactions contemplated by this Agreement
and the Company has not acted or failed to act so as to impair the
coverage of any such insurance policy or the validity, binding
effect and enforceability thereof;
(xxviii) Servicemembers' Civil Relief Act.
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The Mortgagor has not notified the Company, and the Company has
no knowledge of any relief requested or allowed to the Mortgagor
under the Servicemembers' Civil Relief Act, as amended;
(xxix) Payment Terms.
The Mortgage Note is payable on the first day of each month in
equal monthly installments of principal and interest, which
installments of interest are subject to change due to the
adjustments to the Mortgage Interest Rate on each Interest Rate
Adjustment Date, with interest calculated and payable in arrears,
sufficient to amortize the Mortgage Loan fully by the stated
maturity date, over an original term of not more than thirty
years from origination and once the amortization period starts,
payments are calculated to fully amortize by maturity. No
Mortgage Loan has a shared appreciation or other contingent
interest feature, or permits negative amortization. The Mortgage
Interest Rate as well as the Lifetime Rate Cap and the Periodic
Rate Cap for each Mortgage Loan are as set forth for such
Mortgage Loan in the Mortgage Loan Schedule;
(xxx) No Defaults.
Except with respect to delinquencies identified on the Mortgage
Loan Schedule, there is no default, breach, violation or event of
acceleration existing under any Mortgage or Mortgage Note and no
event that, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a
default, breach, violation or event of acceleration, and the
Company has not waived any default, breach, violation or event of
acceleration;
(xxxi) Loan-to-Value Ratio; Modifications; No Foreclosures.
The Loan-to-Value Ratio of each Mortgage Loan was less than 100%
at the time of its origination or refinancing, as applicable. No
Mortgage Loan is subject to a written foreclosure agreement or
pending foreclosure proceedings;
(xxxii) Primary Mortgage Insurance.
Each Mortgage Loan with an LTV at origination in excess of 80%
will be subject to a Primary Mortgage Insurance Policy, issued by
an insurer acceptable to Xxxxxx Xxx or Xxxxxxx Mac, in at least
such amounts as are required by Xxxxxxx Mac or Xxxxxx Xxx. All
provisions of such Primary Mortgage Insurance Policy have been
and are being complied with, such policy is in full force and
effect, and all premiums due thereunder have been paid. Any
Mortgage subject to any such Primary Mortgage Insurance Policy
obligates the Mortgagor thereunder to maintain such insurance and
to pay all premiums and charges in connection therewith unless
terminable in accordance with Xxxxxxx Mac standards or Applicable
Law;
(xxxiii) Underwriting Guidelines.
The Mortgage Loan was underwritten in accordance with the
Company's underwriting guidelines in effect at the time of
origination with exceptions thereto exercised in a reasonable
manner;
(xxxiv) No Bankruptcy.
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To the best of the Company's knowledge, no Mortgagor was a debtor
in any state or federal bankruptcy or insolvency proceeding at
the time the Mortgage Loan was originated and as of the related
Closing Date, the Company has not received notice that any
Mortgagor is a debtor under any state or federal bankruptcy or
insolvency proceeding.
(xxxv) No Additional Payments.
There is no obligation on the part of the Company or any other
party to make payments in addition to those made by the
Mortgagor;
(xxxvi) Comparable Custodial Mortgage Loan File.
Each document or instrument in the related Custodial or Retained
Mortgage File, whether delivered to the Custodian or not is in a
form generally acceptable to prudent mortgage lenders that
regularly originate or purchase mortgage loans comparable to the
Mortgage Loans for sale to prudent investors in the secondary
market that invest in mortgage loans such as the Mortgage Loans;
(xxxvii) Contents of the Retained Mortgage File.
The Retained Mortgage File contains the documents listed in
items (5) through (8) of Exhibit B;
(xxxviii) HOEPA.
No Mortgage Loan is a High Cost Loan or Covered Loan;
(xxxix) Fair Credit Reporting Act.
The Company, in its capacity as servicer for each Mortgage Loan,
has fully furnished, in accordance with the Fair Credit
Reporting Act and its implementing regulations, accurate and
complete information (e.g., favorable and unfavorable) on its
borrower credit files to Equifax, Experian and Trans Union
Credit Information Company (three of the credit repositories),
on a monthly basis;
(xl) No Arbitration.
No Mortgage Loan originated on or after August 1, 2004 requires
the related Mortgagor to submit to arbitration to resolve any
dispute arising out of or relating in any way to the Mortgage
Loan transaction;
(xli) No Pledged Assets.
No Mortgage Loan is subject to the Servicer's Pledged Asset
Program;
(xlii) No Credit Insurance Policies.
No Mortgagor was required to purchase any credit life,
disability, accident or health insurance product as a condition
of obtaining the extension of credit. No Mortgagor was required
to obtain a prepaid single premium credit life, disability,
accident or
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health insurance policy in connection with the origination of the
Mortgage Loan; No proceeds from any Mortgage Loan were used to
purchase single premium credit insurance policies as part of the
origination of, or as a condition to closing, such Mortgage Loan;
(xliii) Prepayment Penalty Term.
No Mortgage Loan originated on or after October 1, 2002, will
impose a prepayment premium for a term in excess of three years
after its origination. No Mortgage Loan originated before
October 1, 2002, will impose a prepayment premium for a term in
excess of five years after its origination;
(xliv) Tax Service Contract; Flood Certification Contract.
Each Mortgage Loan shall have a tax service contract and, if
applicable, a flood insurance contract which shall have a term
of the life of the Mortgage Loan. Each such tax service and
flood insurance contract shall be fully transferable without
penalty, premium or cost to the Purchaser or its designee,
unless, with respect to tax service contract, the Company is
terminated pursuant to Section 11.2 hereof;
(xlv) Violation of Environmental Laws.
There is no pending action or proceeding directly involving any
Mortgaged Property of which the Company is aware in which
compliance with any environmental law, rule or regulation is an
issue; and to the best of the Company's knowledge, nothing
further remains to be done to satisfy in full all requirements
of each such law, rule or regulation constituting a prerequisite
to use and enjoyment of said property;
(xlvi) No Buydowns.
No Mortgage Loan contains provisions pursuant to which Monthly
Payments are (a) paid or partially paid with funds deposited in
any separate account established by the Company, the Mortgagor
or anyone on behalf of the Mortgagor, (b) paid by any source
other than the Mortgagor or (c) contains any other similar
provisions which may constitute a "buydown" provision;
(xlvii) Interest Calculation.
Interest on each Mortgage Loan is calculated on the basis of a
360-day year consisting of twelve 30-day months;
(xlviii) The Mortgagor.
The Mortgagor is one or more natural persons and/or trustees for
an Illinois land trust or a trustee under a "living trust" and
such "living trust" is in compliance with the Underwriting
Guidelines;
(xlix) No Construction Loans.
No Mortgage Loan was made in connection with (i) the
construction or rehabilitation of a Mortgage Property or (ii)
facilitating the trade-in or exchange of a Mortgaged
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Property other than a construction-to-permanent loan which has
converted to a permanent Mortgage Loan;
(l) Balloon Payments, Graduated Payments or Contingent
Interests.
No Mortgage Loan is a graduated payment mortgage loan and no
Mortgage Loan has a shared appreciation or other contingent
interest feature. If a Mortgage Loan has a balloon payment
feature, the Mortgage Note is payable in monthly payments based
on a fifteen- or thirty-year amortization schedule and a final
monthly payment substantially greater than the preceding monthly
payment which is sufficient to amortize the remaining principal
of the Mortgage Loan;
(li) Ground Leases.
With respect to each Mortgage Loan that is secured in whole or
in part by the interest of the mortgagor as a lessee under a
ground lease of the related Mortgaged Property (a "Ground
Lease") and not by a fee interest in such Mortgaged Property and
as further specified in the underwriting guidelines of the
Company:
(a) The mortgagor is the owner of a valid and subsisting
interest as tenant under the Ground Lease;
(b) The Ground Lease is in full force and effect,
unmodified and not supplemented by any writing or
otherwise;
(c) The Company has not received notice of default by the
mortgagor under the Ground Lease or of circumstances
which, with the passage of time or the giving of
notice or both, would constitute an event of default;
(d) The term of the Ground Lease exceeds the maturity date
of the related Mortgage Loan by at least five years;
(e) The Ground Lease or a memorandum thereof has been
recorded and by its terms permits the leasehold estate
to be mortgaged;
(f) The Ground Lease does not contain any default
provisions that could give rise to forfeiture or
termination of the Ground Lease except for the
non-payment of the Ground Lease rents;
(g) The execution, delivery and performance of the
Mortgage do not require the consent (other than those
consents which have been obtained and are in full
force and effect) under, and will not contravene any
provision of or cause a default under, the Ground
Lease; and
(h) The Ground Lease provides that the leasehold can be
transferred, mortgaged and sublet an unlimited number
of times either without restriction or on payment of a
reasonable fee and delivery of reasonable
documentation to the lessor.
(lii) Conversion.
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The Adjustable Rate Mortgage Loan is not a Convertible Mortgage
Loan;
(liii) Anti-Money Laundering Laws.
With respect to each Mortgage Loan, the Company has complied
with all applicable anti-money laundering laws and regulations
(the "Anti-Money Laundering Laws"), and has established an
anti-money laundering compliance program as required by the
applicable Anti-Money Laundering Laws, and maintains, and will
maintain, sufficient information to identify the applicable
Mortgagor for purposes of the Anti-Money Laundering Laws; and
(liv) Due on Sale.
The Mortgage or Mortgage Note contains an enforceable provision,
to the extent not prohibited by federal law, for the
acceleration of the payment of the unpaid principal balance of
the related Mortgage Loan in the event the related Mortgaged
Property is sold without the prior consent of the mortgagee
thereunder; provided that, with respect to Mortgage Notes which
bear an adjustable rate of interest, such provision shall not be
enforceable if the Mortgagor causes to be submitted to the
Company to evaluate the intended transferee as if a new Mortgage
Loan were being made to such transferee, and the Company
reasonably determines that the security will not be impaired by
such Mortgage Loan assumption and that the risk of breach of any
covenant or agreement in such Mortgage is acceptable to the
Purchaser.
Section 3.3 Repurchase.
It is understood and agreed that the representations and warranties set
forth in Sections 3.1 and 3.2 shall survive the sale of the Mortgage Loans to
the Purchaser and the delivery of the Mortgage Loan Documents to the Custodian
and shall inure to the benefit of the Purchaser, notwithstanding any
restrictive or qualified endorsement on any Mortgage Note or Assignment of
Mortgage or the examination or failure to examine any Custodial Mortgage File
or Retained Mortgage File. Upon discovery by either the Company or the
Purchaser of a breach of any of the foregoing representations and warranties
which materially and adversely affects the value of the Mortgage Loans or the
interest of the Purchaser (or which materially and adversely affects the
interests of Purchaser in the related Mortgage Loan in the case of a
representation and warranty relating to a particular Mortgage Loan), the party
discovering such breach shall give prompt written notice to the other.
Within 90 days of the earlier of either discovery by or notice to the
Company of any breach of a representation or warranty which materially and
adversely affects the value of the Mortgage Loans, (i) the Company shall use
its best efforts promptly to cure such breach in all material respects and
(ii) if such breach cannot be cured, the Company shall, at the Purchaser's
option, repurchase such Mortgage Loan at the Repurchase Price. In the event
that a breach shall involve any representation or warranty set forth in
Section 3.1, and such breach cannot be cured within 90 days of the earlier of
either discovery by or notice to the Company of such breach, all of the
Mortgage Loans shall, at the Purchaser's option, be repurchased by the Company
at the Repurchase Price. Any repurchase of a Mortgage Loan or Loans pursuant
to the foregoing provisions of this Section 3.3 shall be accomplished by
deposit in the Custodial Account of the amount of the Repurchase Price as
required in Section 4.4, for distribution to Purchaser on the Remittance Date
for the month following the date of the repurchase, after deducting therefrom
any amount received in respect of such repurchased Mortgage Loan or Loans and
being held in the Custodial Account for future distribution for application in
accordance with Section 5.1.
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Notwithstanding the above paragraphs, within 60 days of the earlier of
either discovery by, or notice to, the Company of any breach of the
representations or warranties set forth in clauses, (xxxviii), (xl) or (xlvi)
of Section 3.2, the Company shall repurchase such Mortgage Loan at the
Repurchase Price.
If pursuant to the foregoing provisions the Company repurchases a
Mortgage Loan that is a MERS Mortgage Loan, the Company shall either (i) cause
MERS to execute and deliver an assignment of the Mortgage in recordable form
to transfer the Mortgage from MERS to the Company on behalf of the Purchaser
and shall cause such Mortgage to be removed from registration on the MERS(R)
System in accordance with MERS' rules and regulations or (ii) cause MERS to
designate on the MERS(R) System the Purchaser as the beneficial holder with
respect to such Mortgage Loan.
At the time of repurchase, the Purchaser and the Company shall arrange
for the reassignment of the repurchased Mortgage Loan to the Company and the
delivery to the Company of any documents held by the Custodian relating to the
repurchased Mortgage Loan. In the event of a repurchase, the Company shall,
simultaneously with such reassignment, give written notice to the Purchaser
that such repurchase has taken place and amend the Mortgage Loan Schedule to
reflect the withdrawal of the repurchased Mortgage Loan from this Agreement.
In addition to such repurchase obligation, the Company shall indemnify
the Purchaser and hold it harmless against any losses, damages, penalties,
fines, forfeitures, reasonable and necessary legal fees and related costs,
judgments, and other costs and expenses resulting from any claim, demand,
defense or assertion based on or grounded upon, or resulting from, a breach of
the Company's representations and warranties contained in this Agreement. It
is understood and agreed that the obligations of the Company set forth in this
Section 3.3 to cure or repurchase a defective Mortgage Loan and to indemnify
the Purchaser as provided in this Section 3.3, constitute the sole remedies of
the Purchaser respecting a breach of the foregoing representations and
warranties.
Any cause of action against the Company relating to or arising out of
the breach of any representations and warranties made in Sections 3.1 and 3.2
shall accrue as to any Mortgage Loan upon the earliest of (i) discovery of
such breach by the Company or the Purchaser or notice thereof by the Purchaser
to the Company, (ii) failures by the Company to cure such breach or repurchase
such Mortgage Loan as specified above, and (iii) demand upon the Company by
the Purchaser for compliance with this Agreement.
ARTICLE IV
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 4.1 Company to Act as Servicer.
The Company, as an independent contractor, shall service and administer
the Mortgage Loans and shall have full power and authority, acting alone or
through the utilization of a third party servicing provider, to do any and all
things in connection with such servicing and administration which the Company
may deem necessary or desirable, consistent with the terms of this Agreement
and with Accepted Servicing Practices. The Servicer shall be responsible for
any and all acts of a third party servicing provider, and the Servicer's
utilization of a third party servicing provider shall in no way relieve the
liability of the Servicer under this Agreement.
Consistent with the terms of this Agreement and subject to the REMIC
Provisions if the Mortgage Loans have been transferred to a REMIC, the Company
may waive, modify or vary any term of any Mortgage Loan or consent to the
postponement of strict compliance with any such term or in any
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manner grant indulgence to any Mortgagor if in the Company's reasonable and
prudent determination such waiver, modification, postponement or indulgence is
not materially adverse to the Purchaser. In the event of any such modification
which permits the deferral of interest or principal payments on any Mortgage
Loan, the Company shall, on the Business Day immediately preceding the
Remittance Date in any month in which any such principal or interest payment
has been deferred, deposit in the Custodial Account from its own funds, in
accordance with Section 5.3, the difference between (a) such month's principal
and one month's interest at the Mortgage Loan Remittance Rate on the unpaid
principal balance of such Mortgage Loan and (b) the amount paid by the
Mortgagor. The Company shall be entitled to reimbursement for such advances to
the same extent as for all other advances made pursuant to Section 5.3.
Without limiting the generality of the foregoing, the Company shall continue,
and is hereby authorized and empowered, to execute and deliver on behalf of
itself and the Purchaser, all instruments of satisfaction or cancellation, or
of partial or full release, discharge and all other comparable instruments,
with respect to the Mortgage Loans and with respect to the Mortgaged
Properties. If reasonably required by the Company, the Purchaser shall furnish
the Company with any powers of attorney and other documents necessary or
appropriate to enable the Company to carry out its servicing and
administrative duties under this Agreement.
In servicing and administering the Mortgage Loans, the Company shall
employ procedures (including collection procedures) and exercise the same care
that it customarily employs and exercises in servicing and administering
mortgage loans for its own account, giving due consideration to Accepted
Servicing Practices where such practices do not conflict with the requirements
of this Agreement, and the Purchaser's reliance on the Company.
Notwithstanding anything to the contrary contained herein, the Company
shall not waive a prepayment penalty except under the following circumstances:
(i) such waiver would, in the reasonable judgment of the Company, maximize
recovery of total proceeds taking into account the value of such prepayment
penalty and the related Mortgage Loan and, if such waiver is made in
connection with a refinancing of the related Mortgage Loan, such refinancing
is related to a default or a reasonably foreseeable default; or (ii) the
Company obtains a written Opinion of Counsel, which may be in-house counsel
for the Company, opining that any prepayment penalty or charge is not legally
enforceable in the circumstances under which the related Principal Prepayment
occurs. In the event the Company waives any prepayment penalty, other than as
set forth in (i) and (ii) above, the Company shall deposit the amount of any
such prepayment penalty in the Custodial Account for distribution to the
Purchaser on the next Remittance Date.
The Company is authorized and empowered by the Purchaser, in its own
name, when the Company believes it appropriate in its reasonable judgment to
register any Mortgage Loan on the MERS(R) System, or cause the removal from
the registration of any Mortgage Loan on the MERS(R) System, to execute and
deliver, on behalf of the Purchaser, any and all instruments of assignment and
other comparable instruments with respect to such assignment or re-recording
of a Mortgage in the name of MERS, solely as nominee for the Purchaser and its
successors and assigns. The Company will comply in all material respects with
the rules and procedures of MERS in connection with the servicing of the MERS
Mortgage Loans for as long as such Mortgage Loans are registered with MERS.
Section 4.2 Liquidation of Mortgage Loans.
In the event that any payment due under any Mortgage Loan and not
postponed pursuant to Section 4.1 is not paid when the same becomes due and
payable, or in the event the Mortgagor fails to perform any other covenant or
obligation under the Mortgage Loan and such failure continues beyond any
applicable grace period, the Company shall take such action as (1) the Company
would take under similar circumstances with respect to a similar mortgage loan
held for its own account for investment, (2) shall be
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consistent with Accepted Servicing Practices, and (3) the Company shall
determine prudently to be in the best interest of Purchaser. In the event that
any payment due under any Mortgage Loan is not postponed pursuant to Section
4.1 and remains delinquent for a period of 90 days or any other default
continues for a period of 90 days beyond the expiration of any grace or cure
period, the Company shall commence foreclosure proceedings, the Company shall
notify the Purchaser in writing of the Company's intention to do so, and the
Company shall not commence foreclosure proceedings if the Purchaser objects to
such action within three (3) Business Days of receiving such notice. In the
event the Purchaser objects to such foreclosure action, the Company shall not
be required to make Monthly Advances with respect to such Mortgage Loan,
pursuant to Section 5.3, and the Company's obligation to make such Monthly
Advances shall terminate on the 90th day referred to above. In such
connection, the Company shall from its own funds make all necessary and proper
Servicing Advances, provided, however, that the Company shall not be required
to expend its own funds in connection with any foreclosure or towards the
restoration or preservation of any Mortgaged Property, unless it shall
determine (a) that such preservation, restoration and/or foreclosure will
increase the proceeds of liquidation of the Mortgage Loan to Purchaser after
reimbursement to itself for such expenses and (b) that such expenses will be
recoverable by it either through Liquidation Proceeds (respecting which it
shall have priority for purposes of withdrawals from the Custodial Account
pursuant to Section 4.5) or through Insurance Proceeds (respecting which it
shall have similar priority).
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 Company has reasonable cause to believe that a Mortgaged Property is
contaminated by hazardous or toxic substances or wastes, or if the Purchaser
otherwise requests an environmental inspection or review of such Mortgaged
Property, such an inspection or review is to be conducted by a qualified
inspector. The cost for such inspection or review shall be borne by the
Purchaser. Upon completion of the inspection or review, the Company shall
promptly provide the Purchaser with a written report of the environmental
inspection.
After reviewing the environmental inspection report, the Purchaser shall
determine how the Company shall 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 Purchaser directs the Company to proceed with foreclosure
or acceptance of a deed in lieu of foreclosure, the Company 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 Company, the
Company shall be entitled to be reimbursed from amounts in the Custodial
Account pursuant to Section 4.5 hereof. In the event the Purchaser directs the
Company not to proceed with foreclosure or acceptance of a deed in lieu of
foreclosure, the Company shall be reimbursed for all Servicing Advances made
with respect to the related Mortgaged Property from the Custodial Account
pursuant to Section 4.5 hereof.
Section 4.3 Collection of Mortgage Loan Payments.
Continuously from the date hereof until the principal and interest on
all Mortgage Loans are paid in full, the Company shall proceed diligently to
collect all payments due under each of the Mortgage Loans when the same shall
become due and payable in accordance with Accepted Servicing Practices, and
shall, in accordance with RESPA and applicable state law, take special care in
ascertaining and estimating Escrow Payments and all other charges that will
become due and payable with respect to the Mortgage Loan and the Mortgaged
Property, to the end that the installments payable by the Mortgagors will be
sufficient to pay such charges as and when they become due and payable.
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Section 4.4 Establishment of and Deposits to Custodial Account.
The Company shall segregate and hold all funds collected and received
pursuant to a Mortgage Loan separate and apart from any of its own funds and
general assets and shall establish and maintain one or more Custodial
Accounts, in the form of time deposit or demand accounts, titled "Xxxxx Fargo
Bank, N.A., in trust for the Purchaser of Residential Mortgage Loans serviced
under a Seller's Warranties and Servicing Agreement, dated as of August 1,
2004, and various Mortgagors - P & I", or as otherwise directed in writing by
the Purchaser or its assigns after the related Closing Date in connection with
any Whole Loan Transfer or Pass-Through Transfer. The Custodial Account shall
be established with a Qualified Depository. Upon request of the Purchaser and
within ten (10) days thereof, the Company shall provide the Purchaser with
written confirmation of the existence of such Custodial Account. The Custodial
Account shall at all times be insured to the fullest extent allowed by
Applicable Law. Funds deposited in the Custodial Account may be drawn on by
the Company in accordance with Section 4.5.
The Company shall deposit in the Custodial Account within one Business
Day (or two Business Days in the case of the amounts described in clauses
(iii) through (v) below) of the Company's receipt, and retain therein, the
following collections received by the Company and payments made by the Company
after the related Cut-off Date, other than payments of principal and interest
due on or before the related Cut-off Date:
(1) all payments on account of principal on the Mortgage
Loans, including all Principal Prepayments;
(2) all payments on account of interest on the Mortgage
Loans, adjusted to the Mortgage Loan Remittance Rate;
(3) all Liquidation Proceeds;
(4) all Insurance Proceeds including amounts required to be
deposited pursuant to Section 4.10 (other than proceeds to be held in
the Escrow Account and applied to the restoration or repair of the
Mortgaged Property or released to the Mortgagor in accordance with
Section 4.14), Section 4.11 and Section 4.15;
(5) all Condemnation Proceeds which are not applied to the
restoration or repair of the Mortgaged Property or released to the
Mortgagor in accordance with Section 4.14;
(6) any amount required to be deposited in the Custodial
Account pursuant to Section 4.1, 5.1, 5.3, 6.1 or 6.2;
(7) any amounts payable in connection with the repurchase of
any Mortgage Loan pursuant to Section 2.3, 3.3 or 6.2;
(8) with respect to each Principal Prepayment an amount (to
be paid by the Company out of its funds) which, when added to all
amounts allocable to interest received in connection with the Principal
Prepayment, equals one month's interest on the amount of principal so
prepaid at the Mortgage Loan Remittance Rate;
(9) any amounts required to be deposited by the Company
pursuant to Section 4.11 in connection with the deductible clause in any
blanket hazard insurance policy; and
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(10) any amounts received with respect to or related to any
REO Property and all REO Disposition Proceeds pursuant to Section 4.16.
The foregoing requirements for deposit into the Custodial Account shall
be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of late payment charges
and assumption fees, to the extent permitted by Section 6.1, need not be
deposited by the Company into the Custodial Account. Any interest paid on
funds deposited in the Custodial Account by the depository institution shall
accrue to the benefit of the Company and the Company shall be entitled to
retain and withdraw such interest from the Custodial Account pursuant to
Section 4.5. The Company shall reimburse the Custodial Account for any losses
incurred as a result of the investment of amounts on deposit in the Custodial
Account.
Section 4.5 Permitted Withdrawals From Custodial Account.
The Company shall, from time to time, withdraw funds from the Custodial
Account for the following purposes:
(1) to make payments to the Purchaser in the amounts and in
the manner provided for in Section 5.1;
(2) to reimburse itself for Monthly Advances of the
Company's funds made pursuant to Section 5.3, the Company's right to
reimburse itself pursuant to this subclause (2) being limited to amounts
received on the related Mortgage Loan which represent late payments of
principal and/or interest respecting which any such advance was made, it
being understood that, in the case of any such reimbursement, the
Company's right thereto shall be prior to the rights of Purchaser,
except that, where the Company is required to repurchase a Mortgage Loan
pursuant to Section 2.3, 3.3 or 6.2, the Company's right to such
reimbursement shall be subsequent to the payment to the Purchaser of the
Repurchase Price pursuant to such sections and all other amounts
required to be paid to the Purchaser with respect to such Mortgage Loan;
(3) to reimburse itself for unreimbursed Servicing Advances,
and for any unpaid Servicing Fees, the Company's right to reimburse
itself pursuant to this subclause (3) with respect to any Mortgage Loan
being limited to related Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds and such other amounts as may be collected by the
Company from the Mortgagor or otherwise relating to the Mortgage Loan,
it being understood that, in the case of any such reimbursement, the
Company's right thereto shall be prior to the rights of Purchaser,
except that where the Company is required to repurchase a Mortgage Loan
pursuant to Section 2.3, 3.3 or 6.2, in which case the Company's right
to such reimbursement shall be subsequent to the payment to the
Purchaser of the Repurchase Price pursuant to such sections and all
other amounts required to be paid to the Purchaser with respect to such
Mortgage Loan;
(4) to pay itself as servicing compensation any interest on
funds deposited in the Custodial Account;
(5) to reimburse itself for expenses incurred to the extent
reimbursable pursuant to Section 8.1;
(6) to pay any amount required to be paid pursuant to
Section 4.16 related to any REO Property, it being understood that, in
the case of any
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such expenditure or withdrawal related to a particular REO Property, the
amount of such expenditure or withdrawal from the Custodial Account
shall be limited to amounts on deposit in the Custodial Account with
respect to the related REO Property;
(7) to reimburse itself for any Servicing Advances or REO
expenses after liquidation of the Mortgaged Property not otherwise
reimbursed above;
(8) to reimburse the trustee with respect to any
Pass-Through Transfer for any unreimbursed Monthly Advances or Servicing
Advances made by the Trustee, as applicable, the right to reimbursement
pursuant to this subclause (8) with respect to any Mortgage Loan being
limited to related Liquidation Proceeds, proceeds of REO Dispositions,
Condemnation Proceeds, Insurance Proceeds and such other amounts as may
be collected by the Company from the Mortgagor or otherwise relating to
the Mortgage Loan, it being understood that, in the case of such
reimbursement, such trustee's right thereto shall be prior to the rights
of the Company to reimbursement under (2) and (3), and prior to the
rights of the Purchaser under (1);
(9) to remove funds inadvertently placed in the Custodial
Account by the Company; and
(10) to clear and terminate the Custodial Account upon the
termination of this Agreement.
In the event that the Custodial Account is interest bearing, on each
Remittance Date, the Company shall withdraw all interest earned on funds on
deposit in the Custodial Account. The Company may use such withdrawn funds
only for the purposes described in this Section 4.5.
Section 4.6 Establishment of and Deposits to Escrow Account.
The Company shall segregate and hold all funds collected and received
pursuant to a Mortgage Loan constituting Escrow Payments separate and apart
from any of its own funds and general assets and shall establish and maintain
one or more Escrow Accounts, in the form of time deposit or demand accounts,
titled, "Xxxxx Fargo Bank, N.A., in trust for the Purchaser under the Seller's
Warranties and Servicing Agreement dated as of August 1, 2004 and/or
subsequent purchasers of Mortgage Loans, and various Mortgagors - T & I." The
Escrow Accounts shall be established with a Qualified Depository, in a manner
which shall provide maximum available insurance thereunder. Upon request of
the Purchaser and within ten (10) days thereof, the Company shall provide the
Purchaser with written confirmation of the existence of such Escrow Account.
Funds deposited in the Escrow Account may be drawn on by the Company in
accordance with Section 4.7.
The Company shall deposit in the Escrow Account or Accounts within two
(2) Business Days of the Company's receipt, and retain therein:
(1) all Escrow Payments collected on account of the Mortgage
Loans, for the purpose of effecting timely payment of any such items as
required under the terms of this Agreement;
(2) all amounts representing Insurance Proceeds or
Condemnation Proceeds which are to be applied to the restoration or
repair of any Mortgaged Property; and
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(3) all amounts representing proceeds of any Primary
Mortgage Insurance Policy.
The Company shall make withdrawals from the Escrow Account only to
effect such payments as are required under this Agreement, as set forth in
Section 4.7. The Company shall be entitled to retain any interest paid on
funds deposited in the Escrow Account by the depository institution, other
than interest on escrowed funds required by law to be paid to the Mortgagor.
To the extent required by law, the Company shall pay interest on escrowed
funds to the Mortgagor notwithstanding that the Escrow Account may be
non-interest bearing or that interest paid thereon is insufficient for such
purposes. The Company shall reimburse the Escrow Account for any losses
incurred as a result of the investment of amounts on deposit in the Escrow
Account.
Section 4.7 Permitted Withdrawals From Escrow Account.
Withdrawals from the Escrow Account or Accounts may be made by the
Company only:
(1) to effect timely payments of ground rents, taxes,
assessments, water rates, mortgage insurance premiums, condominium
charges, fire and hazard insurance premiums or other items constituting
Escrow Payments for the related Mortgage;
(2) to reimburse the Company for any Servicing Advances made
by the Company pursuant to Section 4.8 with respect to a related
Mortgage Loan, but only from amounts received on the related Mortgage
Loan which represent late collections of Escrow Payments thereunder;
(3) to refund to any Mortgagor any funds found to be in
excess of the amounts required under the terms of the related Mortgage
Loan;
(4) for transfer to the Custodial Account and application to
reduce the principal balance of the Mortgage Loan in accordance with the
terms of the related Mortgage and Mortgage Note;
(5) for application to restoration or repair of the
Mortgaged Property in accordance with the procedures outlined in Section
4.14;
(6) to pay to the Company, or any Mortgagor to the extent
required by law, any interest paid on the funds deposited in the Escrow
Account;
(7) to remove funds inadvertently placed in the Escrow
Account by the Company;
(8) to apply the proceeds of Primary Mortgage Insurance as
if such proceeds were payments on, or Liquidation Proceeds of, the
related Mortgage Loan, as the case may be; and
(9) to clear and terminate the Escrow Account on the
termination of this Agreement.
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Section 4.8 Payment of Taxes, Insurance and Other Charges.
With respect to each Mortgage Loan, the Company shall maintain accurate
records reflecting the status of ground rents, taxes, assessments, water
rates, sewer rents, and other charges which are or may become a lien upon the
Mortgaged Property and fire and hazard insurance coverage and shall obtain,
from time to time, all bills for the payment of such charges (including
renewal premiums) and shall effect payment thereof prior to the applicable
penalty or termination date, employing for such purpose deposits of the
Mortgagor in the Escrow Account which shall have been estimated and
accumulated by the Company in amounts sufficient for such purposes, as allowed
under the terms of the Mortgage. The Company assumes full responsibility for
the timely payment of all such bills and shall effect timely payment of all
such charges irrespective of each Mortgagor's faithful performance in the
payment of same or the making of the Escrow Payments, and the Company shall
make advances from its own funds to effect such payments.
Section 4.9 Protection of Accounts.
The Company may transfer the Custodial Account or the Escrow Account to
a different Qualified Depository from time to time, upon prior written notice
to the Purchaser.
Section 4.10 Maintenance of Hazard Insurance.
The Company shall cause to be maintained for each Mortgage Loan hazard
insurance such that all buildings upon the Mortgaged Property are insured by
an insurer acceptable to Xxxxxx Xxx or Xxxxxxx Mac, against loss by fire,
hazards of extended coverage and such other hazards as are customary in the
area where the Mortgaged Property is located, in an amount which is at least
equal to the lesser of (i) the maximum insurable value of the improvements
securing such Mortgage Loan and (ii) the greater of (a) the outstanding
principal balance of the Mortgage Loan and (b) an amount such that the
proceeds thereof shall be sufficient to prevent the Mortgagor or the loss
payee from becoming a co-insurer. In the event a hazard insurance policy shall
be in danger of being terminated, or in the event the insurer shall cease to
be acceptable to Xxxxxx Mae or Xxxxxxx Mac, the Company shall notify the
Purchaser and the related Mortgagor, and shall use its best efforts, as
permitted by Applicable Law, to obtain from another Qualified Insurer a
replacement hazard insurance policy substantially and materially similar in
all respects to the original policy. In no event, however, shall a Mortgage
Loan be without a hazard insurance policy at any time, subject only to Section
4.11 hereof.
If upon origination of the Mortgage Loan, the related Mortgaged Property
was located in an area identified by the Flood Emergency Management Agency as
having special flood hazards (and such flood insurance has been made
available) a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration is in effect with a
generally acceptable insurance carrier acceptable to Xxxxxx Mae or Xxxxxxx
Mac, in an amount representing coverage equal to the lesser of (i) the minimum
amount required, under the terms of coverage, to compensate for any damage or
loss on a replacement cost basis (or the unpaid balance of the mortgage if
replacement cost coverage is not available for the type of building insured)
and (ii) the maximum amount of insurance which is available under the Flood
Disaster Protection Act of 1973, as amended.
If a Mortgage is secured by a unit in a condominium project, the Company
shall verify that the coverage required of the owner's association, including
hazard, flood, liability, and fidelity coverage, is being maintained in
accordance with then current Xxxxxx Mae or Xxxxxxx Mac requirements, secure
from the owner's association its agreement to notify the Company promptly of
any change in the insurance coverage or of any condemnation or casualty loss
that may have a material effect on the value of the Mortgaged Property as
security.
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In the event that any Purchaser or the Company shall determine that the
Mortgaged Property should be insured against loss or damage by hazards and
risks not covered by the insurance required to be maintained by the Mortgagor
pursuant to the terms of the Mortgage, the Company shall communicate and
consult with the Mortgagor with respect to the need for such insurance and
bring to the Mortgagor's attention the desirability of protection of the
Mortgaged Property.
All policies required hereunder shall name the Company as loss payee and
shall be endorsed with standard or union mortgagee clauses, without
contribution, which shall provide for at least 30 days prior written notice of
any cancellation, reduction in amount or material change in coverage.
The Company shall not interfere with the Mortgagor's freedom of choice
in selecting either his insurance carrier or agent, provided, however, that
the Company shall not accept any such insurance policies from insurance
companies unless such companies are acceptable to Xxxxxx Mae and Xxxxxxx Mac
and are licensed to do business in the jurisdiction in which the Mortgaged
Property is located. The Company shall determine that such policies provide
sufficient risk coverage and amounts, that they insure the property owner, and
that they properly describe the property address.
Pursuant to Section 4.4, any amounts collected by the Company under any
such policies (other than amounts to be deposited in the Escrow Account and
applied to the restoration or repair of the related Mortgaged Property, or
property acquired in liquidation of the Mortgage Loan, or to be released to
the Mortgagor, in accordance with the Company's normal servicing procedures as
specified in Section 4.4) shall be deposited in the Custodial Account subject
to withdrawal pursuant to Section 4.5.
Section 4.11 Maintenance of Primary Mortgage Insurance Policy; Claims..
With respect to each Mortgage Loan with a LTV in excess of 80%, the
Company shall, without any cost to the Purchaser, maintain or cause the
Mortgagor to maintain in full force and effect a Primary Mortgage Insurance
Policy insuring that portion of the Mortgage Loan in excess of a percentage in
conformance with Xxxxxx Mae and Xxxxxxx Mac requirements. The Company shall
pay or shall cause the Mortgagor to pay the premium thereon on a timely basis,
at least until the LTV of such Mortgage Loan is reduced to 80%, or such amount
as required by Applicable Law, or such other amount as Xxxxxx Mae and Xxxxxxx
Mac permits for cancellation of mortgage insurance. In the event that such
Primary Mortgage Insurance Policy shall be terminated, the Company shall
obtain from another insurer a comparable replacement policy, with a total
coverage equal to the remaining coverage of such terminated Primary Mortgage
Insurance Policy. If the insurer shall cease to be a qualified insurer, the
Company shall determine whether recoveries under the Primary Mortgage
Insurance Policy are jeopardized for reasons related to the financial
condition of such insurer, it being understood that the Company shall in no
event have any responsibility or liability for any failure to recover under
the Primary Mortgage Insurance Policy for such reason. If the Company
determines that recoveries are so jeopardized, it shall notify the Purchaser
and the Mortgagor, if required, and obtain from another qualified insurer a
replacement insurance policy. The Company shall not take any action which
would result in noncoverage under any applicable Primary Mortgage Insurance
Policy of any loss which, but for the actions of the Company would have been
covered thereunder. In connection with any assumption or substitution
agreement entered into or to be entered into pursuant to Subsection 6.1, the
Company shall promptly notify the insurer under the related Primary Mortgage
Insurance Policy, if any, of such assumption or substitution of liability in
accordance with the terms of such Primary Mortgage Insurance Policy and shall
take all actions which may be required by such insurer as a condition to the
continuation of coverage under such Primary Mortgage Insurance Policy. If such
Primary Mortgage Insurance Policy is terminated as a result of such assumption
or substitution of liability, the Company shall obtain a replacement Primary
Mortgage Insurance Policy as provided above.
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In connection with its activities as servicer, the Company agrees to
prepare and present, on behalf of itself and the Purchaser, claims to the
insurer under any Primary Mortgage Insurance Policy in a timely fashion in
accordance with the terms of such Primary Mortgage Insurance Policy and, in
this regard, to take such action as shall be necessary to permit recovery
under any Primary Mortgage Insurance Policy respecting a defaulted Mortgage
Loan. Pursuant to Section 4.6, any amounts collected by the Company under any
Primary Mortgage Insurance Policy shall be deposited in the Escrow Account,
subject to withdrawal pursuant to Section 4.7.
Section 4.12 Maintenance of Mortgage Impairment Insurance.
In the event that the Company shall obtain and maintain a blanket policy
insuring against losses arising from fire and hazards covered under extended
coverage on all of the Mortgage Loans, then, to the extent such policy
provides coverage in an amount equal to the amount required pursuant to
Section 4.10 and otherwise complies with all other requirements of Section
4.10, it shall conclusively be deemed to have satisfied its obligations as set
forth in Section 4.10. The Company shall prepare and make any claims on the
blanket policy as deemed necessary by the Company in accordance with Accepted
Servicing Practices. Any amounts collected by the Company under any such
policy relating to a Mortgage Loan shall be deposited in the Custodial Account
subject to withdrawal pursuant to Section 4.5. Such policy may contain a
deductible clause, in which case, in the event that there shall not have been
maintained on the related Mortgaged Property a policy complying with Section
4.10, and there shall have been a loss which would have been covered by such
policy, the Company shall deposit in the Custodial Account at the time of such
loss the amount not otherwise payable under the blanket policy because of such
deductible clause, such amount to be deposited from the Company's funds,
without reimbursement therefor. Upon request of any Purchaser, the Company
shall cause to be delivered to such Purchaser a certified true copy of such
policy and a statement from the insurer thereunder that such policy shall in
no event be terminated or materially modified without 30 days' prior written
notice to such Purchaser.
Section 4.13 Maintenance of Fidelity Bond and Errors and Omissions
Insurance.
The Company shall maintain with responsible companies, at its own
expense, a blanket Fidelity Bond and an Errors and Omissions Insurance Policy,
with broad coverage on all officers, employees or other persons acting in any
capacity requiring such persons to handle funds, money, documents or papers
relating to the Mortgage Loans ("Company Employees"). Any such Fidelity Bond
and Errors and Omissions Insurance Policy shall be in the form of the Mortgage
Banker's Blanket Bond and shall protect and insure the Company against losses,
including forgery, theft, embezzlement, fraud, errors and omissions and
negligent acts of such Company Employees. Such Fidelity Bond and Errors and
Omissions Insurance Policy also shall protect and insure the Company against
losses in connection with the release or satisfaction of a Mortgage Loan
without having obtained payment in full of the indebtedness secured thereby.
No provision of this Section 4.13 requiring such Fidelity Bond and Errors and
Omissions Insurance Policy shall diminish or relieve the Company from its
duties and obligations as set forth in this Agreement. The minimum coverage
under any such bond and insurance policy shall be at least equal to the
amounts acceptable to Xxxxxx Mae or Xxxxxxx Mac. Upon the request of any
Purchaser, the Company shall cause to be delivered to such Purchaser a
certified true copy of such fidelity bond and insurance policy and a statement
from the surety and the insurer that such fidelity bond and insurance policy
shall in no event be terminated or materially modified without 30 days' prior
written notice to the Purchaser.
Section 4.14 Inspections.
If any Mortgage Loan is more than 45 days delinquent, the Company or its
agent shall inspect the Mortgaged Property as promptly as practicable after
the 45th day of delinquency and shall conduct
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subsequent inspections in accordance with Accepted Servicing Practices or as
may be required by the primary mortgage guaranty insurer. The Company shall
keep a record of each such inspection and, upon request, shall provide the
Purchaser with such information.
Section 4.15 Restoration of Mortgaged Property.
The Company need not obtain the approval of the Purchaser prior to
releasing any Insurance Proceeds or Condemnation Proceeds to the Mortgagor to
be applied to the restoration or repair of the Mortgaged Property if such
release is in accordance with Accepted Servicing Practices. For claims greater
than $15,000, at a minimum the Company shall comply with the following
conditions in connection with any such release of Insurance Proceeds or
Condemnation Proceeds:
(1) the Company shall receive satisfactory independent
verification of completion of repairs and issuance of any required
approvals with respect thereto;
(2) the Company shall take all steps necessary to preserve
the priority of the lien of the Mortgage, including, but not limited to
requiring waivers with respect to mechanics' and materialmen's liens;
(3) the Company shall verify that the Mortgage Loan is not
in default; and
(4) pending repairs or restoration, the Company shall place
the Insurance Proceeds or Condemnation Proceeds in the Escrow Account.
If the Purchaser is named as an additional loss payee, the Company is
hereby empowered to endorse any loss draft issued in respect of such a claim
in the name of the Purchaser.
Section 4.16 Claims.
In connection with its activities as servicer, the Company agrees to
prepare and present, on behalf of itself and the Purchaser, claims to the
insurer in a timely fashion and, in this regard, to take such action as shall
be necessary to permit recovery respecting a defaulted Mortgage Loan. Pursuant
to Section 4.04, any amounts collected by the Company under any guaranty shall
be deposited in the Custodial Account, subject to withdrawal pursuant to
Section 4.5.
Section 4.17 Title, Management and Disposition of REO Property.
In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be taken in the name of the Company, or in the event the Company is not
authorized or permitted to hold title to real property in the state where the
REO Property is located, or would be adversely affected under the "doing
business" or tax laws of such state by so holding title, or the perfection of
the ownership or security interest of the Purchaser in such REO Property would
be adversely effected, the deed or certificate of sale shall be taken in the
name of such Person or Persons as shall be consistent with an Opinion of
Counsel obtained by the Company from any attorney duly licensed to practice
law in the state where the REO Property is located. The Person or Persons
holding such title other than the Purchaser shall acknowledge in writing that
such title is being held as nominee for the Purchaser.
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The Company shall manage, conserve, protect and operate each REO
Property for the Purchaser solely for the purpose of its prompt disposition
and sale. The Company, either itself or through an agent selected by the
Company, 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 Company 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 Company deems to be in the best interest of the Purchaser.
The Company shall use its best efforts to dispose of the REO Property as
soon as possible and shall sell such REO Property in any event within one year
after title has been taken to such REO Property, unless (i) a REMIC election
has not been made with respect to the arrangement under which the Mortgage
Loans and the REO Property are held, and (ii) the Company determines, and
gives an appropriate notice to the Purchaser to such effect, that a longer
period is necessary for the orderly liquidation of such REO Property. If a
period longer than one year is permitted under the foregoing sentence and is
necessary to sell any REO Property, (i) the Company shall report monthly to
the Purchaser as to the progress being made in selling such REO Property and
(ii) if, with the written consent of the Purchaser, a purchase money mortgage
is taken in connection with such sale, such purchase money mortgage (1) shall
name the Company as mortgagee, and (2) shall not be held pursuant to this
Agreement, but instead a separate participation agreement among the Company
and Purchaser shall be entered into with respect to such purchase money
mortgage.
The Company shall also maintain on each REO Property fire and hazard
insurance with extended coverage in amount which is at least equal to the
maximum insurable value of the improvements which are a part of such property,
liability insurance and, to the extent required and available under the Flood
Disaster Protection Act of 1973, as amended, flood insurance in the amount
required above.
Subject to 5 days' prior written notice to the Purchaser, at the address
specified in Section 12.5, of its intent to do so, the disposition of REO
Property shall be carried out by the Company at such price, and upon such
terms and conditions, as the Company deems to be in the best interests of the
Purchaser. The proceeds of sale of the REO Property shall be promptly
deposited in the Custodial Account. As soon as practical thereafter the
expenses of such sale shall be paid and the Company shall reimburse itself for
any related unreimbursed Servicing Advances, unpaid Servicing Fees and
unreimbursed advances made pursuant to Section 5.3. On the Remittance Date
immediately following the Principal Prepayment Period in which such sale
proceeds are received the net cash proceeds of such sale remaining in the
Custodial Account shall be distributed to the Purchaser.
The Company shall withdraw the Custodial Account funds necessary for the
proper operation management and maintenance of the REO Property, including the
cost of maintaining any hazard insurance pursuant to Section 4.10 and the fees
of any managing agent of the Company, or the Company itself. The Company shall
make monthly distributions on each Remittance Date to the Purchaser of the net
cash flow from the REO Property (which shall equal the revenues from such REO
Property net of the expenses described in the Section 4.16 and of any reserves
reasonably required from time to time to be maintained to satisfy anticipated
liabilities for such expenses).
Section 4.18 Real Estate Owned Reports.
Together with the statement furnished pursuant to Section 5.2, the
Company shall furnish to the Purchaser on or before the Remittance Date each
month a statement with respect to any REO Property covering the operation of
such REO Property for the previous month and the Company's efforts in
connection with the sale of such REO Property and any rental of such REO
Property incidental to the sale
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thereof for the previous month. That statement shall be accompanied by such
other information as the Purchaser shall reasonably request.
Section 4.19 Liquidation Reports.
Upon the foreclosure sale of any Mortgaged Property or the acquisition
thereof by the Purchaser pursuant to a deed in lieu of foreclosure, the
Company shall submit to the Purchaser a liquidation report with respect to
such Mortgaged Property.
Section 4.20 Reports of Foreclosures and Abandonments of Mortgaged
Property.
Following the foreclosure sale or abandonment of any Mortgaged Property,
the Company shall report such foreclosure or abandonment as required pursuant
to Section 6050J of the Code. The Company shall file information reports with
respect to the receipt of mortgage interest received in a trade or business
and information returns relating to cancellation of indebtedness income with
respect to any Mortgaged Property as required by the Code. Such reports shall
be in form and substance sufficient to meet the reporting requirements imposed
by the Code.
Section 4.21 Fair Credit Reporting Act.
The Company, in its capacity as servicer for each Mortgage Loan, agrees
to fully furnish, in accordance with the Fair Credit Reporting Act and its
implementing regulations, accurate and complete information (e.g., favorable
and unfavorable) on its borrower credit files to Equifax, Experian and Trans
Union Credit Information Company (three of the credit repositories), on a
monthly basis.
ARTICLE V
PAYMENTS TO PURCHASER
Section 5.1 Remittances.
On each Remittance Date the Company shall remit by wire transfer of
immediately available funds to the Purchaser (a) all amounts deposited in the
Custodial Account as of the close of business on the Determination Date (net
of charges against or withdrawals from the Custodial Account pursuant to
Section 4.5), plus (b) all amounts, if any, which the Company is obligated to
distribute pursuant to Section 5.3, minus (c) any amounts attributable to
Principal Prepayments received after the applicable Principal Prepayment
Period which amounts shall be remitted on the following Remittance Date,
together with any additional interest required to be deposited in the
Custodial Account in connection with such Principal Prepayment in accordance
with Section 4.4(viii); and minus (d) any amounts attributable to Monthly
Payments collected but due on a Due Date or Dates subsequent to the first day
of the month of the Remittance Date.
All cash flows from prepayment penalties shall be passed through to the
Purchaser and shall not be waived by the Company, except pursuant to Section
4.1.
With respect to any remittance received by the Purchaser after the date
on which such payment was due, the Company shall pay to the Purchaser interest
on any such late payment at an annual rate equal to the Prime Rate, adjusted
as of the date of each charge, plus two percentage points, but in no event
greater than the maximum amount permitted by Applicable Law. Such interest
shall be deposited in the Custodial Account by the Company on the date such
late payment is made and shall cover the period commencing with the day
following such second Business Day and ending with the Business Day on
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which such payment is made, both inclusive. Such interest shall be remitted
along with the distribution payable on the next succeeding Remittance Date.
The payment by the Company of any such interest shall not be deemed an
extension of time for payment or a waiver of any Event of Default by the
Company.
Section 5.2 Statements to Purchaser.
Not later than the Remittance Advice Date, the Company shall furnish to
the Purchaser a Monthly Remittance Advice, including the information set forth
in Exhibit E attached hereto, with a trial balance report attached thereto, as
to the period ending on the last day of the preceding month, in a form to be
agreed upon by the Purchaser and the Company.
Section 5.3 Monthly Advances by Company.
On the Business Day immediately preceding each Remittance Date, the
Company shall deposit in the Custodial Account from its own funds or from
amounts held for future distribution an amount equal to all Monthly Payments
(with interest adjusted to the Mortgage Loan Remittance Rate) which were due
on the Mortgage Loans during the applicable Due Period and which were
delinquent at the close of business on the Determination Date immediately
preceding such Remittance Date or which were deferred pursuant to Section 4.1.
Any amounts held for future distribution and so used shall be replaced by the
Company by deposit in the Custodial Account on or before any future Remittance
Date if funds in the Custodial Account on such Remittance Date shall be less
than payments to the Purchaser required to be made on such Remittance Date.
Notwithstanding the foregoing, the Company shall not be permitted to make any
advances from amounts held for future distribution, and instead shall be
required to make all advances from its own funds, unless the Company, its
parent, or their respective successors hereunder shall have a long-term credit
rating of at least "A" by Fitch, Inc. (doing business as Fitch Ratings), "A"
by Standard & Poor's Ratings Group, a division of The XxXxxx-Xxxx Companies,
Inc., and "A2" by Xxxxx'x Investors Service, Inc. The Company's obligation to
make such Monthly Advances as to any Mortgage Loan will continue through the
last Monthly Payment due prior to the payment in full of the Mortgage Loan, or
through the earlier of: (i) the last Remittance Date prior to the Remittance
Date for the distribution of all Liquidation Proceeds and other payments or
recoveries (including Insurance Proceeds and Condemnation Proceeds) with
respect to the Mortgage Loan and (ii) the Remittance Date prior to the date
the Mortgage Loan is converted to REO Property, provided however, that if
requested by a Rating Agency in connection with Pass-Through Transfer, the
Company shall be obligated to make such advances through the Remittance Date
prior to the date on which cash is received in connection with the liquidation
of REO Property; provided, however, that such obligation shall cease if the
Company determines, in its sole reasonable opinion, that advances with respect
to such Mortgage Loan are non-recoverable by the Company from Liquidation
Proceeds, Insurance Proceeds, Condemnation Proceeds, or otherwise with respect
to a particular Mortgage Loan. In the event that the Company determines that
any such advances are non-recoverable, the Company shall provide the Purchaser
with a certificate signed by two officers of the Company evidencing such
determination.
ARTICLE VI
GENERAL SERVICING PROCEDURES
Section 6.1 Transfers of Mortgaged Property.
The Company shall use its best efforts to enforce any "due-on-sale"
provision contained in any Mortgage or Mortgage Note and to deny assumption by
the Person to whom the Mortgaged Property has been or is about to be sold
whether by absolute conveyance or by contract of sale, and whether or not the
Mortgagor remains liable on the Mortgage and the Mortgage Note. When the
Mortgaged Property has
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been conveyed by the Mortgagor, the Company shall, to the extent it has
knowledge of such conveyance, exercise its rights to accelerate the maturity
of such Mortgage Loan under the "due-on-sale" clause applicable thereto,
provided, however, that the Company shall not exercise such rights if
prohibited by law from doing so.
If the Company reasonably believes it is unable under Applicable Law to
enforce such "due-on-sale" clause, the Company shall enter into (i) an
assumption and modification agreement with the Person to whom such property
has been conveyed, pursuant to which such Person becomes liable under the
Mortgage Note and the original Mortgagor remains liable thereon or (ii) in the
event the Company is unable under Applicable Law to require that the original
Mortgagor remain liable under the Mortgage Note and the Company has the prior
consent of the primary mortgage guaranty insurer, a substitution of liability
agreement with the purchaser of the Mortgaged Property pursuant to which the
original Mortgagor is released from liability and the purchaser of the
Mortgaged Property is substituted as Mortgagor and becomes liable under the
Mortgage Note. If an assumption fee is collected by the Company for entering
into an assumption agreement the fee will be retained by the Company as
additional servicing compensation. In connection with any such assumption,
neither the Mortgage Interest Rate borne by the related Mortgage Note, the
term of the Mortgage Loan, the outstanding principal amount of the Mortgage
Loan nor any other material terms shall be changed without Purchaser's
consent.
To the extent that any Mortgage Loan is assumable, the Company shall
inquire diligently into the credit worthiness of the proposed transferee, and
shall use the underwriting criteria for approving the credit of the proposed
transferee which are used with respect to underwriting mortgage loans of the
same type as the Mortgage Loan. If the credit of the proposed transferee does
not meet such underwriting criteria, the Company diligently shall, to the
extent permitted by the Mortgage or the Mortgage Note and by Applicable Law,
accelerate the maturity of the Mortgage Loan.
Section 6.2 Satisfaction of Mortgages and Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, the Company shall notify
the Purchaser in the Monthly Remittance Advice as provided in Section 5.2, and
may request the release of any Mortgage Loan Documents. If such Mortgage Loan
is a MERS Mortgage Loan, the Company is authorized to cause the removal from
the registration on the MERS System of such Mortgage and to execute and
deliver, on behalf of the Purchaser, any and all instruments of satisfaction
or cancellation or of partial or full release.
If the Company satisfies or releases a Mortgage without first having
obtained payment in full of the indebtedness secured by the Mortgage or should
the Company otherwise prejudice any rights the Purchaser may have under the
mortgage instruments, upon written demand of the Purchaser, the Company shall
repurchase the related Mortgage Loan at the Repurchase Price by deposit
thereof in the Custodial Account within 2 Business Days of receipt of such
demand by the Purchaser. The Company shall maintain the Fidelity Bond and
Errors and Omissions Insurance Policy as provided for in Section 4.12 insuring
the Company against any loss it may sustain with respect to any Mortgage Loan
not satisfied in accordance with the procedures set forth herein.
Section 6.3 Servicing Compensation.
As compensation for its services hereunder, the Company shall be
entitled to withdraw from the Custodial Account or to retain from interest
payments on the Mortgage Loans the amount of its Servicing Fee. The Servicing
Fee shall be payable monthly and shall be computed on the basis of the
Scheduled Principal Balance and for the period respecting which any related
interest payment on a Mortgage Loan is
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computed. The obligation of the Purchaser to pay the Servicing Fee is limited
to, and payable solely from, the interest portion of such Monthly Payments.
Additional servicing compensation in the form of assumption fees, to the
extent provided in Section 6.01, and late payment charges shall be retained by
the Company to the extent not required to be deposited in the Custodial
Account. The Company shall be required to pay all expenses incurred by it in
connection with its servicing activities hereunder and shall not be entitled
to reimbursement thereof except as specifically provided for herein.
Section 6.4 Annual Statement as to Compliance.
For each Mortgage Loan Package, the Company shall deliver to the
Purchaser on or before February 28 each year, beginning in the calendar year
immediately succeeding the calendar year of the related Closing Date, an
Officer's Certificate, stating that (i) a review of the activities of the
Company during the preceding calendar year and of performance under this
Agreement has been made under such officer's supervision, and (ii) the Company
has complied with the provisions of this Agreement or similar agreements, and
(iii) to the best of such officer's knowledge, based on such review, the
Company has fulfilled all its obligations under this Agreement or similar
agreements throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof and the action being taken by the
Company to cure such default.
Section 6.5 Annual Independent Public Accountants' Servicing Report.
For each Mortgage Loan Package, on or before February 28 each year,
beginning in the calendar year immediately succeeding the calendar year of the
related Closing Date, the Company, at its expense, shall cause a firm of
independent public accountants which is a member of the American Institute of
Certified Public Accountants to furnish a statement to each Purchaser to the
effect that such firm has examined certain documents and records relating to
the servicing of the mortgage loans similar in nature and that such firm is of
the opinion that the provisions of this or similar agreements have been
complied with, and that, on the basis of such examination conducted
substantially in compliance with the Uniform Single Attestation Program for
Mortgage Bankers, nothing has come to their attention which would indicate
that such servicing has not been conducted in compliance therewith, except for
(i) such exceptions as such firm shall believe to be immaterial, and (ii) such
other exceptions as shall be set forth in such statement. By providing
Purchaser a copy of a Uniform Single Attestation Program Report from their
independent public accountant's on an annual basis, Company shall be
considered to have fulfilled its obligations under this Section 6.5.
Section 6.6 Right to Examine Company Records.
The Purchaser, or its designee, shall have the right to examine and
audit any and all of the books, records, or other information of the Company,
whether held by the Company or by another on its behalf, with respect to or
concerning this Agreement or the Mortgage Loans, during business hours or at
such other times as may be reasonable under applicable circumstances, upon
reasonable advance notice. The Purchaser shall pay its own expenses associated
with such examination.
Section 6.7 Compliance with REMIC Provisions.
If a REMIC election has been made with respect to the arrangement under
which the Mortgage Loans and REO Property are held, the Company shall not take
any action or fail to take any action or fail to cause the REMIC to take any
action, that, under the REMIC Provisions, if taken or not taken, as the case
may be, could (i) endanger the status of the REMIC as a REMIC or (ii) result
in the imposition of a
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tax upon the REMIC (including but not limited to the tax on "prohibited
transactions" as defined Section 860F(a)(2) of the Code and the tax on
"contributions" to a REMIC set forth in Section 860G(d) of the Code) unless
the Company has received an Opinion of Counsel (at the expense of the party
seeking to take such action) to the effect that the contemplated action will
not endanger such REMIC status or result in the imposition of any such tax.
ARTICLE VII
COMPANY TO COOPERATE
Section 7.1 Provision of Information.
During the term of this Agreement, the Company shall furnish to the
Purchaser such periodic, special, or other reports or information, and copies
or originals of any documents contained in the Servicing File for each
Mortgage Loan provided for herein. All other special reports or information
not provided for herein as shall be necessary, reasonable, or appropriate with
respect to the Purchaser or any regulatory agency will be provided at the
Purchaser's expense. All such reports, documents or information shall be
provided by and in accordance with all reasonable instructions and directions
which the Purchaser may give.
The Company shall execute and deliver all such instruments and take all
such action as the Purchaser may reasonably request from time to time, in
order to effectuate the purposes and to carry out the terms of this Agreement.
Section 7.2 Financial Statements; Servicing Facility.
In connection with marketing the Mortgage Loans, the Purchaser may make
available to a prospective Purchaser a Consolidated Statement of Operations of
the Company for the most recently completed two fiscal years for which such a
statement is available, as well as a Consolidated Statement of Condition at
the end of the last two fiscal years covered by such Consolidated Statement of
Operations. The Company, upon request, also shall make available any
comparable interim statements to the extent any such statements have been
prepared by or on behalf of the Company (and are available upon request to
members or stockholders of the Company or to the public at large).
The Company also shall make available to Purchaser or prospective
Purchaser a knowledgeable financial or accounting officer for the purpose of
answering questions respecting recent developments affecting the Company or
the financial statements of the Company, and to permit any prospective
purchaser to inspect the Company's servicing facilities for the purpose of
satisfying such prospective purchaser that the Company has the ability to
service the Mortgage Loans as provided in this Agreement.
ARTICLE VIII
THE COMPANY
Section 8.1 Indemnification; Third Party Claims.
The Company shall indemnify the Purchaser and hold it 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 the Purchaser may sustain in any way related to the
failure of the Company to perform its duties and service the Mortgage Loans in
strict compliance with the terms of this Agreement. The Company immediately
shall notify the Purchaser if a claim is made by a
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third party with respect to this Agreement or the Mortgage Loans, assume (with
the prior written consent of the Purchaser) the defense of any such claim and
pay all expenses in connection therewith, including counsel fees, and promptly
pay, discharge and satisfy any judgment or decree which may be entered against
it or the Purchaser in respect of such claim. The Company shall follow any
written instructions received from the Purchaser in connection with such
claim. The Purchaser promptly shall reimburse the Company for all costs, fees
or expenses advanced by it pursuant to this paragraph except when the claim in
any way results from, relates to or arises out of any liability, obligation,
act or omission of the Company, including without limitation, the Company's
indemnification obligation under Section 3.3 and this Section 8.1, any
repurchase obligation of the Company hereunder including Sections 2.3, 3.3 and
6.2, or the failure of the Company to service and administer the Mortgage
Loans and otherwise perform its obligations hereunder in strict compliance
with the terms of this Agreement.
Section 8.2 Merger or Consolidation of the Company.
The Company shall keep in full effect its existence, rights and
franchises and shall obtain and preserve its qualification to do business in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement or any of the
Mortgage Loans and to perform its duties under this Agreement.
Any Person into which the Company may be merged or consolidated, or any
corporation resulting from any merger, conversion or consolidation to which
the Company shall be a party, or any Person succeeding to the business of the
Company, shall be the successor of the Company hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding, provided,
however, that the successor or surviving Person shall be an institution which
is a Xxxxxx Xxx/Xxxxxxx Mac-approved company in good standing. Furthermore, in
the event the Company transfers or otherwise disposes of all or substantially
all of its assets to an affiliate of the Company, such affiliate shall satisfy
the condition above, and shall also be fully liable to the Purchaser for all
of the Company's obligations and liabilities hereunder.
Section 8.3 Limitation on Liability of Company and Others.
Neither the Company nor any of the directors, officers, employees or
agents of the Company shall be under any liability to the Purchaser for any
action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, or for errors in judgment, provided, however, that
this provision shall not protect the Company or any such Person against any
breach of warranties or representations made herein, or failure to perform its
obligations in strict compliance with any standard of care set forth in this
Agreement or any other liability which would otherwise be imposed under this
Agreement. The Company and any director, officer, employee or agent of the
Company 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 Company shall not be under any obligation to appear in,
prosecute or defend any legal action which is not incidental to its duties to
service the Mortgage Loans in accordance with this Agreement and which in its
opinion may involve it in any expense or liability, provided, however, that
the Company may, with the consent of the Purchaser, undertake any such action
which it may deem necessary or desirable in respect to this Agreement and the
rights and duties of the parties hereto. In such event, the Company shall be
entitled to reimbursement from the Purchaser of the reasonable legal expenses
and costs of such action.
Section 8.4 Limitation on Resignation and Assignment by Company.
The Purchaser has entered into this Agreement with the Company and
subsequent Purchasers will purchase the Mortgage Loans in reliance upon the
independent status of the Company, and the
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representations as to the adequacy of its servicing facilities, plant,
personnel, records and procedures, its integrity, reputation and financial
standing, and the continuance thereof. Therefore, the Company shall neither
assign this Agreement or the servicing rights hereunder, or sell or otherwise
dispose of all of its property or assets without the prior written consent of
the Purchaser, which consent shall not be unreasonably withheld.
The Company shall not resign from the obligations and duties hereby
imposed on it except by mutual consent of the Company and the Purchaser or
upon the determination that its duties hereunder are no longer permissible
under Applicable Law and such incapacity cannot be cured by the Company. Any
such determination permitting the resignation of the Company shall be
evidenced by an Opinion of Counsel to such effect delivered to the Purchaser
which Opinion of Counsel shall be in form and substance acceptable to the
Purchaser. No such resignation shall become effective until a successor shall
have assumed the Company's responsibilities and obligations hereunder in the
manner provided in Section 12.1.
Without in any way limiting the generality of this Section 8.4, in the
event that the Company either shall assign this Agreement or the servicing
responsibilities hereunder or sell or otherwise dispose of all or
substantially all of its property or assets without the prior written consent
of the Purchaser, then the Purchaser shall have the right to terminate this
Agreement upon notice given as set forth in Section 10.1, without any payment
of any penalty or damages and without any liability whatsoever to the
Purchaser or any third party.
ARTICLE IX
PASS-THROUGH TRANSFER
Section 9.1 Removal of Mortgage Loans from Inclusion Under this
Agreement Upon a Pass-Through Transfer
The Purchaser and the Company agree that with respect to some or all of
the Mortgage Loans, the Purchaser, at its sole option, may effect Whole Loan
Transfers or Pass-Through Transfers, retaining the Company as the Servicer
thereof or subservicer if a master servicer is employed, or as applicable the
"seller/servicer". From and after the Reconstitution Date, the Mortgage Loans
transferred may remain covered by this Agreement, insofar as the Company shall
continue to service such Mortgage Loans on behalf of the Purchaser in
accordance with the terms and provisions of this Agreement.
The Company shall cooperate with the Purchaser in connection with each
Whole Loan Transfer or Pass-Through Transfer in accordance with this Section
9.1. In connection therewith the Company shall:
(a) make all representations and warranties with respect to
the Mortgage Loans as of the related Closing Date and with respect to the
Company itself as of the closing date of each Whole Loan Transfer or
Pass-Through Transfer;
(b) negotiate in good faith and execute any seller/servicer
agreements required by the shelf registrant to effectuate the foregoing
provided such agreements create no greater obligation or cost on the part of
the Company than otherwise set forth in this Agreement;
(c) with respect to any Mortgage Loans that are subject to a
Pass-Through Transfer or other securitization (a "Securitization") in which
the filing of a Xxxxxxxx-Xxxxx certification directly with the Securities and
Exchange Commission is required, by February 28th of each year or in
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connection with any additional Xxxxxxxx-Xxxxx certification required to be
filed, upon thirty (30) days written request, an officer of the Company shall
execute and deliver a Company Certification substantially in the form attached
hereto as Exhibit H, to the entity filing the Xxxxxxxx-Xxxxx certification
directly with the Securities and Exchange Commission (such as the Purchaser,
any master servicer, any trustee or any depositor) for the benefit of such
entity and such entity's affiliates and the officers, directors and agents of
such entity and such entity's affiliates, and shall indemnify such entity or
persons arising out of any breach of the Company's obligations or
representations relating thereto as provided in such Company Certification;
(d) represent to the Purchaser, the depositor, the trustee,
and the initial purchaser of the securities issued in connection with any
Pass-Through Transfer that: (1) that the Company has serviced the Mortgage
Loans in accordance with the terms of this Agreement, and has otherwise
complied with all covenants and obligations hereunder, and (2) that the
Company has taken no action that would, nor omitted to take any required
action the omission of which would, have the effect of impairing the mortgage
insurance or guarantee on the Mortgage Loans. The Company also agrees to
represent the accuracy of any information provided to the Purchaser by the
Company for inclusion in any prospectus supplement, offering memorandum or
term sheet prepared in connection with any Pass-Through Transfers;
(e) deliver an opinion of counsel (which can be an opinion
of in-house counsel to the Company) reasonably acceptable to the Purchaser;
provided that any out-of-pocket, third party expenses incurred by the Company
in connection with the foregoing shall be paid by the Purchaser;
(f) provide as applicable:
(i) any and all information and appropriate
verification of information which may be reasonably available to the
Company, whether through letters of its auditors and counsel or
otherwise, as the Purchaser shall request;
(ii) (x) a company certification executed by a senior
officer of the Company responsible for the servicing of the Mortgage
Loans, and (y) such additional statements, certificates or other similar
documents of the Company or reports from the Company's accountants in
connection with a Pass-Through Transfer and in substance as required by
Applicable Law; and
(iii) such additional representations, warranties,
covenants, opinions of counsel, letters from auditors, financial
description of the Company as servicer for inclusion in any offering
memorandum to be distributed to potential investors in connection with a
Pass-Through Transfer with respect to the Mortgage Loans, and
certificates of public officials or officers of the Company as are
reasonably believed necessary by the trustee, any Rating Agency, the
Purchaser, as the case may be, in connection with such Whole Loan
Transfers or Pass-Through Transfers. The Purchaser shall pay all third
party costs associated with the preparation of such information. The
Company shall execute any seller/servicer agreements required within a
reasonable period of time after receipt of such seller/servicer
agreements which time shall be sufficient for the Company and Company's
counsel to review such seller/servicer agreements. Under this Agreement,
the Company shall retain a servicing fee for each Mortgage Loan, at the
Servicing Fee Rate;
(g) indemnify the Purchaser for any material misstatements,
omissions or alleged material misstatements or omissions contained in the
information provided pursuant to (d) or (f)
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above; provided, that the Purchaser shall provide indemnification to the
Company, its successors or assigns, with respect to any material
misstatements, omissions or alleged material misstatements or omissions
contained in any information (other than the information provided by the
Company pursuant to (d) or (f) above) in any securitization offering
materials; and
(h) if required at any time by the Rating Agencies in
connection with any Pass-Through Transfer, the Company shall deliver such
additional documents from its Retained Mortgage File to the Custodian as the
Rating Agencies may require (a "Rating Agency Delivery Event").
In the event the Purchaser has elected to have the Company hold record
title to the Mortgages, prior to the Reconstitution Date and after the related
Closing Date the Company shall prepare an Assignment of Mortgage in blank or,
at the option of the Purchaser, to the trustee from the Company (to the extent
such Assignment has not been prepared on or before the related Closing Date)
acceptable to the trustee for each Mortgage Loan that is part of the Whole
Loan Transfers or Pass-Through Transfers. The Purchaser shall pay all
preparation and recording costs associated therewith. The Company shall
execute each Assignment of Mortgage, track such Assignments of Mortgage to
ensure they have been recorded and deliver them as required by the trustee
upon the Company's receipt thereof. Additionally, the Company shall prepare
and execute, at the direction of the Purchaser, any note endorsements in
connection with any and all seller/servicer agreements.
ARTICLE X
DEFAULT
Section 10.1 Events of Default.
Each of the following shall constitute an Event of Default on the part
of the Company:
(i) any failure by the Company to remit to the Purchaser any
payment required to be made under the terms of this Agreement which
continues unremedied for a period of three Business Days after the date
upon which written notice of such failure, requiring the same to be
remedied, shall have been given to the Company by the Purchaser; or
(ii) failure by the Company duly to observe or perform in
any material respect any other of the covenants or agreements on the
part of the Company set forth in this Agreement which continues
unremedied for a period of 30 days after the date on which written
notice of such failure, requiring the same to be remedied, shall have
been given to the Company by the Purchaser or by the Custodian; or
(iii) failure by the Company to maintain its license to do
business in any jurisdiction where the Mortgaged Property is located if
such license is required; or
(iv) a decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt,
including bankruptcy, marshaling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against the Company and such degree or order shall
have remained in force undischarged or unstayed for a period of 60 days;
or
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(v) the Company shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshaling of assets and liabilities or similar proceedings of or
relating to the Company or of or relating to all or substantially all of
its property; or
(vi) the Company 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, bankruptcy or reorganization
statute, make an assignment for the benefit of its creditors,
voluntarily suspend payment of its obligations or cease its normal
business operations for three Business Days; or
(vii) the Company ceases to meet the qualifications of a
Xxxxxx Mae/Xxxxxxx Mac servicer; or
(viii) the Company attempts to assign its right to servicing
compensation hereunder or to assign this Agreement or the servicing
responsibilities hereunder in violation of Section 8.4; or
(ix) the taking of any action by the Company, any Company
Employee, any Affiliate or any director or employee thereof that
constitutes fraud or criminal activity in the performance of its
obligations under this Agreement or the indictment of any of the
foregoing Persons for criminal activity related to the mortgage
origination or servicing activities of the Company, in each case, where
such indictment materially and adversely affects the ability of the
Company to perform its obligations under this Agreement (subject to the
condition that such indictment is not dismissed within 90 days).
In each and every such case, so long as an Event of Default shall not
have been remedied, in addition to whatever rights the Purchaser may have at
law or equity to damages, including injunctive relief and specific
performance, the Purchaser, by notice in writing to the Company, may terminate
with cause all the rights and obligations of the Company under this Agreement
and in and to the Mortgage Loans and the proceeds thereof.
Upon receipt by the Company of such written notice, all authority and
power of the Company under this Agreement, whether with respect to the
Mortgage Loans or otherwise, shall pass to and be vested in the successor
appointed pursuant to Section 12.1. Upon written request from any Purchaser,
the Company shall prepare, execute and deliver to the successor entity
designated by the Purchaser any and all documents and other instruments, place
in such successor's possession all Mortgage Files, and do or cause to be done
all other acts or things necessary or appropriate to effect the purposes of
such notice of termination, including but not limited to the transfer and
endorsement or assignment of the Mortgage Loans and related documents, at the
Company's sole expense. The Company shall cooperate with the Purchaser and
such successor in effecting the termination of the Company's responsibilities
and rights hereunder, including without limitation, the transfer to such
successor for administration by it of all cash amounts which shall at the time
be credited by the Company to the Custodial Account or Escrow Account or
thereafter received with respect to the Mortgage Loans.
If any of the Mortgage Loans are MERS Mortgage Loans, in connection with
the termination or resignation (as described in Section 8.4) of the Company
hereunder, either (i) the successor servicer shall represent and warrant that
it is a member of MERS in good standing and shall agree to comply in all
material respects with the rules and procedures of MERS in connection with the
servicing of the Mortgage Loans that are registered with MERS, or (ii) the
predecessor servicer shall cooperate with the
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successor servicer either (x) in causing MERS to execute and deliver an
assignment of Mortgage in recordable form to transfer the Mortgage from MERS
to the Purchaser and to execute and deliver such other notices, documents and
other instruments as may be necessary to effect a transfer of such Mortgage
Loan or servicing of such Mortgage Loan on the MERS(R) System to the successor
servicer or (y) in causing MERS to designate on the MERS(R) System the
successor servicer as the servicer of such Mortgage Loan.
Section 10.2 Waiver of Defaults. By a written notice, the Purchaser may
waive any default by the Company in the performance of its obligations
hereunder and its consequences. Upon any waiver of a past default, such
default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been remedied for every purpose of this Agreement. No such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon except to the extent expressly so waived.
ARTICLE XI
TERMINATION
Section 11.1 Termination.
This Agreement shall terminate upon any of: (i) the later of the final
payment or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan or the disposition of any REO Property with respect to the last
Mortgage Loan and the remittance of all funds due hereunder, (ii) mutual
consent of the Company and the Purchaser in writing or (iii) termination
pursuant to Section 10.1, 11.2 or 11.3.
Section 11.2 Termination Without Cause.
The Purchaser may terminate, at its sole option, any rights the Company
may have hereunder, without cause, as provided in this Section 11.2. Any such
notice of termination shall be in writing and delivered to the Company and any
Rating Agency by registered mail as provided in Section 12.5.
The Company shall be entitled to receive, as such liquidated damages,
upon its termination as servicer hereunder without cause pursuant to this
Section 11.2 an amount equal to 2.50% of the aggregate outstanding principal
amount of the Mortgage Loans as of the termination date paid by the Purchaser
to the Company with respect to all of the Mortgage Loans. In the event of a
termination pursuant to this Section 11.2, the Company shall be required, at
the expense of the Purchaser, to deliver to the Custodian the entire contents
of the Retained Mortgage File, to the extent such contents were not previously
delivered to the Custodian pursuant to this Agreement or the Custodial
Agreement.
Section 11.3 Termination With Cause.
Notwithstanding any other provision hereof to the contrary, the
Purchaser, at its option, may terminate this Agreement, and any rights the
Company may have hereunder, with cause upon ten (10) Business Days' prior
written notice. For all purposes of determining "cause" with respect to
termination of this Agreement or the rights of the Company hereunder, such
term shall mean, without limitation, termination upon the occurrence of any
Event of Default hereunder which is not cured within any applicable cure
period. In the event of a termination of the Company for cause under this
Section 11.3, no liquidated damages shall be payable to the Company pursuant
to Section 11.2 and the Company shall be required, at its own expense, to
deliver to the Custodian the entire contents of the Retained Mortgage File,
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to the extent such contents were not previously delivered to the Custodian
pursuant to this Agreement or the Custodial Agreement.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.1 Successor to Company.
Prior to termination of the Company's responsibilities and duties under
this Agreement pursuant to Sections 8.4, 10.1 or 11.1, the Purchaser shall,
(i) succeed to and assume all of the Company's responsibilities, rights,
duties and obligations under this Agreement, or (ii) appoint a successor
having the characteristics set forth in Section 8.2 and which shall succeed to
all rights and assume all of the responsibilities, duties and liabilities of
the Company under this Agreement prior to the termination of Company's
responsibilities, duties and liabilities under this Agreement. In connection
with such appointment and assumption, the Purchaser may make such arrangements
for the compensation of such successor out of payments on Mortgage Loans as it
and such successor shall agree. In the event that the Company's duties,
responsibilities and liabilities under this Agreement should be terminated
pursuant to the aforementioned sections, the Company shall discharge such
duties and responsibilities during the period from the date it acquires
knowledge of such termination until the effective date thereof with the same
degree of diligence and prudence which it is obligated to exercise under this
Agreement, and shall take no action whatsoever that might impair or prejudice
the rights or financial condition of its successor. The resignation or removal
of the Company pursuant to the aforementioned sections shall not become
effective until a successor shall be appointed pursuant to this Section 12.1
and shall in no event relieve the Company of the representations and
warranties made pursuant to Sections 3.1 and 3.2 and the remedies available to
the Purchaser under Sections 2.3, 3.3 and 6.2, it being understood and agreed
that the provisions of such Sections 2.3, 3.1, 3.2, 3.3, 6.1 and 8.1 shall be
applicable to the Company notwithstanding any such sale, assignment,
resignation or termination of the Company, or the termination of this
Agreement.
Any successor appointed as provided herein shall execute, acknowledge
and deliver to the Company and to the Purchaser an instrument accepting such
appointment, wherein the successor shall make the representations and
warranties set forth in Section 3.1, except for the portion of subsection (h)
relating to sale of the mortgage loans and all of subsections (j) and (l)
thereof, whereupon such successor shall become fully vested with all the
rights, powers, duties, responsibilities, obligations and liabilities of the
Company, with like effect as if originally named as a party to this Agreement.
Any termination or resignation of the Company or termination of this Agreement
pursuant to Section 8.4, 10.1, 11.1, 11.2 or 11.3 shall not affect any claims
that any Purchaser may have against the Company arising out of the Company's
actions or failure to act prior to any such termination or resignation.
The Company shall deliver promptly to the successor servicer the funds
in the Custodial Account and Escrow Account and all Mortgage Files and related
documents and statements held by it hereunder and the Company shall account
for all funds and shall execute and deliver such instruments and do such other
things as may reasonably be required to more fully and definitively vest in
the successor all such rights, powers, duties, responsibilities, obligations
and liabilities of the Company.
Upon a successor's acceptance of appointment as such, the Company shall
notify by mail the Purchaser of such appointment in accordance with the
procedures set forth in Section 12.5.
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Section 12.2 Amendment.
This Agreement may be amended from time to time by written agreement
signed by the Company and the Purchaser.
Section 12.3 Governing Law.
This Agreement shall be construed in accordance with the laws of the
State of New York and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
Each of the Company and the Purchaser hereby knowingly, voluntarily and
intentionally waives any and all rights it may have to a trial by jury in
respect or any litigation based on, or arising out of, under, or in connection
with, this Agreement, or any other documents and instruments executed in
connection herewith, or any course of conduct, course of dealing, statements
(whether oral or written), or actions of the Company or the Purchaser. This
provision is a material inducement for the Purchaser to enter into this
Agreement.
Section 12.4 Duration of Agreement.
This Agreement shall continue in existence and effect until terminated
as herein provided. This Agreement shall continue notwithstanding transfers of
the Mortgage Loans by the Purchaser.
Section 12.5 Notices.
All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given if personally delivered at or
mailed by registered mail, postage prepaid, addressed as follows:
(i) if to the Company with respect to servicing and investor
reporting issues:
Xxxxx Fargo Bank, N.A.
1 Home Campus, MAC #X2401042
Des Moines, Iowa 503280001
Attention: Xxxx X. Xxxxx
Tel: (000) 0000000
if to the Company with respect to all other issues:
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxxx Xxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxx, MAC X3906-012
Tel: (000) 000-0000; Fax: (000) 000-0000
With a copy to:
Xxxxx Fargo Bank, N.A.
1 Home Campus, MAC #X240106T
Xxx Xxxxxx, Xxxx 000000000
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Attention: General Counsel
Tel: (000) 000-0000; Fax: (000) 000-0000
or such other address as may hereafter be furnished to the
Purchaser in writing by the Company;
(ii) if to Purchaser:
Xxxxxxx Sachs Mortgage Company
000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000 Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Tel: (000) 000-0000; Fax: (000) 000-0000
With a copy to:
Xxxxxxx Sachs Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx Xxxx
Tel: (000) 000-0000; Fax: (000) 000-0000
or such other address as may hereafter be furnished to the
Company in writing by the Purchaser.
Section 12.6 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be held invalid for any reason whatsoever, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions
of this Agreement.
Section 12.7 Relationship of Parties.
Nothing herein contained shall be deemed or construed to create a
partnership or joint venture between the parties hereto and the services of
the Company shall be rendered as an independent contractor and not as agent
for the Purchaser.
Section 12.8 Execution; Successors and Assigns.
This Agreement may be executed in one or more counterparts and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together,
shall constitute one and the same agreement. Subject to Section 8.4, this
Agreement shall inure to the benefit of and be binding upon, and shall be
enforceable by, the Company and the Purchaser and their respective successors
and assigns, including without limitation, any trustee appointed by the
Purchaser with respect to any Whole Loan Transfer or Pass-Through Transfer.
The parties agree that this Agreement and signature pages thereof may be
transmitted between them by facsimile and that faxed signatures may constitute
original signatures and that a faxed signature page containing the signature
(faxed or original) is binding on the parties.
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Section 12.9 Recordation of Assignments of Mortgage.
To the extent permitted by Applicable Law, as to each Mortgage Loan
which is not a MERS Mortgage Loan, each of the Assignments of Mortgage is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the Mortgaged Properties are situated, and in any other appropriate
public recording office or elsewhere, which recordation shall have been
effected at the Company's expense in the event recordation is either necessary
under Applicable Law or requested by the Purchaser at its sole option.
Section 12.10 Assignment by Purchaser.
The Purchaser shall have the right, without the consent of the Company
to assign, in whole or in part, its interest under this Agreement with respect
to some or all of the Mortgage Loans, and designate any Person to exercise any
rights of the Purchaser hereunder, by executing an Assignment and Assumption
Agreement substantially in the form of Exhibit F hereto and the assignee or
designee shall accede to the rights and obligations hereunder of the Purchaser
with respect to such Mortgage Loans. All references to the Purchaser in this
Agreement shall be deemed to include its assignee or designee.
Section 12.11 Solicitation of Mortgagor.
Neither party shall, after the related Closing Date, take any action to
solicit the refinancing of any Mortgage Loan. It is understood and agreed that
neither (i) promotions undertaken by either party or any affiliate of either
party which are directed to the general public at large, including, without
limitation, mass mailings based upon commercially acquired mailing lists,
newspaper, radio, television advertisements nor (ii) serving the refinancing
needs of a Mortgagor who, without solicitation, contacts either party in
connection with the refinance of such Mortgage or Mortgage Loan, shall
constitute solicitation under this Section.
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IN WITNESS WHEREOF, the Company and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of
the day and year first above written.
XXXXXXX SACHS MORTGAGE COMPANY
By: Xxxxxxx Xxxxx Real Estate
Funding Corp., its General Partner
By: ________________________________
Name:______________________________
Title: ___________________________________
XXXXX FARGO BANK, N.A.,
As Company
By:_________________________________
Name:______________________________
Title:_______________________________
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On the _____ day of August 2004 before me, a Notary Public in and for
said State, personally appeared _____________, known to me to be the __________
_________ of Xxxxxxx Xxxxx Real Estate Funding Corp., the general partner of
Xxxxxxx Sachs Mortgage Company, the partnership that executed the within
instrument and also known to me to be the person who executed it on behalf of
said partnership, and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand affixed my office seal
the day and year in this certificate first above written.
Notary Public
My Commission expires
--------------
STATE OF MARYLAND )
) ss:
COUNTY OF XXXXXXXXXX )
On the _____ day of August 2004 before me, a Notary Public in and for
said State, personally appeared ____________, known to me to be the
_______________ of Xxxxx Fargo Bank, N.A., the national banking association
that executed the within instrument and also known to me to be the person who
executed it on behalf of said bank, and acknowledged to me that such bank
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand affixed my office seal
the day and year in this certificate first above written.
Notary Public
My Commission expires
EXHIBIT A
ASSIGNMENT AND CONVEYANCE
On this ___ day of __________, ____, for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
Xxxxx Fargo Bank, N.A. ("Company"), as (i) the Seller under that certain
Purchase Price and Terms Letter, dated as of ___________, _____ (the "PPTA"),
(ii) the Company under that certain Master Seller's Warranties and Servicing
Agreement, dated as of August 1, 2004 (the "Purchase Agreement" and, together
with the PPTL, the "Agreements") does hereby sell, transfer, assign, set over
and convey to Xxxxxxx Sachs Mortgage Company ("Purchaser") as the Purchaser
under the Agreements, and the Purchaser hereby accepts from the Company,
without recourse, but subject to the terms of the Agreements, all right, title
and interest of, in and to the Mortgage Loans listed on the Mortgage Loan
Schedule attached hereto as Exhibit A (the "Mortgage Loans"). Pursuant to
Section 2.03 of the Purchase Agreement, the Company has delivered the
Custodial Mortgage File to the Custodian. The Retained Mortgage File and the
Servicing File for each Mortgage Loan shall be retained by the Company
pursuant to Section 2.1 of the Purchase Agreement.
In accordance with Article 2 of the Purchase Agreement, the
Purchaser accepts the Mortgage Loans listed on Exhibit A attached hereto.
Notwithstanding the foregoing the Purchaser does not waive any rights or
remedies it may have under the Agreements.
Capitalized terms used herein and not otherwise defined shall have
the meanings set forth in the Purchase Agreement.
[SIGNATURE PAGE FOLLOWS]
A-1
XXXXX FARGO BANK, N.A.
By:_________________________________
Name:______________________________
Title:_______________________________
Accepted and Agreed:
XXXXXXX SACHS MORTGAGE COMPANY
By: Xxxxxxx Xxxxx Real Estate
Funding Corp., its General Partner
By: ________________________________
Name:______________________________
Title: ___________________________________
A-2
EXHIBIT A
MORTGAGE LOAN SCHEDULE
See attached
X-0
XXXXXXX X-0
DATA FILE ELEMENTS
(1) the Mortgagor's first and last name;
(2) a code indicating whether the Mortgaged Property is owner-occupied;
(3) the original date of the Mortgage Loan and the remaining months to
maturity from the Cut-off Date, based on the original amortization
schedule;
(4) the date on which the first Monthly Payment was due on the Mortgage
Loan;
(5) the current Monthly Payment;
(6) the amount of the Monthly Payment as of the Cut-off Date;
(7) the last Due Date on which a Monthly Payment was actually applied to the
Stated Principal Balance;
(8) the original principal amount of the Mortgage Loan;
(9) the first Adjustment Date;
(10) a code indicating the purpose of the loan (i.e., purchase, financing,
Rate/Term Refinancing, Cash-Out Refinancing);
(11) the maximum Mortgage Interest Rate under the terms of the Mortgage Note;
(12) the Mortgage Interest Rate at origination;
(13) the Periodic Interest Rate Cap;
(14) the Index;
(15) the date on which the first Monthly Payment was due on the Mortgage Loan
and, if such date is not consistent with the Due Date currently in
effect, such Due Date;
(16) a code indicating the documentation style (i.e., full (providing two
years employment verification - 2 years W-2's and current paystub or 2
years 1040's for self employed borrowers), alternative or reduced),
(17) a code indicating if the Mortgage Loan is subject to a PMI Policy,
(18) the Appraised Value of the Mortgage Property,
(19) the sale price of the Mortgaged Property, if applicable,
(20) the Mortgagor's and Co-Mortgagor's (if applicable) social security
numbers;
(21) the Mortgagor's FICO score;
A-1-1
(22) the street address of the Mortgaged Property including the city, state,
county and zip code;
(23) term of prepayment penalty;
(24) a code indicating whether the Mortgaged Property is a single family
residence, a 2-4 family dwelling, a PUD, a townhouse, manufactured
housing, a unit in a condominium project, or a mobile home;
(25) a code indicating the product type;
(26) a code indicating the Credit Grade of the Mortgage Loan;
(27) the Loan to Value Ratio;
(28) the Mortgage Interest Rate as of the Cut-off Date;
(29) the stated maturity date;
(30) the original principal amount of the Mortgage Loan;
(31) the sale balance of the Mortgage Loan as of the close of business on the
Cut-off Date, after deduction of payments of principal due on or before
the Cut-off Date;
(32) the Mortgage Loan purpose type;
(33) the next Interest Rate Adjustment Date;
(34) the Gross Margin;
(35) the Note date of the Mortgage Loan;
(36) the Appraised value;
(37) the Mortgagor's and Co-Mortgagor's race;
(38) the Mortgagor's and Co-Mortgagor's gender;
(39) the qualifying monthly income of the Mortgagor;
(40) a code indicating whether the loan was originated through a
correspondent, retail or wholesale channel;
(41) the amount of the monthly principal and interest payment at the time of
origination;
(42) the Mortgage Insurance Certificate Number and percentage of coverage, if
applicable;
(43) borrower date of birth;
(44) a code indicating first time buyer;
(45) the monthly servicing fee;
A-1-2
(46) a code indicating the HMDA data;
(47) whether the Mortgage Loan is convertible,
(48) a code indicating whether the Mortgage Loan is a Time$aver(R) Mortgage
Loan,
(49) a code indicating whether the Mortgage Loan is a Cooperative Loan,
(50) the MIN Number for each MERS Mortgage Loan,
(51) LEX number,
(52) employer name,
(53) subsidy code,
(54) a code indicating whether the Mortgage Loan is a relocation loan;
(55) a code indicating whether the Mortgage Loan is a temporary buydown;
(56) the master service fee, if applicable,
(57) servicer name,
(58) total Loan-to-Value,
(59) the Mortgagor's electronic credit score;
(60) a code indicating whether the Mortgage Loan is a leasehold loan;
(61) a code indicating whether the Mortgage Loan is an Alt A loan,
(62) a code indicating whether the Mortgage Loan is a no ratio loan,
(63) citizenship type code,
(64) lien status,
(65) loan RSCA indicator,
(66) terminal didget
(67) servicer code,
(68) loan term number,
(69) a code indicating whether the Mortgage Loan is a pledged asset,
(70) effective LTV percentage for pledged asset mortgage loans,
(71) a code indicating whether the Mortgage Loan is an interest only loan,
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(72) a code indicating whether the Mortgage Loan is a MERS Mortgage Loan.
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EXHIBIT B
CONTENTS OF EACH MORTGAGE FILE
With respect to each Mortgage Loan, the Retained and Custodial Mortgage
Files shall include the respective items listed below, which shall be
available for inspection by the Purchaser and any prospective Purchaser, and
which shall be retained by the Company in the Retained Mortgage File or
Servicing File or delivered to the Custodian pursuant to the Custodial
Agreement and Sections 2.1 and 2.3 of the Master Seller's Warranties and the
Servicing Agreement to which this Exhibit is attached (the "Agreement"):
With respect to each Custodial Mortgage File:
(1) The original Mortgage Note bearing all intervening endorsements,
endorsed "Pay to the order of ______________, without recourse" and
signed in the name of the Company by an authorized officer (in the event
that the Mortgage Loan was acquired by the Company in a merger, the
signature must be in the following form: "[Company], successor by merger
to [name of predecessor]"; and in the event that the Mortgage Loan was
acquired or originated by the Company while doing business under another
name, the signature must be in the following form: "[Company], formerly
know as [previous name]").
(2) The originals or certified true copies of all assumption, modification,
consolidation or extension agreements, with evidence of recording noted
thereon if recordation is required to maintain the lien of the mortgage
or is otherwise required, or, if recordation is not so required, an
original or copy of any such assumption, modification, consolidation or
extension agreements.
(3) The original Assignment of Mortgage for each Mortgage Loan, in form and
substance acceptable for recording, from the Company to "______________"
or as otherwise directed by the Purchaser. If the Mortgage Loan was
acquired by the Company in a merger, the Assignment of Mortgage must be
made by "[Company], successor by merger to [name of predecessor]." If
the Mortgage Loan was acquired or originated by the Company while doing
business under another name, the Assignment of Mortgage must be by
"[Company], formerly know as [previous name]." Subject to the foregoing
and where permitted under the Applicable Laws of the jurisdiction
wherein the Mortgaged property is located, such Assignments of Mortgage
may be made by blanket assignments for Mortgage Loans secured by the
Mortgaged Properties located in the same county.
(4) The original of any personal endorsement, surety and/or guaranty
agreement executed in connection with the Mortgage Note, if any.
With respect to each Retained Mortgage File:
(5) Except as set forth below, and for each Mortgage Loan that is not a MERS
Mortgage Loan, the original Mortgage, with evidence of recording thereon
or a certified true and correct copy of the Mortgage sent for
recordation. If in connection with any Mortgage Loan, the Company cannot
deliver or cause to be delivered the original Mortgage with evidence of
recording thereon on or prior to the related Closing Date because of a
delay caused by the public recording office where
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such Mortgage has been delivered for recordation or because such
Mortgage has been lost or because such public recording office retains
the original recorded Mortgage, the Company shall deliver or cause to be
delivered to the Custodian, a photocopy of such Mortgage, together with
(i) in the case of a delay caused by the public recording office, an
Officer's Certificate of the Company stating that such Mortgage has been
dispatched to the appropriate public recording office for recordation
and that the original recorded Mortgage or a copy of such Mortgage
certified by such public recording office to be a true and complete copy
of the original recorded Mortgage will be promptly delivered to the
Custodian upon receipt thereof by the Company; or (ii) in the case of a
Mortgage where a public recording office retains the original recorded
Mortgage or in the case where a Mortgage is lost after recordation in a
public recording office, a copy of such Mortgage certified by such
public recording office or by the title insurance company that issued
the title policy to be a true and complete copy of the original recorded
Mortgage.
(6) Originals or certified true copies of all intervening assignments of the
Mortgage necessary to show a complete chain of title from the original
mortgagee to the Company, 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 Company shall
deliver or cause to be delivered to the Custodian, a photocopy of such
intervening assignment, together with (i) in the case of a delay caused
by the public recording office, an Officer's Certificate of the Company
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 or by the title insurance company that issued the title
policy to be a true and complete copy of the original recorded
intervening assignment of mortgage will be promptly delivered to the
Custodian upon receipt thereof by the Company; or (ii) in the case of an
intervening assignment where a public recording office retains the
original recorded intervening assignment or in the case where an
intervening assignment is lost after recordation in a public recording
office, a copy of such intervening assignment certified by such public
recording office to be a true and complete copy of the original recorded
intervening assignment.
(7) The original mortgage policy of title insurance or other evidence of
title such as a copy of the title commitment or copy of the preliminary
title commitment.
(8) Any security agreement, chattel mortgage or equivalent executed in
connection with the Mortgage.
With respect to each Mortgage Loan, the Servicing File shall include each of
the following items to the extent in the possession of the Company or in the
possession of the Company's agent(s):
(9) Verification of Mortgage Insurance.
(10) The original hazard insurance policy and, if required by law, flood
insurance policy, in accordance with Section 4.10 of the Agreement.
(11) Residential loan application.
(12) Mortgage Loan closing statement.
(13) Verification of employment and income, unless originated under the
Company's Limited Documentation program, Xxxxxx Xxx Timesaver Plus.
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(14) Verification of acceptable evidence of source and amount of down
payment.
(15) Credit report on the Mortgagor, if available.
(16) Residential appraisal report.
(17) Photograph of the Mortgaged Property.
(18) Survey of the Mortgaged Property, if required by the title company or
Applicable Law.
(19) Copy of each instrument necessary to complete identification of any
exception set forth in the exception schedule in the title policy, i.e.
map or plat, restrictions, easements, sewer agreements, home association
declarations, etc.
(20) All required disclosure statements.
(21) If available, termite report, structural engineer's report, water
potability and septic certification.
(22) Sales contract, if applicable.
(23) Evidence of payment of taxes and insurance premiums, insurance claim
files, correspondence, current and historical computerized data files,
and all other processing, underwriting and closing papers and records
which are customarily contained in a mortgage loan file and which are
required to document the Mortgage Loan or to service the Mortgage Loan.
(24) Amortization schedule, if available.
(25) Original power of attorney, if applicable.
In the event an Officer's Certificate of the Company is delivered to the
Custodian because of a delay caused by the public recording office in
returning any recorded document, the Company shall deliver to the Custodian,
within 240 days of the related Closing Date, an Officer's Certificate which
shall (i) identify the recorded document, (ii) state that the recorded
document has not been delivered to the Custodian due solely to a delay caused
by the public recording office, (iii) state the amount of time generally
required by the applicable recording office to record and return a document
submitted for recordation, and (iv) specify the date the applicable recorded
document will be delivered to the Custodian. The Company shall be required to
deliver to the Custodian the applicable recorded document by the date
specified in (iv) above. An extension of the date specified in (iv) above may
be requested from the Purchaser, which consent shall not be unreasonably
withheld.
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EXHIBIT C
FORM OF CUSTODIAL AGREEMENT
See attached
C-1
EXHIBIT D
FORM OF MASTER OPINION OF COUNSEL
Re: Sale of Mortgage Loans by
Xxxxx Fargo Bank, N.A. to
Xxxxxxx Xxxxx Mortgage Company
Dear Sir/Madam:
I am _____ of Xxxxx Fargo Bank, N.A. and have acted as counsel to Xxxxx
Fargo Bank, N.A. (the "Company"), with respect to certain matters in
connection with the sale by the Company of the mortgage loans (the "Mortgage
Loans") pursuant to that certain Master Seller's Warranties and Servicing
Agreement (the "Seller's Warranties and Servicing Agreement") by and between
the Company and Xxxxxxx Sachs Mortgage Company (the "Purchaser"), dated as of
August 1, 2004, which sale is in the form of whole Mortgage Loans. Capitalized
terms not otherwise defined herein have the meanings set forth in the Seller's
Warranties and Servicing Agreement.
I have examined the following documents:
1. the Seller's Warranties and Servicing Agreement;
2. the Custodial Agreement;
3. the form of endorsement of the Mortgage Notes; and
4. such other documents, records and papers as I have deemed necessary
and relevant as a basis for this opinion.
To the extent I have deemed necessary and proper, I have relied upon the
representations and warranties of the Company contained in the Seller's
Warranties and Servicing Agreement. I have assumed the authenticity of all
documents submitted to me as originals, the genuineness of all signatures, the
legal capacity of natural persons and the conformity to the originals of all
documents.
Based upon the foregoing, it is my opinion that:
1. The Company is a national banking association duly organized, validly
existing and in good standing under the laws of the United States.
2. The Company has the power to engage in the transactions contemplated
by the Seller's Warranties and Servicing Agreement and the Custodial Agreement
and all requisite power, authority and legal right to execute and deliver the
Seller's Warranties and Servicing Agreement, the Custodial Agreement and the
Mortgage Loans, and to perform and observe the terms and conditions of such
instruments.
3. Each person who, as an officer or attorney-in-fact of the Company,
signed (a) the Seller's Warranties and Servicing Agreement, (b) the Custodial
Agreement , and (c) any other document delivered prior hereto or on the date
hereof in connection with the sale and servicing of the Mortgage Loans in
accordance with the Seller's Warranties and Servicing Agreement was, at the
respective times of such
D-1
signing and delivery, and is, as of the date hereof, duly elected or
appointed, qualified and acting as such officer or attorney-in-fact, and the
signatures of such persons appearing on such documents are their genuine
signatures.
4. Each of the Seller's Warranties and Servicing Agreement, the
Custodial Agreement and the Mortgage Loans, has been duly authorized, executed
and delivered by the Company and is a legal, valid and binding agreement
enforceable in accordance with its terms, subject to the effect of insolvency,
liquidation, conservatorship and other similar laws administered by the
Federal Deposit Insurance Corporation affecting the enforcement of contract
obligations of insured banks and subject to the application of the rules of
equity, including those respecting the availability of specific performance,
none of which will materially interfere with the realization of the benefits
provided thereunder or with the Purchaser's ownership of the Mortgage Loans.
5. The Company has been duly authorized to allow any of its officers to
execute any and all documents by original or facsimile signature in order to
complete the transactions contemplated by the Seller's Warranties and
Servicing Agreement and the Custodial Agreement and in order to execute the
endorsements to the Mortgage Notes and the assignments of the Mortgages, and
the original or facsimile signature of the officer at the Company executing
the Seller's Warranties and Servicing Agreement, the Custodial Agreement, the
endorsements to the Mortgage Notes and the assignments of the Mortgages
represents the legal and valid signature of said officer of the Company.
6. Either (i) no consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery and
performance by the Company of or compliance by the Company with the Seller's
Warranties and Servicing Agreement, the Custodial Agreement or the sale and
delivery of the Mortgage Loans or the consummation of the transactions
contemplated by the Seller's Warranties and Servicing Agreement and the
Custodial Agreement; or (ii) any required consent, approval, authorization or
order has been obtained by the Company.
7. Neither the consummation of the transactions contemplated by, nor the
fulfillment of the terms of the Seller's Warranties and Servicing Agreement
and the Custodial Agreement, will conflict with or results in or will result
in a breach of or constitutes or will constitute a default under the charter
or by-laws of the Company, the terms of any indenture or other agreement or
instrument to which the Company is a party or by which it is bound or to which
it is subject, or violates any statute or order, rule, regulations, writ,
injunction or decree of any court, governmental authority or regulatory body
to which the Company is subject or by which it is bound.
8. There is no action, suit, proceeding or investigation pending or, to
the best of my knowledge, threatened against the Company which, in my opinion,
either in any one instance or in the aggregate, may result in any material
adverse change in the business, operations, financial condition, properties or
assets of the Company or in any material impairment of the right or ability of
the Company to carry on its business substantially as now conducted or in any
material liability on the part of the Company or which would draw into
question the validity of the Seller's Warranties and Servicing Agreement, and
the Custodial Agreement, or of any action taken or to be taken in connection
with the transactions contemplated thereby, or which would be likely to impair
materially the ability of the Company to perform under the terms of the
Seller's Warranties and Servicing Agreement and the Custodial Agreement.
9. For purposes of the foregoing, I have not regarded any legal or
governmental actions, investigations or proceedings to be "threatened" unless
the potential litigant or governmental authority has manifested to the legal
department of the Company or an employee of the Company responsible for the
receipt of process a present intention to initiate such proceedings; nor have
I regarded any legal or
D-2
governmental actions, investigations or proceedings as including those that
are conducted by state or federal authorities in connection with their routine
regulatory activities. The sale of each Mortgage Note and Mortgage as and in
the manner contemplated by the Seller's Warranties and Servicing Agreement is
sufficient fully to transfer all right, title and interest of the Company
thereto as noteholder and mortgagee, apart from the rights to service the
Mortgage Loans pursuant to the Seller's Warranties and Servicing Agreement.
10. The form of endorsement that is to be used with respect to the
Mortgage Loans is legally valid and sufficient to duly endorse the Mortgage
Notes to the Purchaser. Upon the completion of the endorsement of the Mortgage
Notes and the completion of the assignments of the Mortgages, and the
recording thereof, the endorsement of the Mortgage Notes, the delivery to the
Custodian of the completed assignments of the Mortgages, and the delivery of
the original endorsed Mortgage Notes to the Custodian would be sufficient to
permit the entity to which such Mortgage Note is initially endorsed at the
Purchaser's direction, and to whom such assignment of Mortgages is initially
assigned at the Purchaser's direction, to avail itself of all protection
available under Applicable Law against the claims of any present or future
creditors of the Company, and would be sufficient to prevent any other sale,
transfer, assignment, pledge or hypothecation of the Mortgages and the
Mortgage Notes by the Company from being enforceable, such that in a properly
presented and argued case under title 11, United States Code (the "Bankruptcy
Code"), in which the Company were the debtor, a bankruptcy court having
jurisdiction over the Company would consider the transfer of the Mortgage
Loans from the Company to the Purchaser to be a true sale of the Mortgage
Loans from the Company to the Purchaser and not a secured loan by the
Purchaser to the Company and, accordingly, the Mortgage Loans and the payments
and other collections thereon (other than those at any given time that may be
commingled with unrelated funds held by the Company) and the proceeds thereof
transferred to the Purchaser by the Company in accordance with the Company's
Warranties and Servicing Agreement would not be deemed property of the
Company's estate for purposes of Section 541 of the Bankruptcy Code or be
subject to the automatic stay provisions of Section 362 of the Bankruptcy
Code.
This opinion is given to you for your sole benefit, and no other person
or entity is entitled to rely hereon except that the purchaser or purchasers
to which you initially and directly resell the Mortgage Loans may rely on this
opinion as if it were addressed to them as of its date.
Sincerely,
D-3
EXHIBIT E
ITEMS TO BE INCLUDED IN MONTHLY REMITTANCE ADVICE
On the related Closing Date, the Company shall deliver to the Purchaser
an initial set-up report (the "Initial Set-up Report"), dated as of the
related Cut-off Date, which shall set forth certain information regarding the
Mortgage Pool. Such information shall include, without limitation, the
principal balance of each Mortgage Loan, the interest rate, delinquency status
and any other information requested by the Purchaser. For each month after the
related Closing Date, the Company shall provide a monthly remittance advice
report (the "Monthly Remittance Advice Reports") to the Purchaser, which shall
set forth for each Mortgage Loan, the trial balance, interest rate,
delinquency, foreclosure and related default information, and such other
information as may be requested by the Purchaser. The Initial Set-up Report
and the Monthly Remittance Advice Reports will be delivered in an Excel format
or in such other electronic format as agreed to by the parties. Each Initial
Set-up Report and Monthly Remittance Advice Report shall contain only such
information as is readily available to the Company and is mutually agreed to
by Company and the Purchaser.
E-1
EXHIBIT F
FORM OF ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT made this _____ day of
__________________, 200_, among Xxxxx Fargo Bank, N.A., a ___________________
(the "Servicer"), _________________________ a ________________________ (the
"Assignee"), and _____________________________, a _______________________ (the
"Assignor).
WHEREAS, Xxxxxxx Sachs Mortgage Company and the Servicer have
entered into a certain Master Seller's Warranties and Servicing Agreement
dated as of August 1, 2004 (the "Servicing Agreement"), pursuant to which the
Servicer sold certain mortgage loans listed on the mortgage loan schedule
attached as an exhibit to the Servicing Agreement;
WHEREAS, the Assignee has agreed on certain terms and conditions
to purchase from the Assignor certain mortgage loans (the "Mortgage Loans"),
which Mortgage Loans are subject to the provisions of the Servicing Agreement
and are listed on the mortgage loan schedule attached as Exhibit 1 hereto (the
"Mortgage Loan Schedule");
WHEREAS, pursuant to a Trust Agreement, dated as of [______ __],
200__ (the "Trust Agreement"), between GS Mortgage Securities Corp., as
Depositor, and [______], as Trustee (the "Trustee"), the Assignee will
transfer the Mortgage Loans to the Trustee, together with the Assignee's
rights in the Sale and Servicing Agreement;
NOW THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
1. Assignment and Assumption.
(a) The Assignor hereby assigns to the Assignee all of its
right, title and interest in and to the Mortgage Loans and Servicing
Agreement, to the extent relating to the Mortgage Loans (other than the rights
of the Assignor to indemnification thereunder), and the Assignee hereby
assumes all of the Assignor's obligations under the Servicing Agreement, to
the extent relating to the Mortgage Loans from and after the date hereof, and
the Servicer hereby acknowledges such assignment and assumption and hereby
agrees to the release of the Assignor from any obligations under the Servicing
Agreement from and after the date hereof, to the extent relating to the
Mortgage Loans. Notwithstanding the foregoing, it is understood that the
Assignor is not released from liability for any breaches of the
representations and warranties made in Section 3.6 of the Servicing Agreement,
and the Assignee is not undertaking any such liability hereunder.
(b) The Assignor represents and warrants to the Assignee that the
Assignor has not taken any action which would serve to impair or encumber the
Assignor's ownership interest in the Mortgage Loans since the date of the
Servicing Agreement.
(c) The Servicer and the Assignor shall have the right to amend,
modify or terminate the Servicing Agreement without the joinder of the
Assignee with respect to mortgage loans not conveyed to the Assignee
hereunder, provided, however, that such amendment, modification or termination
shall not affect or be binding on the Assignee.
2. Accuracy of Servicing Agreement.
F-1
The Servicer and the Assignor represent and warrant to the
Assignee that (i) attached hereto as Exhibit 2 is a true, accurate and
complete copy of the Servicing Agreement, (ii) the Servicing Agreement is in
full force and effect as of the date hereof, (iii) the Servicing Agreement has
not been amended or modified in any respect and (iv) no notice of termination
has been given to the Servicer under the Servicing Agreement.
3. Recognition of Purchaser.
From and after the date hereof, the Servicer shall note the
transfer of the Mortgage Loans to the Assignee in its books and records, shall
recognize the Assignee as the owner of the Mortgage Loans and shall service
the Mortgage Loans for the benefit of the Assignee pursuant to the Servicing
Agreement, the terms of which are incorporated herein by reference. It is the
intention of the Assignor, Servicer and Assignee that the Servicing Agreement
shall be binding upon and inure to the benefit of the Servicer and the
Assignee and their successors and assigns.
4. Representations and Warranties of the Assignee. The Assignee
hereby represents and warrants to the Assignor as follows:
(a) Decision to Purchase. The Assignee represents and
warrants that it is a sophisticated investor able to evaluate the risks and
merits of the transactions contemplated hereby, and that it has not relied in
connection therewith upon any statements or representations of the Assignor or
the Servicer other than those contained in the Servicing Agreement or this
Agreement.
(b) Authority. The Assignee hereto represents and warrants
that it is duly and legally authorized to enter into this Agreement and to
perform its obligations hereunder and under the Servicing Agreement.
(c) Enforceability. The Assignee hereto represents and
warrants that this Agreement has been duly authorized, executed and delivered
by it and (assuming due authorization, execution and delivery thereof by each
of the other parties hereto) constitutes its legal, valid and binding
obligation, enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
5. Representations and Warranties of the Assignor. The Assignor
hereby represents and warrants to the Assignee as follows:
(a) The Assignor has been duly organized and is validly
existing as a limited partnership in good standing under the laws of the State
of New York with full power and authority (corporate and other) to enter into
and perform its obligations under the Servicing Agreement and this Assignment
Agreement.
(b) This Assignment Agreement has been duly executed and
delivered by the Assignor, and, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a legal, valid, and
binding agreement of the Assignor, enforceable against it in accordance with
its terms, subject to bankruptcy, insolvency, reorganization, moratorium, or
other similar laws affecting creditors' rights generally and to general
principles of equity regardless of whether enforcement is sought in a
proceeding in equity or at law.
F-2
(c) The execution, delivery and performance by the Assignor
of this Assignment Agreement and the consummation of the transactions
contemplated thereby do not require the consent or approval of, the giving of
notice to, the registration with, or the taking of any other action in respect
of, any state, federal or other governmental authority or agency, except such
as has been obtained, given, effected or taken prior to the date thereof.
(d) The execution and delivery of this Assignment Agreement
have been duly authorized by all necessary corporate action on the part of the
Assignor; neither the execution and delivery by the Assignor of this
Assignment Agreement, nor the consummation by the Assignor of the transactions
therein contemplated, nor compliance by the Assignor with the provisions
thereof, will conflict with or result in a breach of, or constitute a default
under, any of the provisions of the governing documents of the Assignor or any
law, governmental rule or regulation or any material judgment, decree or order
binding on the Assignor or any of its properties, or any of the provisions of
any material indenture, mortgage, deed of trust, contract or other instrument
to which the Assignor is a party or by which it is bound.
(e) There are no actions, suits or proceedings pending or,
to the knowledge of the Assignor, threatened, before or by any court,
administrative agency, arbitrator or governmental body (A) with respect to any
of the transactions contemplated by this Assignment Agreement or (B) with
respect to any other matter that in the judgment of the Assignor will be
determined adversely to the Assignor and will if determined adversely to the
Assignor materially adversely affect its ability to perform its obligations
under this Assignment Agreement.
(f) Except for the sale to the Assignee, the Assignor has
not assigned or pledged any Mortgage Note or the related Mortgage or any
interest or participation therein.
(g) The Assignor has not satisfied, canceled, or
subordinated in whole or in part, or rescinded the Mortgage, and the Assignor
has not released the Mortgaged Property from the lien of the Mortgage, in
whole or in part, nor has the Assignor executed an instrument that would
effect any such release, cancellation, subordination, or rescission. The
Assignor has not released any Mortgagor, in whole or in part, except in
connection with an assumption agreement or other agreement approved by the
related Federal Insurer, to the extent such approval was required.
It is understood and agreed that the representations and
warranties set forth in this Section 5 shall survive delivery of the
respective Mortgage Files to the Custodian and shall inure to the benefit of
the Assignee and its assigns notwithstanding any restrictive or qualified
endorsement or assignment. Upon the discovery by the Assignor or the Assignee
and its assigns of a breach of the foregoing representations and warranties,
the party discovering such breach shall give prompt written notice to the
other parties to this Assignment Agreement, and in no event later than two (2)
Business Days from the date of such discovery. It is understood and agreed
that the obligations of the Assignor set forth in Section 6 to repurchase a
Mortgage Loan constitute the sole remedies available to the Assignee and its
assigns on their behalf respecting a breach of the representations and
warranties contained in this Section 5. It is further understood and agreed
that the Assignor shall be deemed not to have made the representations and
warranties in this Section 5 with respect to, and to the extent of,
representations and warranties made, as to the matters covered in this Section
5, by the Servicer in the Servicing Agreement (or any officer's certificate
delivered pursuant thereto).
It is understood and agreed that the Assignor has made no
representations or warranties to the Assignee other than those contained in
this Section 5, and no other affiliate of the Assignor has made any
representations or warranties of any kind to the Assignee.
F-3
6. Repurchase of Mortgage Loans.
Upon discovery or notice of any breach by the Assignor of any
representation, warranty, or covenant under this Assignment Agreement that
materially and adversely affects the value of any Mortgage Loan or the
interest of the Assignee therein (it being understood that any such defect or
breach shall be deemed to have materially and adversely affected the value of
the related Mortgage Loan or the interest of the Assignee therein if the
Assignee incurs a loss as a result of such defect or breach), the Assignee
promptly shall request that the Assignor cure such breach and, if the Assignor
does not cure such breach in all material respects within 60 days from the
date on which it is notified of the breach, the Assignee may enforce the
Assignor's obligation hereunder to purchase such Mortgage Loan from the
Assignee. Notwithstanding the foregoing, however, if such breach is a
Qualification Defect, such cure or repurchase must take place within 75 days
of the Defect Discovery Date.
In the event the Servicer has breached a representation or
warranty under the Servicing Agreement that is substantially identical to a
representation or warranty breached by the Assignor hereunder, the Assignee
shall first proceed against the Servicer. If the Servicer does not within 60
days after notification of the breach, take steps to cure such breach (which
may include certifying to progress made and requesting an extension of the
time to cure such breach, as permitted under the Servicing Agreement) or
purchase, or substitute for the Mortgage Loan, the Trustee shall be entitled
to enforce the obligations of the Assignor hereunder to cure such breach or to
purchase the Mortgage Loan from the Trust. In such event, the Assignor shall
succeed to the rights of the Assignee to enforce the obligations of the
Servicer to cure such breach or repurchase such Mortgage Loan under the terms
of the related Servicing Agreement with respect to such Mortgage Loan
Except as specifically set forth herein, the Assignee shall have
no responsibility to enforce any provision of this Assignment Agreement, to
oversee compliance hereof, or to take notice of any breach or default thereof.
7. Continuing Effect.
Except as contemplated hereby, the Servicing Agreement shall
remain in full force and effect in accordance with its terms.
8. Governing Law.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS HEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
9. Notices.
Any notices or other communications permitted or required
hereunder or under the Servicing Agreement shall be in writing and shall be
deemed conclusively to have been given if personally delivered at or mailed by
registered mail, postage prepaid, and return receipt requested or transmitted
by telex, telegraph or telecopier and confirmed by a similar mailed writing,
to: (i) in the case of the Servicer, [_________________, ____________________]
or such address as may hereafter be furnished by the Servicer; (ii) in the
case of the Assignee, _______________, _______________, Attention:
________________, or such other address as may hereafter be furnished by the
Assignee, and (iii) in the case of the Assignor, __________________,
Attention: _________________, or such other address as may hereafter be
furnished by the Assignor.
F-4
10. Counterparts.
This Agreement may be executed in counterparts, each of which when
so executed shall be deemed to be an original and all of which when taken
together shall constitute one and the same instrument.
11. Definitions.
Any capitalized term used but not defined in this Agreement has
the same meaning as in the Servicing Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
ASSIGNEE:
By: ________________________________________________
Name: ________________________________________________
Title:________________________________________________
ASSIGNOR:
By: ________________________________________________
Name: ________________________________________________
Title:________________________________________________
Acknowledged by:
SERVICER:
By: ______________________________
Name: ______________________________
Title:______________________________
F-5
EXHIBIT G
FORM OF COMPANY OFFICER'S CERTIFICATE
I, ______________________, hereby certify that I am a duly elected [Vice
President] of Xxxxx Fargo Bank, N.A., a national banking association organized
under the laws of the United States (the "Company") and further as follows:
1. Attached hereto as Exhibit 1 is a true, correct and complete copy of
the articles of association of the Company which is in full force and effect
on the date hereof.
2. Attached hereto as Exhibit 2 is a true, correct and complete copy of
the bylaws of the Company which are in effect on the date hereof.
3. The execution and delivery by the Company of the Seller's Warranties
and Servicing Agreement, dated as of August 1, 2004 (the "Sale and Servicing
Agreement") and the Custodial Agreement, dated as of August 1, 2004 (the
"Custodial Agreement" and, together with the Sale and Servicing Agreement, the
"Agreements") are in the ordinary course of business of the Company.
4. A true and correct copy of the resolution of the Mortgage Banking
Committee of the Board of Directors of the Company authorizing the Company to
enter into the Agreements is attached hereto as Exhibit 3.
5. Each person who, as an officer or representative of the Company,
signed (a) the Sale and Servicing Agreement, or (b) any other document
delivered prior hereto or on the date hereof in connection with any
transaction described in the Agreements was, at the respective times of such
signing and delivery a duly elected or appointed, qualified and acting officer
or representative of the Company and the signatures of such persons appearing
on such documents are their genuine signatures.
6. No proceedings for dissolution, merger, consolidation, liquidation,
conservatorship or receivership of the Company or for the sale of all or
substantially all of its assets is pending, or to my knowledge threatened, and
no such proceeding is contemplated by the Company.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the seal
of the Company.
Dated: By:
Title: Vice President
I, __________________ the Secretary of __________________________,
hereby certify that _______________________ is a duly elected and acting Vice
President of the Company and that the signature appearing above is his genuine
signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated: By:
Title: Secretary
G-1
EXHIBIT H
FORM OF ANNUAL CERTIFICATION
I, ______________________, Vice President of Xxxxx Fargo Bank, N.A. (the
"Servicer"), certify to __________________, and its officers, directors,
agents and affiliates (in its role as ____________, the "____________"), and
with the knowledge and intent that they will rely upon this certification,
that:
(i) Based on my knowledge, the information relating to the Mortgage Loans and
the servicing thereof submitted by the Servicer to the ___________ which is
used in connection with preparation of the reports on Form 8-K and the annual
report on Form 10-K filed with the Securities and Exchange Commission with
respect to each transaction listed on the attached Exhibit A, taken as a
whole, does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of the
date of this certification;
(ii) The servicing information required to be provided to the _____________ by
the Servicer under the relevant servicing agreements has been provided to the
______________;
(iii) I am responsible for reviewing the activities performed by the Servicer
under the relevant servicing agreements and based upon the review required by
the relevant servicing agreements, and except as disclosed in the Annual
Statement of Compliance, the Annual Independent Public Accountant's Servicing
Report and all servicing reports, officer's certificates and other information
relating to the servicing of the Mortgage Loans submitted to the ___________,
the Servicer has, as of the date of this certification fulfilled its
obligations under the relevant servicing agreements; and
(iv) I have disclosed to the ___________ all significant deficiencies relating
to the Servicer's compliance with the minimum servicing standards in
accordance with a review conducted in compliance with the Uniform Single
Attestation Program for Mortgage Bankers or similar standard as set forth in
the relevant servicing agreements.
(v) The Servicer shall indemnify and hold harmless the ___________ and its
officers, directors, agents and affiliates from and against any losses,
damages, penalties, fines, forfeitures, reasonable legal fees and related
costs, judgments and other costs and expenses arising out of or based upon a
breach by the Servicer or any of its officers, directors, agents or affiliates
of its obligations under this Certification or the negligence, bad faith or
willful misconduct of the Servicer in connection therewith. If the
indemnification provided for herein is unavailable or insufficient to hold
harmless the ___________, then the Servicer agrees that it shall contribute to
the amount paid or payable by the ___________ as a result of the losses,
claims, damages or liabilities of the ___________ in such proportion as is
appropriate to reflect the relative fault of the ___________ on the one hand
and the Servicer on the other in connection with a breach of the Servicer's
obligations under this Certification or the Servicer's negligence, bad faith
or willful misconduct in connection therewith.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of the
Servicer.
Dated: By:
Name:
Title:
X-0
X-0
